Harendra Kumar & Ors. vs Union Of India & Ors.

Delivered by: Mr. Anjani Nandan Sharan, Member (A)

Heard Shri Rajesh Kumar, learned counsel for the applicants and Ms. Anjana Singh, learned counsel for the official respondents and Shri Shrey Jaiswal, learned counsel for the private respondents.

The instant Original Application, under section 19 of the Administrative Tribunal Act, 1985, has been filed by the applicants, seeking following reliefs:

The facts, as stated by the applicants, are that the applicants are presently working as Technician/Signal in the Signal and Telecommunication (S&T) Department of Prayagraj Division, North Central Railway. Subsequently, a notification dated 20.10.2023 was issued by the respondents for filling up 19 posts of Junior Engineer-II/Signal in Level-6 against the 20% LDCE quota. The applicants, being eligible for the same, applied through proper channel. Thereafter, the written examination was conducted on 26.04.2024 and the applicants were declared successful vide result dated 13.08.2024. Thereafter, the provisional/final panel was issued on 30.10.2024, and the marks of the candidates were published on 06.11.2024. The applicants had secured more than the prescribed 60% qualifying marks, as per clause 4 of the notification dated 20.10.2023. The applicant-1 secured 70 marks out of 80 (s. No. 14), the applicant-2 secured 69.25 marks (S.no. 18) and applicant-3 secured 68.15 marks (s.no. 22). However, the applicants were not included in the final panel.

In response, short counter affidavit has been filed by the official respondents in the matter stating therein that the selection for the post of Junior Engineer Signal against 20% LDCE quota of S&T department was initiated by the department and a notification was issued on 20.10.2023 for filling up 19 vacancies (UR-13, SC-04 and ST-02). A total of 181 employees applied to appear for the same. After scrutiny, 170 employees were found eligible to appear in the examination and in this regard an eligibility list was issued vide letter dated 15.12.2023. However, due to some employees‟ application being pending in their respective depots in spite of submitting it in due time, taking a sympathetic view, eligibility list was revised and a final revised eligibility list was issued on 20.02.2024 wherein 233 employees were found eligible and 12 employees were found ineligible. Thereafter, a written exam was conducted on 26.04.2024 and 117 candidates were found eligible to be considered for further process of adjudging their suitability under head “Record of service” by the selection committee. After examination, vide letter dated 30.10.2024, a total of 18 candidates were found suitable to be placed in the Provisional Panel for promotion to the post of Junior Engineer

Counter affidavit has also been filed by the private respondents 5-7 stating therein that the respondent-5 i.e Sunil Kumar Meena, after being selected, was issued a letter dated 08.07.2020 for appointment and training, and thereafter he was appointed to the post of Technician Grade-III on 10.07.2020. He completed his training on 15.01.2022 and thereafter was posted as Tech-III and had completed more than three years' service. The respondent-6 i.e. Shri Man Raj Meena, after being selected, was issued a letter dated 08.07.2020 for appointment and training, and thereafter he was appointed to the post of Technician Grade-Ill on 10.07.2020. He completed his training on 15.01.2022 and thereafter was posted as Tech-III and completed more than three years' service. The respondent-7 i.e. Shri Subhkesh Meena, after being selected, was issued a letter dated 08.07.2020 for appointment and training and thereafter he was appointed to the post of Technician Grade-III on 13.07.2020. He completed his training on 19.02.2022 and thereafter posted as Tech-III and completed more than three years' service. Accordingly, all the private respondents were eligible to appear in the departmental examination in question. All of them appeared and cleared the said examination and its subsequent stages.

The applicants have filed rejoinder affidavit to the short counter affidavit filed by the official respondents denying the averments made by the respondents and have stated therein that the mandatory eligibility in terms of Railway L.No.E(NG)99/PM7 dated 25.08.2003 required was that regular employees working in the post of Sr. Technician / Technician-1/Technician-II and Technician-III of signal cadre of S&T department of Prayagraj division, with minimum three years of regular service will be eligible to apply against the said notification, whereas, private respondents No.5, 6 and 7 are neither a regular employee nor completed three years regular service as on 20.10.2023 i.e. date of notification. It is further submitted that the three years record of service (APAR) marks of private respondents was assessed whereas, private respondents have only 01 year and 9 months service as probationer not regular service as on 20.10.2023 i.e. date of notification. The applicants have produced the short service particulars of the private respondents, which are reproduced as under:

The applicants have filed written submissions reiterating their averments and stating therein that the applicant-1 had secured an aggregate of 72 marks, however, the respondents have recorded 70 marks. Further, the APAR for the year 2020-21 was upgraded from Good (3 marks) to Very Good (4 Marks). But this upgradation was not taken into consideration. The applicants alleged that the official respondents failed to note the minimum baseline threshold of two years of regular service with regard to the private respondents. As per the applicants, private respondents 5 and 7 had rendered only 17 days of regular service and private respondent 6 had only 6 months of regular service. Thus, they had not possessed a single valid APAR on the regular post. Furthermore, the eligibility criteria for the post in question was 10+2 Science Stream (Physics & Maths). However, the private respondent-6 possessed 10+2 in PCB (Biology) stream, lacking mathematics. The applicants have relied upon the judgment of Hon‟ble Supreme Court in the case of Krishna Rai (dead) vs. Banaras Hindu University (2022) 8 SCC 713, wherein it was held that “It is settled principle that principle of estoppel cannot override the law. The manual duly approved by the Executive Council will prevail over any such principle of estoppel or acquiescence... Something that is illegal cannot convert itself into something legal by the act of a third person." (Paras 23 & 31). The Supreme Court in the case of Ramjit Singh Kardam & Ors. v. Sanjeev Kumar & Ors. (2020) 20 SCC 209 held: "When candidate is not aware of the criteria of selection under which he was subjected in the process and the said criteria for the first time is published along with final result... he cannot be estopped from challenging the criteria of selection and the entire process of selection." (Para 39). The Supreme Court in the matter of Ankita Thakur & Ors. v. H.P. Staff Selection Commission & Ors. (2023) 14 SCC 547 heldthat "The relaxation/clarifactory order... being after the last date fixed by the advertisements... for receipt of applications from candidates, is not legally sustainable... particularly, when no opportunity was afforded to similarly placed persons, who might have been left out, to apply and compete..." (Para 45). The Apex Court in Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405 held that when a statutory authority makes an order based on certain grounds, its validity must be judged solely by the reasons mentioned therein and cannot be supplemented by fresh reasons in the shape of affidavits. This Tribunal inAnshul Garg v. North Central Railway, O.A. 1105 of 2022 held that eligibility for promotion and seniority are distinct factors that cannot be conflated to negate the candidature of an applicant who has already qualified the selection stages. Furthermore, in J. Velmurugan v. Union of India, 2015 SCC ONLINE CAT 5936 the Tribunal established that a selection process, once initiated and having reached the stage of a written test, creates a legitimate expectation that it shall be concluded based on the rules notified at the inception.

Written Submissions have been filed by the official respondents, stating therein that the Railway Board, by its instructions beginning with Letter No. E(NG)1/81/PM-1/76 dated 25.04.1981, subsequently clarified on 18.01.1993, reiterated by letter dated 25.08.2003, and finally reaffirmed vide RBE No. 104/2019 dated 25.06.2019, consistently held that the period spent in initial training immediately preceding regular appointment shall be reckoned as qualifying service for appearing in departmental selections and Limited Departmental Competitive Examinations. The applicants' allegation that the respondents enlarged the eligibility list from 181 to 233 candidates after issuance of the notification is legally misconceived as no eligibility condition was altered, no qualification was relaxed, no cut-off date was modified and no fresh criterion was introduced. Further, this Tribunal in Ankur Srivastava v. Union of India (O.A. No. 394 of 2021) also held that the period of initial training is liable to be counted for determining eligibility to participate in departmental LDCE selections. Furthermore, Applicant-1 attempted to reopen his APAR grading for the year 2020-21 however, his representation was considered in accordance with the applicable rules and was rejected by a detailed, reasoned order dated 10.12.2024. Therefore, the selection process was conducted strictly in accordance with the notification and every candidate was assessed uniformly on the basis of the written examination, record of service including APAR, and aggregate merit. The applicants, having failed to secure sufficient aggregate merit, cannot seek judicial alteration of the merit list.

The private respondents have also filed written submissions reiterating their averments and relied upon the judgment of the Hon’ble Supreme Court in the case of Dhananjay Malik & Ors vs State of Uttranchal & Ors (2008) 4 and also Ramesh Chandra Shah & Ors vs Anil Joshi & Ors (2013) 11 SCC-309 Supreme Court, which have also been followed by this Tribunal in the case Rao Avinash vs Union of India & Ors passed in OA No. 297/2020.

Submissions of the learned counsel for the parties have been heard and records have been gone through.

As the facts of the case have already been narrated above, the same are not reiterated for the sake of brevity. The applicants have approached this Tribunal challenging the impugned panel dated 30.10.2024 in respect of private respondents 5, 6 and 7. In the instant Original Application, the applicants have alleged that the private respondents were not fulfilling the requisite eligibility criteria for the examination in question on the ground that they had not completed three years of regular service as on 20.10.2023. However, their names were included in the final panel dated 30.10.2024.

The respondents had issued a notification dated 20.10.2023 for filling up posts of JE/Signal against the 20% LDCE quota of Signal Cadre. The eligibility criteria is quoted as under:

From the eligibility clause contained in the notification dated 20.10.2023, it is evident that the requirement of three years' regular service was prescribed as one of the eligibility criteria on the date of notification. The respondents have placed reliance upon the Railway Board's instructions dated 18.01.1993 and Railway Board's instructions dated 25.06.2019, whereby the period of initial training immediately preceding regular appointment is required to be counted for the purpose of eligibility for departmental selections/LDCEs. As per the private respondents, they were appointed and sent for training in 2020 and after completion of their training they were posted against regular posts in 2022. The relevant portion of the Railway Board's instructions dated 25.06.2019 is reproduced as under:

It is also not in dispute that the eligibility list was issued during the selection process and the applicants admittedly participated in the written examination and subsequent stages of selection without raising any objection to the eligibility of the private respondents at the appropriate stage. The applicants have challenged their inclusion only after the result/panel was declared. Similar issue fell before the Hon'ble Supreme Court in Dhananjay Malik & Ors. v. State of Uttaranchal & Ors., (2008) 4 SCC 171, wherein it has been held that a candidate who participates in the selection process without objection cannot, after being unsuccessful, challenge the selection process or the eligibility conditions on which the selection was conducted. The relevant portion of Dhananjay Malik & Ors (supra) is quoted as under:

The above settled legal position is reiterated in the case of Ramesh Chandra Shah and others (supra) and the relevant portion of the same is reproduced as under:

In the present case, the applicants were aware of the eligibility conditions and participated in the selection process. No objection/ challenge was made by them against the eligibility list introduced by the respondents, which included the private respondents too. Furthermore, the material placed on record does not establish that the respondents acted contrary to the Railway Board's applicable instructions while counting the period of initial training for the purpose of eligibility. Moreover, the judgments relied upon by the applicants concerning relaxation of eligibility conditions or introduction of a new criterion after commencement of the selection process are distinguishable on facts, as the respondents have not introduced any new eligibility criterion subsequent to the notification but have acted as per the existing Railway Board instructions.

As regards the grievance of applicant-1 with regard to the APAR for the year 2020-21, the record indicates that his representation regarding the grading was considered by the competent authority and was rejected by a reasoned order dated 10.12.2024. The relevant portion of the same is reproduced as under:

In view of above judicial pronouncements as well as instructions issued by the Railway Board, we do not find sufficient ground to hold that private respondents-5 to 7 were ineligible to participate in the selection conducted pursuant to the notification dated 20.10.2023 or that their inclusion in the panel dated 30.10.2024 was contrary to the applicable rules/instructions. The applicants, having participated in the selection process without raising a timely objection and having failed to establish any illegality in the preparation of the panel, cannot seek cancellation of the selection panel merely because they were not included in the final panel. Mere participation in the selection process does not entitle the candidate a right to appointment.

In the light of above the impugned panel dated 30.10.2024 challenged by the applicants in respect of private respondents Nos. 5 to 7, does not warrant any interference by this Tribunal. Accordingly, the instant Original Application is liable to be dismissed and is, accordingly, dismissed. There shall be no order as to costs.

Interim Order, if any, stands discharged.

All the related MAs stand disposed of.