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Judgment
O R D E R
By Hon’ble Mr. Anand Mathur, Member (A): Learned counsel for the applicant stated as under:-
Pursuant to the advertisement issued by the Railway Recruitment Cell, Northern Railway to fill up Group ‘D’ vacant posts in Pay Band-I(Rs.5200-20200) + GP Rs.1800/-, the applicant applied and had appeared vide Roll No.301989700 in the written examination under ‘OBC’ category and was declared successful. Subsequently, he appeared in the Physical Efficiency Test (PET) in which also he was found fit and was shortlisted for medical examination. He was called for document verification on 31.07.2015. He presented himself before the office of DRM, Firozpur (Punjab) on the stipulated date and time along with certificates/documents. The department took his signatures, LTI (Left Thumb Impression) and handwriting samples and informed him that offer of appointment to a recommended post would be given to him.
When the applicant checked his status on the official website of the respondents, he came to know that his case was provisionally cleared for medical examination and the date and venue for the same would be informed in 30-45 days. When a considerable time had elapsed and no communication was received by the applicant, he approached the department to know the status, he was informed orally that his signatures/LTI etc. have been sent to CFSL for further verification.
Finally, the applicant received a communication dated 03.12.2015 whereby he was again called for document verification and medical examination to be scheduled between 14th and 18th December, 2015 at Firozpur (Punjab). The applicant appeared in the office of DRM, Firozpur at the given date and time and his signatures, LTI and handwriting samples were again taken. After that, he was informed that offer of appointment to a recommended post would be sent to him shortly. He was subjected to medical examination where he was found ‘Fit’ and was declared ‘provisionally cleared for employment’ which was also uploaded on the respondent’s website. However, on checking the status from the official website of the respondents in September, 2016, the applicant came to know that his candidature had been rejected for the reason that he could not be allotted any post as per his medical fitness (i.e. B-2/C-1/C-2), as all such notified posts in these categories have already been filled up at the particular point of time, when he became eligible for consideration. However, before rejecting his candidature, the applicant has not been afforded personal hearing or issued any show cause notice.
Aggrieved, the applicant filed a representation dated 19.10.2016 against rejection of his candidature by the respondents as shown in the website. The respondents have neither responded to his representation nor offered appointment to any post in PB-I (Rs.5200-20200) + GP Rs.1800/-. Hence, the applicant has filed the instant OA seeking the following relief(s):-
“To quash and set aside the act/order/communication of the respondent of rejecting the selection of applicant (as uploaded on respondent website in the month of September 2016) on the basis of so called expert report and to further direct the respondents that applicant be given offer of appointment to the post in pay band-I (Rs.5200-20200) + GP Rs.1800/- initiated by Northern Railway in pursuance of Employment Notice No.220-E/Open Mkt./RRC/2013 and to further appoint to the post in pay band-I (Rs.5200-20200) + GP Rs.1800/- initiated by Northern Railway in pursuance of Employment notice No.220-E/Open Mkt./RRC/2012 (as per merit obtained by applicant) forthwith with all consequential benefit including seniority & promotion and pay & allowances.”
Per contra, the respondents have filed a counter affidavit opposing the OA. Though the factual matrix of the applicant’s case have not been disputed by the respondents, yet they have submitted that by the time, the applicant’s medical examination was completed, vacancies in his category had already been filled up and, as such, he could not be adjusted. Therefore, his candidature has rightly been rejected.
The applicant filed rejoinder to the counter affidavit filed on behalf of the respondents more or less reiterating the averments made in the OA.
We have heard Sh. Sachin Chauhan, learned counsel for the applicant and Sh. Rajeev Kumar, learned counsel for the respondents and have perused the material available on record.
During the course of hearing, learned counsel for the applicant argued that rejection of applicant’s candidature on the ground that by the time, his medical examination was complete, vacancies in his category had already been filled, is not tenable in the eyes of law, as rejection of applicant’s candidature was purely on account of the delay caused by the respondents themselves in finalizing his selection, and that his rejection was not in accordance with law and against the principles of natural justice.
In support of the claim of the applicant, learned counsel for the applicant submitted that a coordinate Bench of this Tribunal has decided an identical issue in favour of the applicant therein and that the facts and circumstances are identical to those of the present OA, in Vikash vs. Union of India & Ors. decided on 27.09.2022. In the said decision, this Tribunal, after elaborate discussion on the issue, has held as under:-
“7.In the instant case, we have found that the applicant had cleared the written examination and the PET. He was also called for document verification and thereafter no intimation was given to the applicant regarding his medical examination. He made a representation and after a few months, i.e. on 15.12.2015, he was called for medical examination, which was held between 4th to 7th January, 2016. The applicant cleared the medical examination and was declared fit in B-2 and below categories vide medical fit memo dated 13.01.2016. In the notification dated 30.12.2013, the vacancies were clearly indicated with medical categories. It is observed from the record that vacancies of Khalasi Helper, Safaiwala, Cook Mate, Hospital Attendant etc. are in C-1 and C-2 categories, for which the applicant was eligible. It has been accepted by the respondents that they had referred the applicant‟s case along with other cases, where there was prima facie mismatch in handwriting and signatures, for examination by the Expert. The report received from the Expert was in favour of the applicant and it was decided to get him medically examined from Railway Authorities. This being a case, it is evident that there was nothing against the applicant which could make him unfit for appointment. The respondents should have kept all those seats vacant in view of having sent documents pertaining to certain candidates for verification. This is purely an internal exercise by the respondents and only on having received the clearance from the Expert, the applicant was sent for medical examination. Having cleared the medical examination in certain medical categories, he should have been selected for those posts. The order of rejection is, therefore, perverse in law, patently illegal and arbitrary.
8.We are of the considered view that the applicant was successful at all levels of examination and should have been selected for the posts for which he is medically eligible, i.e. B-2 and below categories.
9.In view of the above mentioned, the O.A. is allowed and the impugned rejection order is quashed and set aside. The respondents are directed to appoint the applicant against any of those posts for which he is medically eligible, within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs.”
Learned counsel for the applicant relied upon another decision of this Tribunal in Jai Bhagwan vs. Ministry of Railway & Ors. [OA No.601/2017 decided on 01.01.2023]. The said OA, being similar to that of Vikash (supra), was allowed by this Tribunal with the following directions:-
“5.In view of the above and for parity of reasons recoded in the case of Vikash (supra), the present OA is allowed and the impugned rejection order is quashed and set aside. The respondents are hereby directed to appoint the applicant against any of the posts for which he is medically eligible, within a period of three months from the date of receipt of a certified copy of this order.”
Learned counsel for the applicant argued that the case of the applicant is squarely covered by the aforesaid decisions of this Tribunal in Vikash (supra) which was followed in Jai Bhagwan (supra). He, therefore, prays that for parity of reasons in both the relied upon decisions of this Tribunal, the present OA may also be allowed in the same terms as in the aforesaid decisions.
Having perused the aforesaid decisions of this Tribunal, we are of the considered view that the instant OA is covered by the decisions of this Tribunal in Vikash’s case (supra) and Jai Bhagwan (supra) as the facts and circumstances are the same and had been duly considered by the Tribunal while deciding those OAs. Hence, this OA also needs to be allowed in the same terms.
In view of the above and for parity of reasons recorded in the case of Vikash (supra) and followed in Jai Bhagwan (supra), the instant OA is allowed and the impugned rejection order is quashed and set aside. The respondents are hereby directed to appoint the applicant against any of the posts for which he has been found medically fit, within a period of three months from the date of receipt of a certified copy of this order.
No order as to costs.