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Judgment
Per Hon’ble Mr. Pankaj Kumar, Member-Administrative
In this case relating to appointment through selection, the applicant has sought following reliefs:
“(a)To issue an order, direction and command to the respondents to issue formal order of appointment on the post of Junior Engineer/Workshop against 25% (IQ) Intermediate Apprentice Quota pursuant to letter/order dated 08.12.2022 as issued by the respondent no. 4 forthwith and accord all consequential benefits.
(a-i) To quash and set aside the order dated 17.02.2024, contained in Annexure no. 7, in so far as respondent no. 22 is concerned, whose name finds place at serial number 10 passed by the respondents, by means of which the incumbents including respondent no. 22 has been promoted on the post of Junior Engineer.
(b)To issue an order, direction and command to the respondents not to execute/implement the guidelines as stipulated in the letter/circular dated 14.12.2021 in the instant selection as the same has been issued during pendency of notification dated 07.08.2021.
(c)To issue an order, direction and command to the respondents particularly respondent no. 2 to consider and decide the representation of the applicant dated 03.11.2022 followed by another representation dated 19.12.2022, contained in Annexure nos. 4 & 5 respectively, addressed to respondent no. 2 in accordance with law by passing a reasoned and speaking order within a time frame to be fixed by this Hon'ble Tribunal.
(d)Issue such other order/direction which may be deemed just and proper in the circumstances of the case.
(e)Allow the Original Application with cost against the respondents in view of the facts and circumstances, legal provisions and Grounds raised in the Application.”
The facts of the case are that the respondents issued a notification dated 07.08.2021 for selection to the posts of Junior Engineer (JE)/Workshop against 25% Intermediate Apprentice Quota. 20 posts of JE were notified out of which 15 were for UR, 3 for SC and 2 for ST candidates. The applicant, who was working as Technician Grade-I under the respondents, applied for the post and appeared in the written test and was empanelled as UR-15 vide order dated 08.12.2022. In the meantime, the respondents issued a Circular dated 14.12.2021 prescribing 30 marks for Record of Service (RoS) in different selections: 15 marks based on Annual Performance Appraisal Reports (APARs)/Working Reports of last 3 years, 10 marks based on awards/punishments and 5 marks based on academic/technical qualification. The applicant, with some others, represented on 03.11.2022 followed by another representation dated 19.12.2022 against application of the guidelines issued vide Circular dated 14.12.2021 to the selection process which had been notified on 07.08.2021, i.e., prior to issue of the Circular dated 14.12.2021. Having failed to elicit a positive response, the applicant preferred this OA.
During the pendency of this OA, the respondents issued an order dated 01.02.2023 notifying the select list of 20 employees empanelled for the post of JE, excluding the applicant, and another order dated 02.02.2023 sending the 20 employees selected to the post of JE (excluding the applicant) for 52 week training. The applicant challenged the orders dated 01.02.2023 and 02.02.2023 vide M.P. No. 215 of 2023 whereupon this Tribunal, vide interim order dated 25.04.2023, held the impugned orders dated 01.02.2023 and 02.02.2023 as non est and as having abated from the date of their issuance for being in violation of section 19(4) of the Administrative Tribunals Act, 1985.
The interim order dated 25.04.2023 of this Tribunal was challenged before Hon‟ble High Court in Writ A No. 4101 of 2023 UOI thru GM MCF vs CAT Lko & Anr and it came to be set aside vide judgment and order dated 15.04.2024 in the following terms:
“Section 19(4) of the Act 1985 cannot be understood and applied to mean that if any such Original Application is submitted no appointment or selection can be made during its pendency or that if it is to be made then the name of the Original Applicant should be included therein. The said provision would have an application, for example, in cases where a punishment order has been challenged, but, in the interregnum some appeal has remained pending; in such a scenario the appellate authority will not proceed to decide the appeal once the Original Application has been admitted. This is just to give one example of application of Section 19(4) of the Act 1985. It has no application in the facts of this case.
Without saying much, having gone through the interim order passed by the learned Tribunal which runs into 26 pages, especially considering the operative portion where the orders impugned before it have been held to ne non-est in the eyes of law and also that they stand abated from the date of issuance itself which is incongruous as such an observation/direction cannot be made while passing an interim order more so as it is incongruous with the other directions issued in para 21 itself and as we are of the opinion that the Tribunal has misconstrued and incorrectly applied the provisions of Section 19(4) of the Act 1985 in the facts of the case, we set aside the order dated 25.04.2023 passed by the Tribunal in OA No. 332/00618/2022. The Tribunal is requested to dispose of the Original Application itself along with all pending applications at the earliest, say, within six months.”
(emphasis supplied)
This Tribunal has taken note of the directions of Hon‟ble High Court quoted above for adjudication of the dispute.
On completion of training of the selected candidates, they were given promotion and placement by the respondents vide order dated 17.02.2024 which has also been challenged by the applicant vide subsequent amendment application.
The applicant‟s contention is that the guidelines issued vide Circular dated 14.12.2021 were not in existence at the time of issuance of the notification dated 07.08.2021 and, therefore, the Circular dated 14.12.2021 cannot be applied retrospectively to the selection process which has been initiated on 07.08.2021 as per settled proposition of law. In support, the applicant cites the judgment and order dated 27.11.2019 rendered by Bangalore Bench of this Tribunal in OA No. 1843 of 2018 B P Thulasiraman vs UOI & Ors.
Per contra, the official respondents no. 1 to 4 contend that the Selection Board is competent to decide the marks for record of service (RoS) in terms of paragraph 219 of the Indian Railway Establishment Manual (IREM) as it relates to policy matter. They state that after the marks obtained in written examination as well as record of service were uploaded on website, twelve candidates represented and upon careful consideration of these representations, the select list dated 08.12.2022 was cancelled and revised select list dated 01.02.2023 was issued in terms of paragraph 13(i) & (ii) of the Master Circular No. 31. They state that the representation submitted by the applicant with others has been decided and communicated to them on 31.01.2023. Vide supplementary affidavit dated 27.09.2024, it is stated that selected candidates completed the training of 52 weeks and 19 candidates have been promoted vide order dated 17.02.2024, including Raju Rajpoot (one seat was reserved for SC candidate), and have joined their posting place provisionally subject to ongoing litigations.
The private respondents no. 5 to 21 state that in the result declared on 08.12.2022, the applicant‟s name figures at S. No. 15 whereas the private respondents‟ names figure at S. No. 1 to 9, 11 to 14, 16 to 18 and 20. They contend that in the result declared previously on 08.12.2022 as well as the result declared on 01.02.2023 and 02.02.2023, there is no change with regard to them and the grievance of the applicant should be restricted to Raju Rajpoot (respondent no. 22) only who has affected the applicant.
The private respondents 22 (Raju Rajpoot) and 23 state that the result notified on 08.12.2022 was erroneous and illegal against which they represented and that they were included at S. No. 10 and 18 in the fresh list dated 01.02.2023 and 02.02.2023 in accordance with the Railway Board‟s letter No. E(NG)I-98/PMI/17 dated 20.10.1999 and para 13(i) & (ii) of Railway Board Master Circular No. 31 and that the Railway Board has legal right to issue guidelines from time to time, including the guidelines dated 14.12.2021.
In the supplementary affidavits dated 15.01.2025 and 18.12.2025 filed by the applicant, affidavit dated 17.02.2025 filed by private respondents no. 22 & 23, affidavit dated 03.03.2025 filed by private respondents no. 5 to 21, the points mentioned in paragraphs 3 and 4 above have been elaborated upon respectively. In the affidavit dated 21.07.2025 filed by official respondents no. 1 to 4, it is mentioned that OA No. 61 of 2023 (Harikesh vs UOI & Ors) in regard to the selection in question was dismissed on 10.09.2024 following which private respondent no. 23 (Lalit Kumar) was promoted to the post reserved for SC candidate vide order dated 19.09.2024.
We have heard the parties. The controversy that falls for our consideration is whether the respondents could have implemented their guidelines dated 14.12.2021 after commencement of the selection process with the issue of notification on 17.08.2021 and whether they could have cancelled the select list of empanelled candidates dated 08.12.2022 in favour of a revised select list vide impugned orders dated 01.02.2023 and 02.02.2023 based on the guidelines dated 14.12.2021.
7.0 Relevant proposition of Law
Before we begin our examination of the facts and circumstances of the instant OA, it would be apposite to recall the following propositions of law enunciated by Hon‟ble Supreme Court in Tej Prakash Pathak & Ors vs Rajasthan High Court & Ors 2024 INSC 847:
“42.We, therefore, answer the reference in the following terms:
(1)Recruitment process commences from the issuance of the advertisement calling for applications and ends with filling up of vacancies;
(2)Eligibility criteria for being placed in the Select List, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness;
(3)The decision in K. Manjusree (supra) lays down good law and is not in conflict with the decision in Subash Chander Marwaha (supra). Subash Chander Marwaha (supra) deals with the right to be appointed from the Select List whereas K. Manjusree (supra) deals with the right to be placed in the Select List. The two cases therefore deal with altogether different issues;
(4)Recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, non-discriminatory/ nonarbitrary and has a rational nexus to the object sought to be achieved;
(5)Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. However, where the Rules are non-existent, or silent, administrative instructions may fill in the gaps;
(6)Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list.”
(emphasis supplied)
Having taken note of the above propositions of law in the matter of recruitment or selection process, we now examine the case at hand.
8.0 Procedure for Selection
To begin with, we take note of the following provision in the notification dated 07.08.2021 titled „General Selection to the post of JE/Workshop, in Pay Matrix, Level-6 (GP 4200/-) against 25% (IQ) Intermediate Apprentice Quota in Mechanical Department‟:
“Mode of Selection and Qualifying Marks
7.Above selection will comprise of written examination followed by scrutiny of service records and APARs of the candidates who will qualify in the written test. The employees must secure 60% of marks in professional ability as well as in the aggregate. In the case of SC/ST employees must secure 50% marks in Professional ability as well as in the aggregate. The panel will be formed strictly in order of merit. (Authority: Para 8 of Master Circular 31)”
(emphasis supplied)
From the above, it is evident that clause 7 of the notification dated 07.08.2021 lays down that once the candidates have qualified in the written test, their service records and APARs will be scrutinized. It is noted that the weightage assigned to such scrutiny of service, including the APARs, and the methodology for such scrutiny has not been elaborated upon in clause 7 of the said notification. However, in the clause 7 of the notification, the source of authority mentioned is the paragraph 8 of the Master Circular No. 31.
Perusal of the Master Circular No. 31 titled „Promotion to Non-Gazetted (Group „C‟) staff to “Selection” posts – Master Circular‟ brings out the following provisions contained in paragraph 8 thereof which are of relevance in the present controversy:
“8. Allotment of marks.
Selection should be made primarily on the basis of overall merit, but for the guidance of Selection Board the factors to be taken into account and their relative weight are laid down below:-E(NG)I-69/PM 1-126 dated 18/9/69
Factors/Headings Maximum Marks Qualifying Marks (i) Professional ability 50 30 (ii) Record of service 30 - (iii) Seniority 20 - Total 100 60 (emphasis supplied)
(i)The item “record of service” should also take into consideration the performance of the employee in essential Training Schools/Institutes apart from examining CRs and other relevant service records.”
It is noted that the paragraph 8 of the Master Circular No. 31 prescribes that the record of service shall have a weightage of 30 marks in the overall merit. It is further noted that the record of service has three components: (i) performance in essential Training Schools/Institutes; (ii) CRs (or APARs); and, (iii) other relevant service records. However, it is observed that paragraph 8 does not specify the relative weights to be assigned among the three components of record of service and the methodology of assigning such relative weights.
This brings us to the guidelines dated 14.12.2021 titled „Guidelines on awarding marks by Selection Boards in the selections comprising Record of Service‟ issued by the Modern Coach Factory, Rae Bareli which allocate weights for each component as follows:-
“The following procedural guidelines are issued for guidance of the Selection Committee to assess the thirty (30) marks wherever prescribed by Railway Board for Record of Service (RoS), in different selections:
(A) (B) (C) 15 Marks on the basis of grading of APARs/ Working Reports of last 03 years. 10 Marks on the basis of entries of Awards/ Punishments in Service Register. 05 Marks on the basis of entries in Service Register of academic/ technical qualifications. (ROS-1) (ROS-2) (ROS-3) (emphasis supplied)
It is noted that the guidelines dated 14.12.2021 also lay down the criteria for awarding marks for ROS-1, ROS-2 and ROS-3.
9.0 Applicability of Guidelines dated 14.12.2021
Now, in terms of the propositions of law laid down by Hon‟ble Supreme Court in Tej Prakash Pathak (supra), the recruitment commences with the issue of advertisement and ends with filling up of the vacancies and the criteria for selection cannot be changed midway through the recruitment process. However, subject to the extant rules, the recruiting body can devise the appropriate procedure for bringing the recruitment process to its logical conclusion in a transparent and non-discriminatory manner and with a rational nexus to the object sought to be achieved. Further, where the extant rules are silent, administrative instructions can fill the gap.
In the case at hand, we have noted that the clause 7 of the notification dated 07.08.2021 prescribed scrutiny of service records and APARs of the candidates qualifying in the written examination with reference to paragraph 8 of the Master Circular No. 31. We have also noted that the paragraph 8 of the Master Circular No. 31 assigns weightage of 30 marks to the record of service comprising: (i) performance in essential Training Schools/Institutes; (ii) CRs (or APARs); and, (iii) other relevant service records. We have further noted that the guidelines dated 14.12.2021 sub-allocate the 30 marks for record of service to its various components and also delineate the methodology for determining the marks to be awarded to each such component of the record of service.
It cannot be said that the guidelines dated 14.12.2021 deviate from the conditions articulated in clause 7 of the notification dated 07.08.2021 read with the stipulations in paragraph 8 of the Master Circular No. 31 or that they introduce an extraneous or irrelevant consideration for the simple reason that the said guidelines merely divide the marks (30) earmarked for record of service amongst the three identified components along with the procedure for awarding them. It is observed that the guidelines dated 14.12.2021 explicate the sub-allocation of marks within various components of record of service, an aspect on which the Master Circular No. 31 is silent. It is further observed that by making the sub-allocation of marks for record of service and providing the methodology of evaluation for assigning marks to the candidates, these guidelines have the effect of reducing the scope of discretion and of enhancing objectivity. It is evident that the guidelines dated 14.12.2021 have a rational nexus to the object of selection of suitable candidates for the reason that they are relatable to the parameters of record of service set out in clause 7 of the notification dated 17.08.2021 read with the paragraph 8 of the Master Circular No. 31.
The question which remains to be answered is whether the selection process initiated vide notification dated 17.08.2021 could have relied upon the guidelines issued subsequently on 14.12.2021. To answer this question, it would be advantageous to refer to the following observations in Tej Prakash Pathak (supra):
“30.What is clear from above is that the object of any process of selection for entry into a public service is to ensure that a person most suitable for the post is selected. What is suitable for one post may not be for the other. Thus, a degree of discretion is necessary to be left to the employer to devise its method/ procedure to select a candidate most suitable for the post albeit subject to the overarching principles enshrined in Articles 14 and 16 of the Constitution as also the Rules/Statute governing service and reservation. Thus, in our view, the appointing authority/ recruiting authority/ competent authority, in absence of Rules to the contrary, can devise a procedure for selection of a candidate suitable to the post and while doing so it may also set benchmarks for different stages of the recruitment process including written examination and interview. However, if any such benchmark is set, the same should be stipulated before the commencement of the recruitment process. But if the extant Rules or the advertisement inviting applications empower the competent authority to set benchmarks at different stages of the recruitment process, then such benchmarks may be set any time before that stage is reached so that neither the candidate nor the evaluator/ examiner/ interviewer is taken by surprise. The decision in K. Manjusree (supra) does not proscribe setting of benchmarks for various stages of the recruitment process but mandates that it should not be set after the stage is over, in other words after the game has already been played. This view is in consonance with the rule against arbitrariness enshrined in Article 14 of the Constitution and meets the legitimate expectation of the candidates as also the requirement of transparency in recruitment to public services and thereby obviates malpractices in preparation of select list.” (emphasis supplied)
It follows from the above quoted observations that the employer can devise the method/procedure for selection of a candidate suitable for the post provided that such method/procedure is not inconsistent with the extant rules. Further, it is open for the employer to set benchmarks for different stages of the recruitment/selection process provided that such benchmark is set before the concerned stage is reached.
In the instant case, the selection process commenced with the issuance of notification dated 07.08.2021. Clause 7 of the notification stipulated that selection will comprise written examination followed by scrutiny of service records and APARs of the candidates who will qualify in the written test. It can, therefore, be inferred that there were two stages of selection. The first stage was the written examination. The second stage was the scrutiny of service records and APARs. Clause 7 of the notification also made reference to paragraph 8 of the Master Circular No. 31. Paragraph 8 of the Master Circular No. 31 assigns weightage (of 30 marks) for record of service considering the performance of the employee in essential Training Schools/Institutes apart from examining CRs and other relevant service records. It is through the guidelines dated 14.12.2021 that the procedure for award of marks for record of service, i.e., the second stage of selection was set out in detail. The respondents, vide their supplementary affidavit dated 21.08.2026, have placed on record that the written examination in pursuance of notification dated 07.08.2021 was conducted on 25.09.2022 and the result was issued on 02.11.2022. They have further stated that the scrutiny of documents took place on 08.12.2022 and the empanelment was issued on the same date as per DPC dated 08.12.2022. Twelve candidates represented against the empanelment on account of higher educational qualification and procedure for awarding marks on records of service; therefore, the second DPC was held on 01.02.2023 and empanelment list was revised which led to exclusion of the applicant from the list of empanelled candidates. It is noteworthy that the revised list of empanelment was declared on 01.02.2023, i.e., more than one year after the issuance of the guidelines dated 14.12.2021. Given these facts, it cannot be said that the guidelines dated 14.12.2021 were issued after the second stage of selection had been completed. It is noted that the procedure for a particular stage of selection can be devised even after the selection process has commenced but before that particular stage is reached in terms of Tej Prakash Pathak (supra). The net result is that the applicability of guidelines dated 14.12.2021 to the selection process in question is sustainable in law, in our opinion.
Another objection that the applicant has raised is that the selection panel dated 08.12.2022 in which he was included could not have been cancelled by the respondents vide their impugned order dated 01.02.2023 without giving notice to him as per extant instructions. Indeed, the requirement of issuing notice is mandated in paragraph 13(v) of the Master Circular No. 31 quoted below:
“13 (v) Whenever selection proceedings are required to be cancelled after declaration of the result due to procedural irregularities/malpractices, due notice should be given to the candidates declared selected. (Rly. Board‟s letter No. E(NG)I/2019/PM4/13 dated 11.11.2019)” (emphasis supplied)
The above stipulation is entirely in conformity with the principles of natural justice. However, we note that in the OA the applicant has stated that having come to know that the respondents were trying to implement the guidelines dated 14.12.2021, he preferred representation along with others on 03.11.2022 before the respondent no. 2 and followed it up with another representation on 19.12.2022. What is of substance here is that the applicant preferred the second representation after the declaration of the first select list on 08.12.2022 and that the respondents decided the representation and communicated their decision on 31.01.2023. Keeping in view these facts, we are unable to hold that any prejudice has been caused to the applicant in the matter.
In conclusion, we find that the implementation of guidelines dated 14.12.2021 by the respondents after commencement of the selection process with the issue of notification on 17.08.2021, the cancellation of the select list of empanelled candidates dated 08.12.2022 and its supersession by a revised select list vide impugned orders dated 01.02.2023 based on the guidelines dated 14.12.2021 and the consequential order dated 17.02.2024 do not suffer from any legal infirmity.
In view of the foregoing, the applicant is not entitled to any relief and this OA stands dismissed, accordingly.
Associated MAs also stand disposed of.
Parties shall bear their own costs.