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Judgment
ORDER
By Mr. V. Ajay Kumar, Member (J)
The applicant, an ESM-I (Signal) in the respondent – Northern Railway, filed the O.A. seeking quashing of the Annexure A/1 dated 02.02.2018, whereunder the request of the applicant for conducting a supplementary examination for the post of Staff Welfare Inspector in Grade Pay of Rs.9300-34800 + 4200 GP against 35% LDCE quota was denied, by stating that there is no provision for conducting supplementary examination against LDCE quota.
Brief facts of the case, as narrated in the O.A., are that the applicant being ESM-I (Signal) is eligible to participate in the Limited Departmental Competitive Examination for selection to the post of Staff Welfare Inspector against 35% quota through LDCE. The respondents vide Annexure A/3 dated 29.12.2017 published a list of 43 candidates found eligible for appearing in the written test for the said selection scheduled to be held on 20.01.2018. Though the applicant applied for participating in the LDCE and though he fulfilled all the requisite qualification, but the respondents have not included his name in the said Annexure A/3 dated 29.12.2017. However, the respondents vide Annexure A/4 dated 11.01.2018 issued a Corrigendum stating that on examination of the relevant record as well as approval of the competent authority, the name of the applicant along with other persons was included in the eligibility list to participate in the LDCE to be held on 20.01.2018, but the said Corrigendum dated 11.01.2018 was received by the SSE/Sig. Rohtak, under which the applicant was working, only on 24.01.2018 and was communicated to the applicant on the same day, whereas the written examination for the LDCE was already conducted on 20.01.2018 itself. When the applicant made representations informing about the communication of the Annexure A/4 Corrigendum dated 11.01.2018 only on 24.01.2018, i.e. after the examination was conducted on 20.01.2018, and requested for conducting of a supplementary examination, the respondents rejected the said request by issuing the impugned Annexure A/1 dated 02.02.2018.
The respondents vide their counter have not disputed the fact of non-inclusion of the name of the applicant in Annexure A/3 dated 29.12.2017 and including the name of the applicant only by way of Annexure A/4 Corrigendum dated 11.01.2018. They simply stated that the applicant did not appear in the examination held on 20.01.2018. It is their case that there is no provision for conducting a supplementary written test against LDCE quota. It is their further contention that Corrigendum dated 11.01.2018 was intimated to the applicant through proper channel on 11.01.2018.
On 12.02.2018, while issuing notice in the O.A., this Tribunal directed the respondents that one post of Staff Welfare Inspector be kept vacant.
Heard Shri Yogesh Sharma, the learned counsel for the applicant and Shri S.M. Arif, the learned counsel appearing for the respondents, and perused the pleadings on record.
In view of the rival submissions with regard to the date of service of Annexure A/4 Corrigendum dated 11.01.2018, the respondents were directed to produce the record pertaining to proof of service of Annexure A/4 dated 11.01.2018 on the applicant within one week, while reserving orders on 31.07.2018, but the respondents have not chosen to submit any such proof.
In Gauri Shanker vs. State of Rajasthan, (2015) 12 SCC 754, the Hon’ble Apex Court while referring Gopal Krishnaji Ketkar vs. Mohd. Haji Latif and Ors., AIR 1968 SC 1413, held that “Even if the burden of proof does not lie on a party, the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue.” In view of the failure of the respondents to produce the proof of service of Annexure A/4, Corrigendum dated 11.01.2018, inspite of a specific direction from this Tribunal, and in view of the above referred law, it can be safely inferred that the said Corrigendum was served on the applicant subsequent to the date of holding of the examination, i.e. after 20.01.2018.
The learned counsel for the applicant submits that para 223 of IREM Vol.-1 provides for Supplementary Selection/Suitability Test and as per the said paragraph, a supplementary selection may be held where summons for interview being received too late by the candidate making it difficult for him to reach the place of interview or where the administration failed to relieve the candidate in time for interview. Since the notice for attending the examination was received by the applicant subsequent to the conducting of the examination, as per the said paragraph, the respondents are liable to conduct a supplementary examination for the applicant.
On the other hand, the learned counsel for the respondents submits that the said paragraph is applicable only in respect of interview but not to the written examination.
Para 223 of IREM Vol.-1 reads as under:
“223. Supplementary Selection/Suitability Test
I. (i) A supplementary selection may be held in the following types of cases:-
(a)summons for interview being received too late by the candidates making it difficult for him to reach the place of interview;
(b)Administration's failure to relieve him in time for interview;
(c)Sickness of the candidate or other reason over which the employee has no control. Unavoidable absence will not however, include absence to attend a wedding or similar function or absence over which he has controlled. Sickness should be covered by a specific service from the Railway Medical Officer.
(ii)The supplementary meeting of the Selection Board should as far as possible be attended by the same Officers who were present at the first Selection Board and held within one month of the first selection or the return to duty of the employee concerned provided that the employee returned to duty not later than three months after the holding of the first selection. In case the return of the employee is delayed beyond three months, the result of the selection need not be deferred, the name of the employee being incorporated as if he had appeared at the selection when first held. The employee will not be eligible to be considered if he returns to duty more than six months after the date of the first selection.
(iii)Not more than one supplementary selection should normally be held to cater to the needs of absentee due to sickness, non-intimation/late intimation of dates of tests etc. The second supplementary selection should be held rarely and with the personal approval of Chief Personnel Officer based on merits of each case.
E(NG) I-80/PM 1/188 dt. 31-12-80
II. For non-selection post, if an employee is unable to appear in a suitability test within a period of six months due to reasons beyond his control, such as prolonged illness, he should be subjected to supplementary suitability test within a reasonable period after return to duty and being found suitable for promotion, he should be assigned proforma seniority position vis-a-vis his juniors promoted earlier.
E(NG) I-73/PM 1-214 dt. 8-11-73”
A perusal of the above paragraph No.223-II indicates that even in respect of a Suitability Test, if any candidate was not able to appear due to the reasons beyond his control, he should be subjected to the Supplementary Suitability Test within a reasonable period and being found suitable for promotion, he should be assigned proforma seniority position vis-a-vis his juniors promoted earlier.
A conspectus reading of para 223-I and 223-II indicates that the respondents are required to conduct a supplementary examination as the reason for his non-appearance in the examination conducted on 20.01.2018 was beyond his control and that the respondents themselves were responsible for the same by not serving the Annexure A/4 Corrigendum on the applicant within time.
In the circumstances, the impugned order is quashed and the respondents are directed to conduct a supplementary examination for the applicant within 3 months from the date of receipt of a certified copy of this order and if found qualified, to grant all consequential benefits as per rules.
Accordingly, the O.A. is allowed. No order as to costs.