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Judgment
Sujoy Paul, J
The interesting conundrum in these petitions filed under Article 227 of the Constitution of India is whether the department was justified in holding second written examination and viva voce at the end of completion of training of respondent/employees for the post of Chargeman B/Junior Engineer Grade II.
The ancillary question is whether on the strength of second examination and viva voce held pursuant to circular dated 7.6.1985, they could have been declared unsuccessful by depriving them from the fruits of selection on the post of Chargeman B/Junior Engineer Grade II. The employer is partially aggrieved by the order of the tribunal whereby the tribunal although upheld the action of the employer in directing the employees to participate in the second examination and viva voce after the training but commanded the employer to grant more opportunities to the employees to pass the said exam.
Indisputably, the petitioners/employees while holding the post of Technicians Grade I/II which is known as 'Skilled Artisan' submitted their candidature for participation on the promotional post of Chargeman B/Junior Engineer Grade II. The petitioners are entitled to be considered against 25% quota as per paragraph 140 of Indian Railways Establishment Manual Volume 1 (IREM). The employees participated in the selection process, passed the initial written examination followed by viva voce. Accordingly, they were required to undergo training of one and half/two years before getting the working post of Junior Engineer Grade II. The employees after successfully completing the training, participated in the written examination, followed by viva voce as per repeated letters given to them by the department. However, they could not pass the written examination/viva voce as per circular dated 7.6.1985. Accordingly, they were not declared passed and the select list, pursuant to which they were selected, was cancelled.
The employees feeling aggrieved by the said action, filed batch of petitions before the tribunal which were registered as O.A. No. 788/2001, 315/2002 and 814/2001 decided by common impugned order dated 9.10.2003.
Shri S.K. Agrawal, learned counsel for the employees urged that after passing the first written examination and viva voce, the employees were sent for training. During entire training period and even at the time of appearing in the second written examination and viva voce held at the end of the training, they were never informed that they are required to achieve certain marks and fulfill the criteria laid down in the circular dated 7.6.1985.
Shri Agrawal, learned counsel for the employees has taken pains to take this Court to various departmental letters communicated to the employees during the training to bolster his contention that is none of these letters the circular dated 7.6.1985 is relied upon. In absence thereof, the said circular could not have been pressed into service.
Reliance is also placed to Clause 213 of IREM to contend that circular dated 7.6.1985 was issued by Chief Personnel Officer (CPO) of the Central Railway. The said authority is not competent to issue said circular. It is urged that since entire exercise of conducting second written examination followed by viva voce is founded upon the circular dated 7.6.1985 and said circular is issued by an incompetent authority, the employees cannot be visited with evil consequence of this circular. The circular is void ab initio. In support of this contention, Shri Agrawal, learned counsel for the employees placed reliance on a previous order of tribunal passed in O.A. No. 559/1997 dated 11.8.2003 Annexure P-6. By taking note of paragraph 12 of this order, Shri Agrawal argued that it was already decided by the tribunal that Chief Personnel Officer is not a competent authority to issue a circular. Thus, there was no occasion for the tribunal to take a different view in the instant petition.
The next contention of learned counsel for the employees is that since at no point of time, during training or otherwise, the employees were informed that they are required to fulfill the requirement of circular dated 7.6.1985, they had no occasion to prepare themselves as per requirement of said circular. It is urged that circular dated
6.1985 was never given vide circulation as mandated in IREM. In absence thereto, the circular cannot be pressed into service. In nutshell, Shri Agrawal, learned counsel raised following points/contentions:-
(1) The circular dated 7.6.1985 issued by CPO stood superseded by circular of Railway Board dated 26.11.1986.
(2) The circular dated 7.6.1985 was not issued by competent authority and is not in consonance with paragraph 213 of IREM.
(3) The circular dated 7.6.1985 was not given vide publicity and was not circulated amongst the employees and therefore, it cannot be pressed into service against the employees.
(4) The employees were never given intimation during training that they have to acquire the marks as per Circular dated 07.06.1985.
Reliance is placed on Departmental Communication dated 02.06.1999 Annexure A-
22 wherein the department used the word (desirable)- while directing the employees to pass the post training exam. Thus the impugned action of respondents is not transparent. In order to elaborate the aforesaid contention (point Nos. 2, 3 & 4) Shri Agrawal placed reliance on the order sheet of this matter dated 06.11.2008 and the affidavit filed by Railway Administration Department. It is submitted that the affidavit does not support the case of Railway Administration and the circular dated 07.06.1985 was never given vide publicity. In support of aforesaid contention Shri Sanjay K. Agrawal placed reliance on the judgments rendered in the case of Rajendra Agricultural University Vs. Ashok Kumar Prasad and others MANU/SC/1847/2009 : (2010) 1 SCC 730, Vikas Singh & ors Vs. Airport Authority of India MANU/DE/2996/2013, Parvaiz Ahmad Parry Vs. State of Jammu & Kashmir and others MANU/SC/1290/2015 : (2015) 17 SCC 709 and Hemani Malhotra Vs. High Court o Deli MANU/SC/1844/2008 : (2008) 7 SCC 11.
Per contra, Shri Ruprah, learned counsel for the Railway Administration, supported the impugned order of Tribunal to the extent the contention of employees that second test and viva voce after completion of training is impermissible is turned down. He assailed the order of the Tribunal to the extent more opportunities were directed to be given to the employees to pass the requisite exam after the training. The stand of Railway Administration is that CPO is Head of the Department and this aspect was clarified in the affidavit dated 02.02.2009 filed in obedience of this Court's order dated 06.11.2008. As per clause 213 of IREM, the General Manager, Divisional Railway Manager and HOD are competent to issue the circular. The question of competence of the authority/CPO was not part of the pleadings in the O.A. The amendment application although was filed before the Tribunal, was never allowed. There is no pleading that circular dated 07.06.1985 was not given vide circulation among the employees.
Shri Ruprah further urged that the pleadings of para 4.23 and para 4.27 of O.A. shows that the employees were fully aware about the procedure adopted by Railway Administration. They participated in the proceedings with clear understanding. They did not raise any objection at any point of time before getting failed in the second examination. Thus, after having participated in the selection without any objection, they cannot now be permitted to turn around and challenge the impugned action. Reliance is placed on Chandra Prakash Tiwari Vs. Shakuntala Shukla MANU/SC/0447/2002 : (2002) 6 SCC 127, Vijay Syal Vs. State of Punjab MANU/SC/0413/2003 : (2003) 9 SCC 401, K.H. Siraj Vs. High Court of Keral (MANU/SC/8184/2006 : 2006 6 SCC 395), Marripati Nagraja Vs. Govt. of A.P MANU/SC/8040/2007 : (2007) 11 SCC 522, Jaya Kumar Vs. A. Gopu MANU/SC/4120/2008 : (2008) 9 SCC 403 and K.A. Nagamani Vs. Indian Airline MANU/SC/0470/2009 : (2009) 5 SCC 515.
Next contention of Shri Ruprah is that there is no statutory or other enabling provision pursuant to which Railway Administration could have been directed to conduct more exams to accommodate the employees. Learned counsel submits that this selection has taken place in the year 1999-2000. Now after so many years, even otherwise, it is not practical to give the fruits of a selection which had taken place pursuant to selection notification dated 11/23.1.1995.
No other point is pressed by the learned counsel for the parties.
We have heard learned counsel for the parties at length and perused the record.
The first point raised by the employees is that circular dated 07.06.1985 issued by CPO, stood superseded by circular of Railway Board dated 26.11.1986. It is profitable to take into account the circular dated 07.06.1985 of CPO. Part-II of this circular deals with "training". A microscopic reading of Part-II makes it clear that it prescribes a written examination and interview after completion of the training. In furtherance thereof, the qualifying marks for written test and interview were prescribed as 60% for all the employees including reserved category candidates. Thus, it is crystal clear that Part-II of this circular is confined to a written examination/viva voce of the selected candidates after the training whereas the circular dated 26.11.1986 issued by Railway Board deals with selection procedure of Apprentice Mechanics. A careful reading of this circular shows that it deals with initial empanelment of candidates on the basis of written test and viva voce. This circular nowhere deals with the selection after the training. Thus there is no conflict between the circular dated 27.06.1985 issued by the CPO and circular dated 26.11.1986 issued by Railway Board. Putting it differently, the subject and object of both the circulars are different. CPO's circular prescribes a written examination/interview after the training whereas Railway Board Circular prescribes the initial selection method for empanelment for training/selection. Thus, we are unable to persuade ourselves with the argument of Shri Agrawal that circular dated 07.05.1985 stood superseded on introduction of circular dated 26.11.1986.
The next contention of Shri Agrawal was that as per Clause 213 of IREM, CPO was not competent and only DRM and General Managers were competent. It is apposite to reproduce clause 213 IREM which reads as under:-
"213. Promotion
(a) A Railway servant may be promoted to fill any post whether a selection post or a non-selection post only if he is considered fit to perform the duties attached to the post. The General Manager or the Head of Department or Divisional Railway Manager may prescribe the passing of specified departmental or other tests as conditions precedent to a Railway servant being considered fit to hold specified post; such rules should be published for the information of the staff concerned.
(b) Unless specifically provided otherwise, the promotion shall be made without any regard for communal or racial consideration."
Pertinently, the question of competence of CPO was not raised by the employees in their pleadings in the OA before the Tribunal. Although an amendment application was filed before the Tribunal, the same was never pressed and allowed by the Tribunal and therefore, the said pleadings regarding competence of CPO were never became part of pleadings in the OA. Thus, the other side had no occasion to address the Tribunal on this aspect. However, pursuant to an order of this court dated
11.2008, the respondent filed an affidavit dated 02.02.2009 and categorically stated that CPO is the head of the department. A plane reading of para 213 aforesaid, makes it clear that it bestows power to issue circular to following authorities-
General Manager.
Head of the Department.
Divisional Railway Manager.
There is no iota of pleadings on the part of the employees which may persuade us to hold that CPO is not the Head of the Department. The employees have not chosen to file any counter affidavit before this Court to the aforesaid affidavit of employer dated 02.02.2009. Thus, we are unable to hold that CPO is not the competent authority.
We will be failing in our duty if second limb of argument in this regard advanced by Shri Agrawal is not considered. By placing reliance on the order of Tribunal O.A. 559/1997 Annexure P-6, it is argued that Tribunal came to hold that CPO is not the competent authority. We have carefully gone through para 12 of the said order of Tribunal Dated 11.08.2003. The order shows that in the said case there was no quarrel between the parties on a proposition raised by the applicants therein, whereas as noticed in the instant case, no pleadings were raised before the Tribunal regarding competence of the authority. Para 12 of the order shows that the competence of the CPO as Head of the Department (HOD) was not tested or examined by the Tribunal at all. Thus the said order, by no stretch of imagination, can be an authority on the aspect whether CPO is the H.O.D. and competent to issue circular dated 07.06.1985. Thus this contention also deserves to be rejected.
Third contention of Shri Agrawal is that the circular dated 07.06.1985 was never given wide circulation as mandated in IREM. On a specific query from the Bench, learned counsel for the employees, was unable to show any pleadings from the record wherein this ground was taken before the Tribunal. Whether the circular was actually circulated or not, in our opinion, is a question of fact which should have been raised with accuracy and precision. In absence thereto, the legal grounds cannot be pressed into service that if criteria of selection is not made known to the employees, same cannot be pressed into service. Thus, this argument also pales into insignificance. The judgment of Apex Court in the case of Hemani Malhotra (supra) deals with the situation where rules of game were changed when selection process was on or when it was over. The said judgment has no application in the factual matrix of the present case. In Parvaiz Ahmad Parry (supra), there was ambiguity and vagueness in the recruitment notice prescribing the qualification in the advertisement. In that backdrop, it was held that the candidate is entitled to know about the eligibility conditions with clarity. This judgment is also not applicable in the present case.
In Rajendra Agricultural University (supra), as per section 36 of the relevant Act, the rules were required to be published in the official gazette. In the present case there was no such legal requirement to get the provision published in the official gazette. Interestingly, IREM itself is compilation of executive instructions and does not have any statutory backing. Hence, this judgment is also of no assistance. The judgment of Vikas Singh (supra) cannot be pressed into service for the same reasons other judgments were not relied upon. Resultantly, the judgments cited by Shri Agrawal are also of no assistance.
The next contention of shri Agrawal is infact based on other two contentions dealt with above. The contention 4 is that employees were not given intimation during training that they have to achieve bench mark as per circulation dated 07.6.1985. In our considered opinion, once existence of circular dated 07.06.1985 cannot be doubted, it was not necessary for the employer to mention about it in every letter issued to the employees. Once a governing circular dated 07.06.1985 prescribing the method of examination after selection is in existence, no fault can be found in the action of Railway Administration in conducting written examination and viva voce as per the said circular. Interestingly, this circular dated 07.06.1985 was also not questioned in the relief clause before the Tribunal. The same was sought to be added by way of aforesaid amendment application which was never allowed. This is trite that even a void order remain enforceable unless necessary proceedings are taken to get it quashed. See: Shiv Chander Kapoor Vs. Amar Bose MANU/SC/0498/1989 : (1990) 1 SCC 234, Sultan Sadik Vs. Sanjay Raj Subba and others MANU/SC/0004/2004 : (2004) 2 SCC 377 and Robust Hotels Private Limited and others Vs. Eih limited and others MANU/SC/1559/2016 : (2017) 1 SCC 622.
The contention of Shri Agrawal that petitioners were only "expected" to participate in the examination and viva voce and were not required to pass the same as per circular dated 07.06.1985 has no substance. Since governing circular above prescribes the mode of selection, even if an inferior authority has used any improper word like 'expected' it will not dilute the requirement of circular dated 07.06.1985. In view of the judgment of Supreme Court in Chandra Prakash Tiwari (supra) and other judgments cited by Shri Ruprah, it is clear that the employer has conducted the second written examination and viva voce as per the circular issued by CPO. Since employees appeared in the examination with eyes open, they cannot now submit that conducting second examination/viva voce was impermissible.
We find substance in the argument of Shri Ruprah that the Administration is the best judge to decide as to how it should run its administration. The interference of Court can be made if department acts in an arbitrary and capricious manner or violates any governing provisions or infringes any fundamental right. The Tribunal has not mentioned under which provision of law the employees have right to get more chances to pass the examination after the training. At this distance of time, it will not be in the interest of administration as well as in public interest to uphold the order of Tribunal permitting more chances to the employees to pass the said exam. The impugned order of Tribunal to the extent employees were permitted to participate in exam/viva voce after the training is vulnerable and needs interference.
In view of foregoing analysis, the impugned order of Tribunal passed in aforesaid O.A. is partially set aside. Resultantly, W.P. No. 2242/03 is dismissed and W.P. No. 912/2004 is allowed to the extent indicated above.