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Judgment
Per : Hon’ble Shri J.V. Bhairavia, Member (J)
Considering the grounds stated in the MA No.478/2021 for Joint Application, the same is allowed.
In the present OA, the very same applicants of the OA No. 167/2019 raised the grievance that the impugned notification dated 01.06.2021 (Annexure A/1) issued by the respondents Divisional Office Rajkot Western Railway to hold a selection board for promotion from erstwhile Group –D to Group –C post of TE/ACC category against ranker quota in the Commercial Department of Rajkot Division, has erroneously included the vacancies which were notified vide notification dated 21.12.2017. The respondents has erroneously not expanded the zone of consideration qua the employees, who were not able to appear in the selection process pursuant to the notification dated 21.12.2017 and have now became eligible for the vacancies, which were notified earlier for the post of ACC/T.E.. According to the applicants, in the earlier notification, the employees who had completed two year of service in the grade below were eligible. However, the respondents vide impugned notification changed the eligibility criteria.
Counsel for the applicant, Shri M.S.Trivedi submits that pursuant to the notification dated 01.06.2021, the respondents have published the eligibility list recently wherein the names of the applicants stand included and on 30th January, 2022, the respondents are conducting final selection process. He further submits that since the Hon‟ble High Court is seized of SCA No.17778/2021 wherein the order passed by this Tribunal dated 23.08.2021 in OA No.167/2019 with respect to cancellation of selection panel pursuant to the notification dated 21.12.2017 is sub judice, therefore, the respondents are required to be restrained from conducting any selection process with respect to eligibility list prepared and published by the respondents pursuant to the notification dated 01.06.2021 as far as it includes vacancies remained unfilled of the year 2017 notification. Learned counsel Shri M.S.Trivedi submits that since vide impugned notification dated 01.06.2021, the respondents has expanded the zone of consideration which is prejudicial to the interest of the applicant. Further, it is stated that since the Hon‟ble High Court is seized of the selection in pursuant to the notification dated 21.12.2017, the action on the part of the respondents regarding issuance of notification dated 01.6.2021 is required to be declared as illegal, arbitrary, unconstitutional and non-est in the eyes of the law.
It is noticed that earlier the very applicants aggrieved by the decision dated 12.4.2019 whereby the respondents cancelled the selection process for the Group „C‟ post of TE/ACC of Commercial Department notified vide notification dated 21.12.2017 had approached this Tribunal by way of filing OA No.167/2019. On perusal of the record, the said OA was admitted by this Tribunal on 18.02.2021. Thereafter, the applicants had preferred an MA No. 317/2021 for fixing early date of final hearing and the said MA was allowed vide order dated 05.08.2021. Accordingly, the said OA was taken up for final hearing on 23.08.2021. Considering the materials on record and submission of the counsel for the parties, the OA was allowed and with a direction to the respondents “to take appropriate decision for filling up the vacant post of TE/ACC, Grade Pay of Rs.2000/- Level-3 in Commercial Department of Rajkot Division on the basis of the option sought from the applicants with reference to the letter dated 31.01.2019”.
It appears that the aforesaid order dated 23.08.2021 passed by this Tribunal was assailed by the respondents before the Hon‟ble High Court by way of SCA No.17778/2021 whereupon vide order dated 02.12.2021, the Hon‟ble High Court issued “Rule” and stayed the impugned order passed by this Tribunal dated 23.8.2021.
At this stage, it is apt to mention that while going through the record of OA No.167/2019, we find that at the time of final hearing, neither the applicants nor the respondents brought to the knowledge of this Tribunal about issuance of fresh notification dated 01.06.2021 for selection of their promotion from erstwhile Group –D to Group –C post of TE/ACC category against ranker quota in the Commercial Department of Rajkot Division.
When a query was put to the counsel for the applicant by this Tribunal as to why the existing notification dated 01.06.2021 and participation of the applicants therein was not brought to the notice at the time of final hearing of the OA No.167/2019 till the order passed on 23.08.2021. In this regard, learned counsel Shri M.S.Trivedi appearing for the original applicants replied that right of the applicants to be selected pursuant to the notification dated 21.12.2017 was the subject matter in the OA No.167/2019 before this Tribunal. The applicants right with respect to the said notification was subject matter of adjudication and not under the subsequent notification i.e. 01.06.2021. It is further stated by the counsel for the applicant that it was the duty of the respondents to bring to the notice about the issuance of fresh notification dated 01.06.2021 during the pendency of the OA. Further, he submits that subject matter in the said OA was cancellation of their name vide impugned order dated 12.4.2019 with respect to notification dated 21.12.2017 whereas in the present OA, the applicants are aggrieved by the notification dated 01.06.2021 which was a separate cause. Hence, the applicants have filed the present OA.
From the record, it is noticed that in the present OA, notices were issued on 23.12.2021 by Single Member Bench (Administrative Member) of this Tribunal, returnable by today.
On behalf of the respondents, Standing counsel Shri M.J.Patel appears. When a query was put to him by this Tribunal that as to why Railways Administration had not brought to the knowledge of this Tribunal the issuance of notification dated 01.06.2021 during the pendency of the OA No.167/2019 wherein the cancellation of panel pursuant to the notification dated 21.12.2017 was challenged and by way of new notification, vacancies which were notified in the year 2017 had also been clubbed, in this regard, he fairly submits that as such, he has no instruction on the issue.
Considering the material on record and submissions of the counsel for the applicants, it emerges that the applicants herein have suppressed the material facts before this Tribunal in their earlier OA i.e. OA No.167/2019 about their response to the notification dated 01.06.2021 as it is evident that they have been considered to be eligible by the respondents. Learned counsel Shri M.S.Trivedi submits that it does not make any difference if the applicants have not brought to the knowledge of this Tribunal about their response to the new notification dated 01.06.2021 during the pendency of the OA No.167/2019 and not placed the said fact before this Tribunal at the time of final hearing in the said OA No.167/2019. The material on record indicate that the applicants were very much aware about the issuance of the notification dated 01.06.2021 and admittedly they have not brought to the notice of this Tribunal in their earlier OA that too they had submitted their willingness before the respondents authority for their selection pursuant to fresh notification dated 01.06.2021 and suppressed the said material facts. However, the applicants continued to press their claim for selection with respect notification dated 21.12.2017 and final order came to be passed by this Tribunal on 23.8.2021 in OA No.167/2019.
We are of the considered opinion that it is not proper to intervene at this stage with respect to selection process pursuant to the notification dated 01.06.2021 because it includes the vacancies notified in the year 2017 notification. As noted hereinabove, the decision with respect to selection process notification dated 21.12.2017 is sub judice before the Hon‟ble High Court in SCA No.17778/2021.
In view of aforesaid factual matrix, we decline to entertain this OA. Accordingly, the same stands dismissed. No costs.