Shubham & Ors. vs The Secretary, Railway Board & Ors.

By Kumar Rajesh Chandra Member (A)

Since both the above O.As have common facts and grounds of law and as such they have been heard together and are being disposed of by a common order.

In the above O.As, the applicants have sought for quashing of order dated 25.9.2020 by means of which the respondents have published the panel for the post of Assistant Loco Pilots with a further prayer to direct the respondents to re-draw the list of short-listed candidates for various stages of selection to the post of Assistant Loco Pilots notified vide GDCE notification No. 01/2018 without change of category; or in the alternative either select those candidates who have not opted for any relaxation in their respective category.

The facts of O.A. no. 527 of 2020 are being taken, being leading one, for brevity of the case.

Respondents issued a notification No. 01/2018 dated 14.8.2018 and advertised various posts including 164 posts of Assistant Loco Pilot (in short ALP). Since the applicants were fully eligible and also having the requisite qualification for the said post of ALP, they have applied within time in the prescribed format. As per notification, the selection was based on Computer Based Test (CBT) to be conducted online. The CBT was conducted and the result thereof was declared on 31.10.2019 whereby as many as 328 candidates under UR category were shortlisted for Computer Based Aptitude Test (CBAT). According to the applicants, the CBAT was conducted on 20.11.2019 and the respondents published a list of 104 candidates under the UR category to be called for documents verification. The respondents published the schedule for document verification on 5.2.2020. According to the applicant, on 20.6.2020 as against 164 posts, the respondents published the provisional part panel of 135 candidates for the post of ALP. The respondents issued a notice to appear for medical examination on 10.7.2020 only for three candidates, whose names did not find place in the panel dated 5.9.2020. On coming to know of the above irregularity, South East Central Railway, Track Maintainer Association wrote a letter/application dated 13.7.2020 to the authorities concerned followed by another representation dated 31.8.2020. Without passing any order on the said representation/letter, the respondents published the cut off marks for various categories on 27.7.2020. Thereafter, the respondents published the notice intimating that 21 candidates have failed in Medical examination and have been declared unfit in A-1 category vide order dated 4.8.2020. The respondents again published a second provisional part panel consisting of only two candidates on 25.9.2020. The case of the applicants is that despite the fact that they obtained higher marks than the cut off marks, they have been denied for empanelment for the post of ALP. Hence the O.A.

The respondents have contested the claim of the applicants by filing Reply wherein they have stated that the three candidates mentioned in the letter dated 10.7.2020 for medical examination for the post of ALP were actually called for document verification vide letter dated 5.2.2020. Further, the South East Central Railway Track Maintainer Association is not a recognized association, with the result, the representation as submitted by the Association had not been replied. The respondents have denied that the applicants had obtained higher marks than the cut off marks. The respondents also pleaded that the extra candidates were called for document verification against the notified vacancies as it has been clearly mentioned at sl. No.2 of the notice dated 16.1.2020. They have also stated that the applicant nos. 1, 2 and 4 are unreserved candidates and below the cut off of unreserved (UR) candidates, hence they were not called for medical examination. As regards the applicant no.3 is concerned, it is stated that he has given first choice for Technician-III post, hence he was not considered for ALP as he is coming in the merit list of Technician III post. The respondents also asserted that all the constitutional provisions regarding reservation in Recruitment has been followed. They have also cited the decision of Hon’ble Supreme Court in the case of R.K. Sabharwal Vs. State of Punjab wherein it has been held that the reserve category candidates who are appointed on the basis of the merit and not on account of reservation are not to be counted towards the reserved quota. The respondents further stated in their Reply that the selection of ALP through General Departmental Competitive Examination consists of two stages viz. CBT and CBAT. The candidates who qualify in the CBT are called for next stage that is CBAT in the ratio of 1:8 according to their category/community and the candidates who qualified in CBAT are required for document verification in the ratio of 1:1.5 and thereafter the candidates are sent for medical examination in 1:1 ratio as per their merit position in their category. Further, panel is being drawn amongst the medically fit candidates following the reservation rules. The respondents also pleaded in their Reply that OBC/SC/ST candidates who qualify in CBT with relaxed standard as prescribed for their category are considered against their respective category only for all subsequent stages of recruitment process. In the selection of ALP, all the reserved community candidates, who have been empanelled against UR have qualified CBT and CBAT with general standard marks. In conclusion, the respondents have stated that the applicants are not entitled to get any relief(s) and as such O.A. deserves to be dismissed.

The applicants have filed Rejoinder to the Reply filed by the respondents by negating the contentions of the respondents made in the Reply while reiterating the averments as already made in the Original Application. In the Rejoinder, the applicants have placed reliance on the following decisions in support of their claim: (i) Deepa E.V. Vs. Union of India & Others reported in 2017 (12) SCC 680) (ii) Gaurav Pradhan & Others Vs. State of Rajasthan & Others reported in SCC 2018 (11) 352.

The facts of other O.A. (868 of 2021) are also similar. In this case also, the applicant, therein, has sought for quashing of order dated 25.9.2020 (Annexure A/1) by which the respondents have published the panel for the post of ALP. As such, there is no necessity for giving further narration of the case as far as O.A. No. 868 of 2021 is concerned.

We have heard the learned counsel for the parties at length and also perused the pleadings available on record.

From the pleadings as narrated hereinabove, it would be clear that the candidates are shortlisted for CBT and CBAT as well as document verification according to their merit position category wise and the same cannot be termed as final position of the candidates for empanelment. Further, the panel is being drawn as per merit position of the candidates following reservation rules. The respondents have specifically denied that the applicants had obtained higher marks than the cut off marks, which has not been disputed by the applicants.

Learned counsel for the applicants, in support of their claim, has cited the following decisions:-(i) Deepa E V Vs. Union of India & Others reported in 2017 Law Suit (SC) 402 (ii) Jithu L Dev Vs. Chief General Manager, Kerala Circle, BSNL & Others in O.A. No. 190 of 2014 decided by Ernakulam Bench of the Tribunal on 16^th August, 2018.

Learned counsel for the respondents has also placed reliance on the following decisions in support of their submissions: (i) R.K. Sabharwal & Others Vs. State of Punjab & Others reported in 1995 AIR 1371 (ii) Ranjan Kumar Vs. State of Bihar and Others reported in Civil Appeal No. 4455-4458 of 2009 decided on 16^th April, 2014

We have carefully gone through the decisions as cited by the learned counsel for the applicants as well as learned counsel for the respondents. In the case of Deepa E V (supra), the Hon’ble Supreme Court has observed that “If any person belonging to reserved categories is selected on the basis of merits in open competition along with general category candidates, then he will not be adjusted towards reserved category, that is, he shall be deemed to have been adjusted against the unreserved vacancies without availing any relaxation.” Basing upon the above observations, the Hon’ble Supreme Court has been pleased to dismiss the Appeal as filed by Deepa E.V. (supra). The above proposition of law has also been followed by Ernakulam Bench of the Tribunal in O.A. No. 190 of 2014 in re. Jithu L Dev Vs. Union of India & Others by holding that if a candidate seeks relaxation in form of SC/ST/OBC category, they are not entitled to be considered in the general candidate list.

From the plain reading of the order of Hon’ble Supreme Court, it is quite clear that OBC/SC/ST candidates who are selected on merit will be considered against the general/OC candidate select list. They shall not be considered as reserved category candidate list provided that they have not availed any relaxation for their category. They have competed with the general candidate and this is fair and just also. In the case of Gaurav Pradhan & Others Vs. State of Rajasthan reported in 2018 SCC 11 352, the ratio laid down by Hon’ble Supreme Court in the case of Deepa E.V. has been reiterated. Apart from that, the Railway Recruitment Board in Centralized Employment Notification has mentioned that “…. Candidates who are shortlisted for second stage CBT availing the reservation benefits of a community shall continue to be considered only against that community for all subsequent stages of recruitment process.” But despite that, the respondents adopted double yardsticks on the same issue. In the instant case, the respondents have switched the category of candidates in exam to exam (CBT to CBAT) to give undue benefit to the candidates of their own choice by giving relaxation from their particular community.

We have also perused the decisions cited by the learned counsel for the respondents and none of them would be applicable in the present set of facts on the simple reason that the latest law of land would prevail on the issue.

The applicants sought certain information under Right to Information Act, 2005 to which reply has been given that the reserved category candidates were never evaluated with the minimum cut off marks of the Unreserved category, which was initially as 55.55234. In view of this matter also, the action of the respondents is not justified.

In view of the above discussions and the law laid down by the Hon’ble Supreme Court in the case of Deepa E.V. (supra), both O.A. deserves to be allowed and are accordingly allowed. Order dated 25.9.2020 is quashed and set-aside as far as the applicants in both O.As are concerned. Respondents are directed to recast the list of short listed candidates for various stages of selections to the post of ALP notified vide notification no. 01/2018 without change of category. The above exercise shall be carried out within a period of 90 days from the date of receipt of certified copy of this order. No costs.

Copy of this order be placed in the connected case as well.