Allahabad High Court

Akhtar Raza vs Union Of India And 5 Others on 2 September, 2025





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:153918-DB
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
 RESERVED 
 
 
 
WRIT - A No. - 8238 of 2025    
 
   Akhtar Raza    
 
  .....Petitioner(s)   
 
 Versus  
 
   Union of India and 5 others    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Petitioner(s)   
 
:   
 
Ashish Kumar Srivastava, Sunil, Sr. Advocate   
 
  
 
Counsel for Respondent(s)   
 
:   
 
 S.P. Singh (ASGI), Akhilesh Kumar, Prabhakar Awasthi, Saumitra Singh   
 
     
 
  
 
 
 
 
 
 
 
 
 
  
 
WITH
 
 
 
 
 
WRIT - A No. - 8937 of 2025    
 
   Avinash Chandra Tiwary      
 
  .....Petitioner(s)   
 
 Versus  
 
   Union of India and 2 others    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Petitioner(s)   
 
:   
 
Akhilesh Kumar, Prabhakar Awasthi   
 
  
 
Counsel for Respondent(s)   
 
:   
 
 S.P. Singh (ASGI), Saumitra Singh, Akhilesh Kumar Rajbhar   
 
     
 
  
 
 
 
 
 
 
 
 
 
Chief Justice's Court           
 
  HON'BLE ARUN BHANSALI, CHIEF JUSTICE   
 
    HON'BLE KSHITIJ SHAILENDRA, J.

(Per: Arun Bhansali, CJ)

1. These writ petitions have been filed against order dated 28.05.2025 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad (?Tribunal?), whereby the Original Applications (?OAs?), filed by the petitioners-Akhtar Raza and Avinash Chandra Tiwary, came to be dismissed.

2. The respondent-Railways issued notification dated 23.10.2020 for one unreserved post of Assistant Material Manager, Group-B (?AMM?) against 30% quota vacancy for the Stores Department. The selection was to take place by way of Pre-qualifying written examination followed by main written examination. A candidate securing 75% and above in the Pre-qualifying written examination was eligible to appear in the main written examination. The Railway Board also prescribed that the number of candidates for main examination should be restricted to 5 times the number of vacancies in the order of merit, as such, against one vacancy, 5 candidates could be called for main written examination, as per merit.

3. The result of Pre-qualifying written examination was declared on 23.03.2021 and total 5 candidates in order of merit including Akhtar Raza and Avinash Chandra Tiwary (petitioners herein) were declared successful and they became eligible for appearing in the main examination. The main examination was held, the petitioner-Akhtar Raza was declared successful for promotion to the post of AMM and was posted on the said post on 30.09.2021.

4. One of the candidates, at the Pre-qualifying stage, Saroj Kumar Singh, demanded copy of answer sheet through RTI, from which, it was detected that the Evaluating Officer calculated the marks obtained by said Saroj Kumar Singh as 91-03=81, whereas the actual marks obtained by him should have been 88 and as at the main examination, only 5 candidates were called, in which, Akhtar Raza, the ultimately successful candidate had obtained 82 marks and was at the last position, the said Saroj Kumar Singh, who had obtained more marks than 4 candidates, was deprived from appearing in the main examination and as per merit, petitioner-Akhtar Raza would have been at 6th position in the Pre-qualifying examination and essentially, was not eligible to appear at the main examination.

5. On coming to light of the said discrepancy, wherein Saroj Kumar Singh was deprived from appearing in the main examination and Akhtar Raza, who factually was at No. 6 in the merit list, was ineligible to even appear in the main examination, was accorded promotion, corrective measures were initiated and notice dated 04.03.2022 was issued to the petitioner-Akhtar Raza for submitting his response against the proposed action of cancellation of the Pre-qualifying written examination held on 19.02.2021 and the Panel dated 24.09.2021.

6. The petitioner, Akhtar Raza, submitted his representation dated 25.03.2022 and after consideration, the General Manager, on 29.04.2022, ordered for cancellation of the selection process from Pre-qualifying stage and accordingly, by order dated 02.05.2022, the petitioner-Akhtar Raza was reverted to his original post.

7. Feeling aggrieved, OA was filed by Akhtar Raza questioning the validity of the order dated 02.05.2022 passed by the respondents and seeking direction to the respondents to allow him to continue on the post of AMM. On 12.05.2022, the Tribunal stayed the operation of the order dated 02.05.2022.

8. The other petitioner-Avinash Chandra Tiwary filed OA seeking quashing of the order dated 02.05.2022 to the extent of cancellation of the whole examination from the Pre-qualifying stage, sought vacation of the interim order passed in favour of Akhtar Raza and, based on his merit in the final examination, sought promotion to the post of AMM.

9. The OAs were contested by respondent-Railways, inter alia, indicating that 39 candidates appeared in the Pre-qualifying written examination and 5 candidates in the order of merit, with petitioner-Akhtar Raza having 82 marks and at No. 5 in the merit list, were declared successful for the main written examination and based on the combined merit of main written examination, service record and viva-voce, petitioner-Akhtar Raza was declared successful. When the mistake committed qua Saroj Kumar Singh was detected, corrective measures were initiated by issuing notice to the petitioner and after providing opportunity of hearing to him, the order has been passed and therefore, the OAs deserve to be dismissed.

10. Saroj Kumar Singh-respondent No. 5 filed counter affidavit before the Tribunal emphasizing that petitioner-Akhtar Raza being an unsuccessful candidate, according to the merit of Pre-qualifying examination as he was at No. 6, appeared in the main examination and therefore, the order did not call for any interference.

11. The OA filed by petitioner-Avinash Chandra Tiwary was also contested by the respondents.

12. Before the Tribunal, on behalf of petitioner-Akhtar Raza, submissions were made that the error/mistake committed by the respondent-Department in the matter of evaluation cannot be attributed to him as he was neither found to have committed any fraud nor misrepresentation before the Department for getting the promotion. It is claimed that a selection can only be cancelled on the ground of procedural irregularity/malpractice, which is not found in the entire process and as such, same could not be cancelled.

13. The respondents, based on the provisions of the Indian Railway Establishment Manual (?IREM?) and the fact that there was a factual mistake during evaluation of the answer book and the petitioner-Akhtar Raza was not eligible to appear in the main examination, supported the order impugned.

14. Qua the plea raised by petitioner-Avinash Chandra Tiwary, it was submitted that the plea raised has no substance.

15. The Tribunal, after hearing the parties and referring to para 228 of the IREM Volume-I dealing with erroneous promotions, found that the Department was empowered to withdraw/cancel the erroneous promotion of an employee. The IREM and Master Circulars issued by the Railway Board from time to time have statutory force. The Tribunal also came to the conclusion that the appointment of petitioner-Akhtar Raza on promotion is not justified contrary to statutory rules and referring to the judgment in Union of India Vs. Narendra Singh : (2008) 2 SCC 750, came to the conclusion that there was no illegality in action of the respondents in correcting the mistake and consequently, dismissed both the OAs, however, ordered that no recovery of salary for the post of AMM paid to petitioner-Akhtar Raza during the pendency of the OA shall be made from him.

16. Learned Senior Counsel appearing for the petitioner-Akhtar Raza made vehement submissions that the Tribunal was not justified in dismissing the OA. Submissions have been made that ever since the promotion was made by order dated 30.09.2021 till the OA was dismissed on 28.05.2025, the petitioner has discharged his duties without any complaint in this regard. It was reiterated that the error/mistake committed by the respondent-Department in the matter of evaluation could not be attributed to the petitioner and as he is neither being guilty of any fraud nor misrepresentation, the appointment on promotion could not have been cancelled after a passage of about 4 years since the promotion took place on 30.09.2021 and therefore, the order impugned deserves to be quashed and set aside. Reliance was placed on Radhey Shyam Yadav and another Vs. State of U.P. and others : (2024) 1 SCR 21 and Vikas Pratap Singh and others Vs. State of Chhattishgarh and others : (2013) 14 SCC 494.

17. Learned counsel for the respondents supported the order impugned. Submissions have been made that the stipulation in the IREM is very specific providing for cancellation of promotion, wherein an officer has been promoted erroneously and reverted back to the position. Further submissions have been made that the claim made that petitioner had worked for about 4 years on the post is baseless inasmuch as after the appointment took place on 30.09.2021, the same stood cancelled by order dated 02.05.2022, i.e., within 7 months and only because interim order was granted by the Tribunal that the petitioner continued to work on the promoted post qua which he cannot claim any benefit. Further submissions were made that the judgment in the case of Radhey Shyam Yadav (supra) cannot be pressed in service as the same pertains to a case of a direct recruitee, who had worked for 8 to 9 years.

18. Further submissions have been made that the order was passed providing opportunity of hearing, whereafter the cancellation took place in terms of the statutory provisions and admitted mistake committed during the course of evaluation process. Further submission have been made that there is no provision of supplementary examination, as claimed by the petitioner that said Saroj Kumar Singh could have been permitted to appear in supplementary main examination and viva voce, etc. and therefore, the petition deserves dismissal. Reliance was placed on Indian Council of Agricultural Research Vs. T.K. Suryanarayan and others : (1997) 6 SCC 768 and judgement in the case of Narendra Singh (supra).

19. We have considered the submissions made by counsel for the parties and have perused the material available on record.

20. There is no dispute on the facts of the case, wherein admittedly, one Saroj Kumar Singh was wrongly awarded 81 marks whereas he was entitled to 88 marks during the pre-qualifying examination. If he was correctly awarded 88 marks, in the main examination, wherein against the single vacancy only 5 candidates could appear, the petitioner-Akhtar Raza could not have find place as including Saroj Kumar Singh, he was at serial No. 6 in the merit list. Post main examination and evaluation held, based on service record and viva-voce, the petitioner-Akhtar Raza was selected against 30% quota vacancy.

21. The respondents, on a complaint made after copy was obtained by Saroj Kumar Singh through RTI referring award of marks, initiated process of cancellation or corrective measures, notice was issued to the petitioner to give response and the same resulted in passing of the order dated 02.05.2022 cancelling the entire process starting from Pre-qualifying written examination till the appointment of the petitioner on 30.09.2021 and reverting the petitioner back.

22. Once it is not in dispute that there was mistake in evaluating the answer book, whereby the Examiner awarded instead of 91-3=88 marks, 81 marks to Saroj Kumar Singh and placing him at No. 6 in the merit list and depriving him of appearing in the main examination/participating in further process, the procedure prescribed under para 228 of the IREM Volume ? I, kicked him dealing with erroneous promotions, which, inter alia, required cancellation of the promotion on detection of mistake.

23. The provision also required that where selection was cancelled after declaration of result on account of procedural irregularities/malpractice, due notice be given to the candidate, who had been declared selected. Admittedly, in the present case, notice was issued to the petitioner and after providing opportunity of hearing, order impugned has been passed and as such, it cannot be said that either on facts or statutory provisions or for violation of principles of natural justice, the order needs to be interfered with.

24. The sheet anchor of the submissions made by counsel for the petitioner has been that as the petitioner has worked for about 4 years on the promoted post, he should not be reverted back.

25. As noticed hereinbefore, the selection took place on 30.09.2021 and notice was issued to the petitioner on 04.03.2022, i.e., within a period of about 5 months from the date the promotion was accorded and the same resulted in passing of the order dated 02.05.2022, i.e., within about 7 months of the date of promotion. The Tribunal, on challenge being laid by the petitioner, granted interim order on 12.05.2022, which continued till the dismissal of the OA. As noticed hereinbefore and emphasized by counsel for the respondent, the order was passed by the respondents with utmost expedition as soon as the mistake came to light, whereby Saroj Kumar Singh was deprived of participation in the main examination and petitioner-Akhtar Raza despite being ineligible, was permitted to participate in the main examination and subsequent stages of the selection and within a period of 7 months, the order was passed.

26. Merely because the petitioner continued on the promoted post for another 3 years on account of interim order granted by the Tribunal, cannot by itself be used by him for seeking a relief, based on his having worked on the post for purported considerable period. Hon?ble Supreme Court in State of U.P. and others Vs. Raj Karan Singh : (1998) 8 SCC 529, inter alia, observed and laid down as under :

?Besides, merely because a person continues under the interim orders of the Court, such continuance on the post cannot and, in this case, does not confer on him any right for continuance, it does not enhance his case for regularisation. It is only an interim arrangement pending decision by the Court and cannot disturb the position in law or equities, as on the date of the petition.?

As such, the plea raised claiming having worked for 4 years on the promoted post, cannot be countenanced.

27. So far as judgment in the case of Radhey Shyam Yadav (supra) is concerned, it would be seen that the same pertains to appointment on the post of Assistant Teacher, wherein instead of sanctioned two posts, the advertisement was issued for three posts and appointment was accorded, wherein the Hon?ble Supreme Court came to the conclusion that there was no material to demonstrate that applicants from the open market were guilty of colluding in the manipulation, based on which, the Hon?ble Supreme Court formulated the question whether the State was justified in abruptly and without anything more stopping the salary and after referring to judgments in Chief Engineer, M.S.E.B. and another Vs. Suresh Raghunath Bhokare : (2005) 10 SCC 465, Vikas Pratap Singh (supra), Dr. M.S. Mudhol and another Vs. S.D. Halegkar and athers : (1993) 3 SCC 591 and Rajesh Kumar and others vs. State of Bihar and others : (2013) 4 SCC 690, came to the conclusion that as the applicants were not at fault, the State could not have abruptly stopped their salaries.

28. The outstanding feature of the judgment in the case of Radhey Shyam Yadav (supra) as well as judgments relied on therein is that the same pertain to appointments on recruitment, which cases stand on a different footing from the case of a promotion made by way of a Departmental Examination, as insofar as the recruitment is concerned, a person having worked for a considerably long time, if is thrown out of employment over no fault of his, he can even lose his eligibility on account of age, etc. for getting back the employment, whereas in case of departmental promotion, the officer wrongly promoted does not lose his eligibility to participate in the fresh exercise.

29. Qua the cases of erroneous promotion, law has been laid down in the case of T.K. Suryanarayan (supra), wherein it has been laid down as under:

?8. We are, however, unable to accept the submission made by the learned counsel appearing in both these SLPs. Even if in some cases, erroneous promotions had been given contrary to the Service Rules and consequently such employees have been allowed to enjoy the fruits of improper promotion, an employee cannot base his claim for promotion contrary to the statutory service rules in law courts. Incorrect promotion either given erroneously by the Department by misreading the said Service Rules or such promotion given pursuant to judicial orders contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory service rules.?

30. The judgment in the case of T.K. Suryanarayan (supra) has been followed in the case of Narendra Singh (supra), wherein it has been laid down as under:

?28. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors., (1997) 6 SCC 766, it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore Statutory Rules.

29. As observed by us, Statutory Rules provide for passing of Departmental Examination and the Authorities were right in not relaxing the said condition and no fault can be found with the Authorities in insisting for the requirement of law. In the circumstances, the action of the Authorities of correcting the mistake cannot be faulted.

30. True it is that before such an action is taken and a person is actually reverted, he must be given an opportunity to show cause why the proposed action should not be taken. He may be able to satisfy the Authorities that there was no such mistake. But even otherwise, principles of natural justice and fair play require giving of such opportunity to him. But as observed earlier, in the instance case, in accordance with Rule 31-A of the Fundamental Rules, notice was issued to the respondent- employee, explanation was sought and thereafter the order was passed. The said order, in our considered view, was just, proper and in consonance with law and it ought not to have been set aside by the Tribunal or by the High Court. To that extent, therefore, the orders impugned in this appeal deserve to be set aside. ?

31. In view of the above, it cannot be said that the respondent-Railways, in quashing the order of promotion and the Tribunal, in upholding the said order, committed a mistake so as to require interference by this Court.

32. So far as the challenge laid by Avinash Chandra Tiwary is concerned, the claim made that the respondents should have either promoted him as he was No. 2 in the final select list or that Saroj Kumar Singh should have been subjected to supplementary examination qua the main examination and subsequent process thereto is concerned, the plea raised has been noticed for rejection only.

33. It would be seen that the main examination was to be attempted by 5 eligible candidates and Saroj Kumar Singh was deprived of the said opportunity and Akhtar Raza wrongly participated in the said main examination and subsequent processes. The examinations, Pre-qualifying or main, are held to judge the relative merit of the eligible candidates and all have to be judged on the same parameters, i.e., based on the same question paper/participation in the same examination so as to assess their relative merit. By seeking a supplementary main examination and subsequent process for Saroj Kumar Singh would result in he being judged on parameters different from the parameters, on which, the other candidates were examined/judged and as such, the plea raised in this regard cannot be countenanced.