Bombay High Court
Yogesh Devidas Patil And Ors vs Union Of India And Anr on 26 February, 2022
Bench: G. S. Kulkarni
1-WP-7830-2017 & Connected
Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7830 OF 2017
WITH
INTERIM APPLICATION NO. 1301 OF 2020
WITH
CIVIL APPLICATION NO. 2035 OF 2019
WITH
INTERIM APPLICATION NO. 1654 OF 2021
WITH
CIVIL APPLICATION NO. 913 OF 2018
Yogesh Devidas Patil & Ors. .. Petitioners
Versus
Union of India & Anr. .. Respondents
WITH
WRIT PETITION NO. 13054 OF 2017
Smt. Dnyaneshwar Somnath Shinde & Ors. .. Petitioners
Versus
Union of India & Ors. .. Respondents
WITH
WRIT PETITION NO. 13053 OF 2017
WITH
INTERIM APPLICATION ST. NO. 16320 OF 2021
Abhay Shankarrao Shinde & Ors. .. Petitioners
Versus
Union of India & Ors. .. Respondents
WITH
WRIT EPTITION NO. 4001 OF 2018
Shri Jitendra Natthuji Dhanore & ors. .. Petitioners
Versus
Union of India & Ors. .. Respondents
1
1-WP-7830-2017 & Connected
WITH
WRIT PETITION NO. 6267 OF 2021
Mahendra Devidas Patil & Ors. .. Petitioners
Versus
Union of India & Ors. .. Respondents
Mr. Vijay Kurle a/w Mr. Nilesh Ojha and Mr. Mangesh
Dongre for Petitioners in WP No.7830/2017 and for
Applicants in CAW/2035/2019 and CAW/913/2018.
Mr. Rahul Walia a/w Asmita Pendharkar for petitioners
in WP/13053/2017, WP/13054/2017 and WP/4001/
2018 and for respondents in IAST/16320/2021.
Mr. Rajeshwar Panchal for petitioners in
WP/6267/2021.
Mr. Ashish Rao a/w Mr. H. S. Khokhawala i/by M/s
Nankani & Associates for Intervenor/Applicant in
IA(St)/16320/2021
Mr. T.J. Pandian a/w Mr. T.C. Subramanian for
Respondents-UOI.
C0RAM: DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
RESERVED ON: NOVEMBER 24, 2021
PRONOUNCED ON: FEBRUARY 26, 2022
JUDGMENT [Per Dipankar Datta, CJ.]:
1. This is a batch of writ petitions, at the instance of 339
petitioners. These petitioners assail a common judgment and
order of the Central Administrative Tribunal, Mumbai Bench,
Mumbai (hereafter "the Tribunal" for short) dated 10 th
February, 2017 dismissing several original applications on its
file. We propose to dispose of such writ petitions by this
common judgment and order.
1-WP-7830-2017 & Connected
2. The original applications were instituted by 407 aspirants
for public employment. They had participated in the selection
process conducted by the Central Railway for appointment on
Group 'D' posts, which followed an advertisement dated 2nd
July, 2007. Allegedly, they were denied appointment despite
being successful in the 'Physical Examination Test' (hereafter
"PET" for short), written examination and medical test. The
Tribunal, however, did not find any merit in the contentions
raised by the original applicants and spurned the challenge by
the impugned judgment and order.
3. The question that we are tasked to decide is whether the
Central Railway illegally denied appointment to the petitioners,
and also as to whether the Tribunal was justified in dismissing
the original application.
4. The dispute lies in a narrow compass. The common claim
of the original applicants before the Tribunal was that the
Central Railway deviated from policy circulars issued by the
Railway Board [Circular No. RBE No.121 dated 18th July, 2005,
since modified by Circular No. RBE No.37 of 2007 dated 12 th
March, 2007] governing recruitment on Group 'D' posts. The
selection process, they contended, stood vitiated because (i)
successful candidates like the original applicants were denied
appointment amounting to illegality and arbitrariness; (ii) no
merit list of successful candidates was published leaving clear
room to suspect nepotism and favouritism; (iii) 6 (six) + 1
(one), that is 7 (seven) panels in all were declared not
according to merit but on the basis of roll numbers of the
1-WP-7830-2017 & Connected
empaneled candidates, contrary to the aforesaid circulars which
required publication of list on the basis of merit; (iv)
appointments were offered without respecting the relative
merits of the candidates; (v) rules of the game were altered
after commencement of the game by introducing cut-off marks
which were not mentioned in the employment notice; and (vi)
recourse having been taken by the Central Railway to an unfair
and non-transparent procedure resulting in appointment of
undeserving candidates, the same resulted in exclusion of the
original applicants from the zone of consideration for
appointment.
5. The Central Railway defended its action of not offering
appointment to the original applicants by filing reply affidavits
and additional affidavits. Although it was not disputed before
the Tribunal that the original applicants were successful in
clearing the qualifying examinations but the Central Railway
claimed that they could not be appointed because, based on
the result of the written examination, they were found to have
secured less marks than the last appointed candidate in the
open, SC, ST and OBC categories. The further claim was that
in the midst of the selection process it had been felt appropriate
to call 20% candidates, over and above the number of
vacancies, at the time of document verification to meet any
shortfall, should any successful empanelled candidate be
disinclined to accept the offer of appointment; and that the
original applicants were called upon to appear for document
verification only because they formed part of this group of 20%
excess candidates. It was also claimed that the 6412 advertised
1-WP-7830-2017 & Connected
vacancies having been filled up by appointing 6171 candidates,
what remained were 241 vacancies. Of them, 209 vacancies for
ST candidates could not be filled up for want of adequate
number of such candidates and 32 cases were pending for
verification. While contending that there was no illegality or
lack of transparency in the selection process, the Central
Railway urged that the original applications be dismissed.
6. The Tribunal not only heard the parties but delved deep
into the selection process by calling for the records of selection
and by also perusing the same. By a lengthy judgment, it
proceeded to uphold the contentions of the Central Railway and
thereby dismissed the original applications.
7. In these proceedings before us arising from the common
judgment and order dated 10th February, 2017, more or less
the same points that were raised before the Tribunal have been
raised with additional points that the Tribunal erred in
considering the grievances of the petitioners in the proper
perspective, failed to apply its mind to the materials on record
and returned findings which are unsustainable in law.
8. Mr. Walia, Mr. Ojha, Mr. Kurle and Mr. Panchal, learned
counsel appearing for the different set of petitioners and Mr.
Pandian have advanced arguments, cited several decisions of
the Supreme Court and filed separate written notes of
arguments for our consideration.
9. The points which were specifically urged before us are
these. First, the petitioners contended that the call letters
issued to them for document verification did not ever indicate
1-WP-7830-2017 & Connected
that the petitioners formed part of the group of excess 20%
candidates who were called to take care of shortfall, if any. The
contra argument of the Central Railway is nothing but an
afterthought. Secondly, it was contended that the petitioners
had invoked the machinery of the Right to Information Act,
2005 (hereafter "RTI Act", for short). Pursuant thereto, they
were informed that the records of selection had been destroyed
and hence was not available for inspection. Surprise was
expressed by the learned counsel as to how, prior to
termination of proceedings, the records could be destroyed
thereby disabling the petitioners to be satisfied that they were
given a fair deal. Thirdly, they contended that information
derived under the RTI Act revealed 5347 candidates having
joined and 1065 vacancies remaining unfilled. It was,
accordingly, contended that even if the petitioners were part of
the group of excess 20% candidates, they ought to have been
appointed. Finally, the Tribunal had referred to and relied on a
judgment of the Chattisgarh High Court, upholding the order of
the Central Administrative Tribunal, Bilaspur, where too a
similar selection process was under challenge and the
candidates challenging such process were denied relief. It was
brought to our notice that the Supreme Court in its decision in
Dinesh Kumar Kashyap vs. South East Central Railway1
reversed the decision of the Chattisgarh High Court and
directed appointment to be given to those candidates who were
in the group of excess 20 % candidates.
1 (2019) 12 SCC 798
1-WP-7830-2017 & Connected
10. Per contra, Mr. Pandian, learned counsel for the Central
Railway, contended that there has been no illegality in not
offering appointment to the petitioners. According to him,
though the petitioners were called for document verification,
they did not even form part of the group of excess 20%
candidates. Further, those who were called for document
verification were never assured that even if there be any
shortfall, they would be appointed. Unfortunately, only certain
vacancies reserved for the Scheduled Tribe candidates (209)
could not be filled up and the petitioners do not claim to belong
to such category. It has been heavily stressed upon by him that
the petitioners have not been able to demonstrate that any
candidate, inferior to them on merit, came to be appointed.
Having regard to the same, question of the petitioners being
discriminated leading to violation of Articles 14 and 16 of the
Constitution does not and cannot arise. The decision in Dinesh
Kumar Kashyap (supra) was sought to be distinguished by
submitting that the concerned Railway had clubbed together
vacancies of different recruitment processes, which the Court
faulted. That not being the case here, he urged that the ratio
of such decision has no application here. He concluded by
submitting that since the Tribunal, as the Court of first instance,
has looked into the relevant records and returned findings
which are not perverse, the writ court ought not to sit in appeal
over the judgment of the Tribunal. He, thus, prayed for
dismissal of the writ petitions.
1-WP-7830-2017 & Connected
11. We have heard the parties at substantial length,
considered the materials on record and perused the written
notes of arguments.
12. The law laid down by the Supreme Court in relation to
disputes raised by unsuccessful candidates aspiring for public
service is well-settled. Reference to all the decisions may not
be necessary for the purpose of disposal of these writ petitions.
However, the salutary principles laid down by the Supreme
Court in its several decisions may be usefully condensed into
"the ten commandments" for the same to be applied to the
facts and circumstances of the present cases. The same are:
(i) The rule of appointments to public service is that it
should be through open invitation and on merits.
After the selection process is complete, a merit list
or a select list (by whatever name called) has to be
prepared. While filling up the vacancies, the State is
bound to respect the comparative merit of the
candidates, as reflected at the recruitment test, and
no discrimination can be permitted.
(ii) Inclusion of the name of a candidate in the
merit/select list is at best a condition of eligibility for
the purpose of appointment. A candidate in the
merit/select, list though has no vested right to be
appointed, he has a right to be considered for
appointment and the State does not have the license
of acting in an arbitrary manner. The appointing
authority can neither ignore the list nor decline to
make appointment on his whims.
(iii) Despite vacancies still being available for
appointment out of the number of vacancies
advertised, the successful candidates do not acquire
an indefeasible right to be appointed. Unless the
relevant recruitment rules so indicate, the State is
under no legal duty to fill up all or any of the
1-WP-7830-2017 & Connected
vacancies. Nonetheless, the decision not to fill up
the vacancies has to be taken bona fide for
appropriate reasons.
(iv) Selection made by an authority for appointment is
not ordinarily open to judicial scrutiny because
whether a candidate is fit for a particular post or not,
has to be decided by the duly constituted Selection
Committee which has the expertise on the subject.
Since it lacks the expertise, it is not the function of
the Court to hear appeals over the decisions of
Selection Committees and to scrutinize the relative
merits of candidates.
(v) Subject to a candidate's prior unawareness of any
defect or infirmity in the selection process, such
process can be interfered with only on limited
grounds, such as a glaring illegality in the procedure
vitiating the selection, or patent material irregularity
in the constitution of the Selection Committee, or
proved mala fide affecting the selection, or when an
appointment made, based on a selection process, is
susceptible to challenge on grounds similar to those
for which a writ of quo warranto may legitimately
issue.
(vi) Normally, rules following which the selection has
commenced cannot be changed/altered but nothing
prevents the appointing authority to take measures
for screening of candidates, if candidates in
numbers apply for employment and the need to
restrict the zone of consideration is felt. Similarly,
bench marks or cut-off marks for appointment could
be set without prejudicing the right of any
candidate, not based on considerations that are
extraneous but based on reasonable and bona fide
intention.
(vii) If a candidate despite being aware of any defect or
infirmity in a process of selection appears at the
examination for recruitment/interview by taking a
calculated chance, and finds the result of such
examination/interview not palatable to him, he
1-WP-7830-2017 & Connected
cannot turn around and subsequently contend that
the process of examination/interview was either
defective or unfair.
(viii) Filling up of vacancies by making appointments over
and above the number of vacancies advertised,
would be violative of Articles 14 and 16 of the
Constitution.
(ix) Wait-listed candidates have no right of appointment,
unless the relevant rules authorize appointment
from such list in the given circumstances.
(x) Appointment of candidates cannot be quashed
without the appointees being brought on record as
respondents.
13. It is true, as contended by learned counsel for the
petitioners, that instead of preparing and publishing
merit/select list in terms of Circular No. RBE No.121 dated 18th
July, 2005, since modified by Circular No. RBE No.37 of 2007
dated 12th March, 2007, separate panels were declared
containing names of successful candidates without indicating
their merit position but on the basis of roll numbers. It is further
not too clear as to why the petitioners were called for document
verification, if they were not within the group of excess 20%
candidates called to meet shortfall, if any. According to Mr.
Pandian, panels were declared at regular intervals since
thousands of appointments were being made and
appointments, at one go becoming impossible, had to be made
in phases. That could be true but the Central Railway should
not have raised false hopes by calling candidates for document
verification. Once called, they reasonably believed that they
were within the zone of consideration for appointment. Be that
as it may, mere call for document verification cannot clinch the
1-WP-7830-2017 & Connected
issue in favour of the petitioners. Any and every violation of a
circular may not merit an interference unless it is shown that
such violation amounts to a glaring illegality vitiating the
selection and prejudicing the candidates to no end. That has
not been shown with reference to any material on record. Also,
even if it were assumed that the Central Railway was
proceeding in a manner wholly contrary to law, that did not
happen overnight. The panels containing names of successful
candidates were declared over a period of time. If the merit list
of candidates had not been prepared and published, as required
by the circular, and at the same time panel after panel were
being declared with the roll numbers of the successful
candidates instead of in accordance with their inter se merit
position, nothing prevented the petitioners to raise a challenge
to the procedure adopted by the Central Railway at the
appropriate time and seek judicial intervention. We are
conscious that the petitioners being mere aspirants for
appointments cannot be expected to knock the doors of the
Tribunal at each and every stage of the process; however, sight
cannot be lost of the fact that the petitioners waited for all the
panels to be declared and then approached the Tribunal. It can
reasonably be inferred from the facts and circumstances that
the petitioners acquiesced in the procedure adopted by the
Central Railway and turned around when they were not offered
appointment. In our view, the conduct of the petitioners is a
relevant circumstance for deciding whether they are entitled to
discretionary relief.
1-WP-7830-2017 & Connected
14. Next, there is no material to show that the petitioners'
merits were ignored by the Central Railway while appointing
the 6171 candidates who came to be appointed. Hearing Mr.
Walia complain that the Public Information Officer of the
Central Railway had informed the petitioners of destruction of
the records while responding to their query under the RTI Act,
we enquired of Mr. Pandian as to why the records were not
preserved. Having heard Mr. Pandian respond, on instructions,
that incorrect information had been furnished to the
petitioners, we asked him to produce the OMR sheets of only
10 (ten) of the petitioners, roll numbers whereof were to be
notified by the petitioners' learned counsel, and to offer
inspection to them of such OMR sheets for the purpose of
identification that the same were, in fact, their sheets. This was
intended to ascertain how far the instructions provided to Mr.
Pandian were correct. We were informed in the midst of hearing
that upon inspection of the OMR sheets of 10 (ten) of the
candidates whoes OMR sheets were called for, no anomaly in
relation to identity or marks obtained could be detected.
15. Further, we had called upon the petitioners' learned
counsel to demonstrate that the petitioners had secured more
marks than the last appointed candidate from each category.
That too could not be demonstrated. Not having so done, the
argument of relative merits being overlooked does not appear
to have any substance. This, almost wholly, lends credence to
the argument of Mr. Pandian that the petitioners were not
subjected to any discrimination.
1-WP-7830-2017 & Connected
16. Moving further, we see no reason to hold that the
petitioners are entitled to claim an appointment merely
because of absence of any indication in the call letters issued
to them that they formed part of the excess 20% candidates.
Being called for document verification was no guarantee for
appointment. The contention so advanced, therefore, does not
commend to us to be sound.
17. Much has been argued by the petitioners with reference
to cut-off marks. According to them, fixation of such cut-off
marks without notifying the candidates amounts to changing
the rules of the game after the game had commenced, which
is impermissible. We have found absolutely no merit in this
argument. Although the panels were not prepared according to
merit which, we reiterate, the Central Railway ought to have
prepared, the marks obtained by the petitioners have been
found to be well below the cut-off marks. The cut-off marks
have been determined based on the marks obtained by the last
appointed candidate in each category. It is the stage when a
meandering game is brought to a halt. It is part of the selection
process. If the game is halted because of reasons that are free
from doubt or suspicion, one cannot really complain and
question why the game has been halted. It is only when the
game is halted by extraneous consideration and there is good
reason to suspect that the action is neither reasonable nor bona
fide that scrutiny by the Court would be justified. It being
axiomatic that offering appointment to any of the candidates
who secured marks less than the last appointed candidate in
1-WP-7830-2017 & Connected
each category would be illegal, the argument appears to us to
have been made in desperation.
18. It is time to consider the petitioners' contention that 1063
vacancies remain unfilled. We find that an information, received
under the RTI Act vide letter dated 4th February, 2021, has been
made part of the affidavit in rejoinder of the petitioners in Writ
Petition No.7830 of 2017 to the supplementary affidavit dated
24th March, 2021 of the respondents. Based thereon, it has
been contended on behalf of the petitioners that only 5347
candidates joined and thus, total 1065 vacancies still remain
unfilled. Having looked into the information provided vide letter
dated 4th February, 2021, we find that multiple panels were
declared on varying dates consisting names of 6147 candidates
for the advertised 6412 vacancies. Thus, even as per the said
information, the balance is 265 and not 1065. The petitioners
are, therefore, not correct in contending that 1065 vacancies
remain unfilled. The contention not being based on reliable
evidence, which could be trusted, stands rejected.
19. The claim of the Central Railway that 209 of the
remaining 241 vacancies, which could not be filled up, were
reserved for the ST candidates has not been disputed. That any
of the petitioners belong to ST category has also not been
shown. Even though they had formed part of the group of 20%
excess candidates and a shortfall did occasion, the petitioners
cannot legitimately claim appointment on reserved vacancies.
Also, the petitioners cannot claim appointment in respect of the
32 vacancies, for, they do not figure within the first 6412
candidates arranged as per inter se merit for appointment. The
1-WP-7830-2017 & Connected
argument that the petitioners are victims of arbitrariness in
State action in the matter of public employment is, thus,
misconceived.
20. Assuming for the sake of argument that merit was
compromised and any candidate less meritorious than the
petitioners was offered appointment, it was the duty of the
petitioners to identify and implead the candidates who obtained
appointment albeit undeservingly. None of the so-called
undeserving candidates is a respondent and question of
interference with the appointments made do not and cannot
arise.
21. What remains is, consideration of the decision in Dinesh
Kumar Kashyap (supra). Significantly, the petitioners by
relying upon the said decision are seeking to buttress their
claims by referring to the fact that the candidates there, who
were included in the group of 20% excess candidates, were
directed to be appointed. Once the petitioners rely on such
decision, it amounts to an acceptance that they form part of
such group of 20% excess candidates. It is then not open to
them to contend that the appointees are inferior to them in
merit. There is, thus, a fundamental fallacy qua placing reliance
on such decision.
22. Mr. Pandian is also right that the cited decision is factually
distinguishable and does not advance the cause of the
petitioners. First, appointments were not made despite large
number of vacancies remaining unfilled without any cogent
reason for which the Court while allowing the appeal directed
appointments to be given to the appellants. The present case
1-WP-7830-2017 & Connected
is clearly distinct in the sense that none of the petitioners can
lay claim to whatever vacancies remain, as noticed above.
Secondly, it was considered by the Court that in other zones
appointments had been made from the excess 20% candidates
which is not the case here. Thirdly, the Court noticed that
simultaneously three processes were in progress which was
reflective of the concerned railway's need to fill up the vacant
posts. It was held that rights of candidates like the appellants
who had appeared in the selection pursuant to the notification
of 2010 could not be taken away by the selection processes
started much later, and that they cannot be made to suffer for
the delays on the part of the concerned railway. Again, the facts
here are completely different. A single process of recruitment
has been the subject matter of scrutiny and multiple processes
were not on simultaneously. Fourthly and finally, the Court
brushed aside the argument that the appellants had secured
less than the cut-off marks prescribed in the subsequent
selection processes by observing that the respondents were
comparing apples with oranges. Unfortunately for the
petitioners, there is no scope for us to hold apples have been
compared with oranges. For the reasons as above, we regret
being unable to persuade ourselves to grant relief of
appointment based on the decision in Dinesh Kumar Kashyap
(supra).
23. Having considered all the rival contentions raised at the
Bar, we wish to dwell on one other relevant aspect. The
petitioners have in unison complained that the selection
process was not conducted in accordance with the circulars
1-WP-7830-2017 & Connected
issued by the Railway Board. In other words, the process is
illegal. There could be some truth in such a complaint. If we
were to hold that the complaint of the petitioners is well-
founded, the consequence thereof would be to declare the
selection process illegal with direction for fresh selection.
However, such declaration/direction can never be made without
the appointees being on record. The decision of the Supreme
Court in Ranjan Kumar vs. State of Bihar2 stares at our face.
The petitioners without arraying the beneficiaries of the so-
called illegal selection process, i.e., the several thousand
appointees, urge that relief of appointment should be directed
notwithstanding their contention of the process suffering from
illegality. No one can claim the benefit of an act/action/process
which, according to his own case, is illegal. Article 14
guarantees equality before law, but not securing illegal
benefits. We find that the challenge in these writ petitions
should also be spurned, being hit by the doctrine of approbation
and reprobation.
24. Before parting, we wish to place on record our sympathies
for the petitioners. They have been engaged in this legal battle
expecting public employment for far too long. Such expectation
arose because of the peculiar procedure adopted by the Central
Railway in publishing panel after panel with names and roll
numbers of the successful candidates. Since the recruitment
cell of every zonal railway is entrusted with the task of
recruitment, more professionalism and a greater degree of
transparency in such task is the need of the hour. If indeed the
2 (2014) 16 SCC 187
1-WP-7830-2017 & Connected
merit list and wait-list were published prior to document
verification, much of the anxiety and agony of aspirants like the
petitioners may not have arisen. We hope and trust that in
future, while conducting recruitment processes, the Central
Railway would conduct the selection process with more
professionalism and greater transparency, and strictly abide by
the terms of the circulars issued by the Railway Board that bind
it.
25. In the final analysis, we hold that the writ petitions are
devoid of merits for the foregoing reasons and are, accordingly,
liable to fail. The judgment and order of the Tribunal under
challenge is upheld and the writ petitions are dismissed. No
costs.
26. In view of the above order, all pending applications stand
disposed of.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
PRAVIN
DASHARATH
PANDIT
Digitally signed by
PRAVIN DASHARATH
PANDIT
Date: 2022.02.26
18:12:25 +0530
