Union Of India And Others vs Apurba Lal Biswas
2021 Latest Caselaw 1692 Cal

                 IN THE HIGH COURT AT CALCUTTA
                           (Appellate Side)
                CONSTITUTIONAL WRIT JURISDICTION


                                              WP.CT 81 of 2019


                                              Reserved on: 24/02/2021

                                              Pronounced on: 05/03/2021




Union of India and Others
                                                         ........Petitioners

                                 Through:-
                                 M/s. Jayanta Banerjee and
                                 Avinash Kankani, Advocates
                                                         ...for the petitioners
                                                           present in Court
                                   -Vs-
Apurba Lal Biswas
                                                         ........Respondent

                                 Through:-
                                 Mr. Pratik Dhar, Senior Advocate with
                                 M/s Ujjal Ray, Ashok Chakraborty and
                                 Arpa Chakraborty, Advocates

                                                         ...for the respondent
                                                          present in Court


Coram:         THE HON'BLE JUSTICE RAJESH BINDAL
                THE HON'BLE JUSTICE ANIRUDDHA ROY


                                   ORDER

Rajesh Bindal, J.

1. This order will dispose of a bunch of petitions bearing

Nos. WP.CT Nos. 82 to 103 of 2019. Challenge in the writ petitions is to the

common order passed by the Central Administrative Tribunal, Kolkata Bench 2 WP.CT 81 of 2019

(for short, 'the Tribunal') whereby bunch of Original Applications were decided

by a common order dated March 08, 2018.

2. Learned counsel for the petitioners submitted that recruitment

process for 5,726 Group 'D' staff was initiated by the Railway Recruitment Cell,

Eastern Railway on September 25, 2006. Total of 13,83,004 applications were

received. The recruitment was to be carried out by holding a written

examination, which was to be followed by physical efficiency test. Written

examination was held from November 04, 2007 to January 06, 2008 whereas

physical efficiency test was held from May 31 to June 02, 2008. On February 06,

2009 a provisional panel of 5,300 candidates was prepared after their medical

examination. Various Original Applications were filed by number of applicants

challenging the action of the Railway Recruitment Cell whereby their

applications were rejected on account of certain minor discrepancies. The same

were allowed vide order dated August 20, 2009. The aforesaid order was

challenged by some of the candidates who were earlier shortlisted for

appointment by filing WP.CT 278 of 2009 titled as Rajat Baran Sinha & Ors. vs.

Union of India & Ors., which was allowed by this Court vide order dated

December 21, 2009. The petitioners before this Court were directed to be

impleaded as respondents in the proceedings before the Tribunal in different

Original Applications and the Tribunal was directed to hear the matters afresh.

3. The Original Applications were finally disposed of by the Tribunal

vide order dated April 09, 2010. The rejection of the applications of the

candidates was quashed and they were directed to be reconsidered. As there were

about 2.60 lakhs applications which were rejected, the respondents before the

Tribunal were given liberty to scrutinize their applications as well. Fresh list of

the candidates falling in the zone of consideration was to be prepared. After 3 WP.CT 81 of 2019

carrying out aforesaid exercise a panel of 5,512 candidates was notified on

January 22, 2012 and balance 214 was notified on August 11, 2012. Making it

total of 5,726, the number of posts advertised.

4. With the aforesaid factual aspect, the learned counsel for the

petitioners submitted that O.A. No.678 of 2012 (Sunil Kumar & Anr. vs. Union

of India & Ors.) was filed before the Tribunal before even the entire result of

selection was declared. The same was disposed of as infructuous vide order

dated January 14, 2013 noticing that the relief prayed for therein has been

granted, as during the pendency of the Original Application notification had been

issued for the remaining vacancies. It was specifically mentioned in the aforesaid

order that the Tribunal had been expressed any opinion on the merit of the claim

made by the parties.

5. Learned counsel for the petitioner further referred to the selection

procedure mentioned in the advertisement which was to start with a written

examination followed by physical efficiency test. Only the candidates securing

minimum pass marks in the written test were to be called for physical efficiency

test, which was qualifying in nature. No interview was to be held. A circular

dated July 18, 2005 issued by the Ministry of Railways (Railway Board)

providing for procedure of recruitment of Group 'D' staff was referred to. In

terms thereof, it was provided that candidates to the extent of 10 times the

number of vacancies in order of merit in the written test, were to be called for

physical examination test. Medical examination of the candidates who had

passed the written examination and physical examination test was to be

conducted before empanelment. Only the candidates having passed the medical

examination were to be included in the final merit list. The same had to be to the

extent of the number of vacancies. The currency of the panel was for a period of 4 WP.CT 81 of 2019

two years from the date of publication. Any vacancy remaining was to be

referred for recruitment in the next process. Total 7,703 candidates were called

for medical examination as against 5,726 vacancies as up to that stage in the

merit list all the vacancies were filled. No further candidates were called for

medical examination as the same would have been an exercise in futility. Three

Original Applications bearing O.A. Nos.1132 of 2012, and 695 and 724 of 2013

titled as Lal Bahadur Yadav vs. Union of India, Amar Nath Naskar & Ors. vs.

Union of India and Amaresh Kumar & Ors. Vs. Union of India respectively,

were filed before the Tribunal with the prayer for preparation of a waiting list

and to fill the unfilled vacancies. Wrongfully referring to the response in

pursuance of a RTI query, the Tribunal vide order dated November 17, 2015

directed the Railway administration to see that the applicants who had actually

passed the written examination and the physical efficiency test and coming into

the zone of consideration are empanelled. They should be subjected to medical

examination and subject to availability of vacancies should be offered

appointment. The aforesaid direction was on a wrong premise where Jamalpur

Workshop, in an answer to a RTI question had responded while stating that there

were 1,278 vacancies available as on June 01, 2013. In fact, in the recruitment

process in question, which was initiated in 2006 the Jamalpur Workshop had

only referred 165 vacancies for recruitment. There was no relevance of the

vacancies as existing on June 01, 2013 as much water had flown during the

interregnum.

6. The claim made by the Original Applicants was rejected by the

Railway Recruitment Cell vide order dated February 08, 2016 stating that they

were not within the zone of consideration. The same was impugned before the

Tribunal. The Tribunal vide impugned order dated March 08, 2018 accepted the 5 WP.CT 81 of 2019

bunch of Original Applications and directed the petitioners herein to empanel the

Original Applicants in view of earlier order passed by the Tribunal on November

17, 2015 depending upon the vacancies existing as on June 04, 2013 under

Employment Notice No.01/06.

7. While impugning the aforesaid order learned counsel for the

petitioners submitted that the primary reliance of the Tribunal was on its earlier

order dated January 14, 2013 vide which O.A. No. 678 of 2012 was dismissed as

infructuous. A passing reference made therein would not confer any right on the

Original Applicants therein once it was specifically said that the Tribunal had not

expressed any opinion on merits. Subsequent order dated November 17, 2015

was again for consideration of cases of petitioners for empanelment subject to

the condition that they fall within the zone of consideration. None of the

petitioners was above the last selected candidate in the category to which they

belonged. It is not the case of the Original Applicants that any candidate lower

in merit had been appointed. The RTI enquiry from Jamalpur Workshop will not

confer any right on the Original Applicants as the vacancies notified by this

workshop in the recruitment process for the year 2006 were merely 165. There

was no relevance of the number of vacancies available as on June 01, 2013. As

per the conditions laid down for the recruitment process the select list was valid

for two years. There was no provision for preparation of any waiting list in case

any vacancy remains unfilled on account of non-joining or there may be

availability of vacancy after a candidate joins and resigns from the post. The

same were to be notified in the next recruitment process. From 2006 onwards,

there had been five recruitment processes during the years 2010, 2012, 2013,

2018 and 2019. Hence, there is no question of offering appointment to the

Original Applicants at this stage. It was further argued that even selection does 6 WP.CT 81 of 2019

not confer any right of appointment. For the purpose reliance was placed on

judgment of Hon'ble the Supreme Court in Commissioner of Police and

Another Vs. Umesh Kumar reported at (2020) 10 SCC 448.

8. In response, learned counsel for the respondents submitted that all

the vacancies advertised in the year 2006 were not filled up. In case, a person

who is recommended for appointment does not join the vacancy is not to be

carried forward. The next candidate in the merit list has to be given a chance.

There were number of candidates who did not join, hence, the Original

Applicants who were there in the zone of consideration when the first merit list

was prepared, should have been considered for appointment. He further

submitted that there is a concept of conclusiveness. Once in the earlier round of

litigation, there was direction for consideration of the cases of the Original

Applicants, in the subsequent round of litigation the binding nature of direction

cannot be challenged. Earlier order passed by the Tribunal was not challenged by

the petitioners, whereby vide order dated January 14, 2013 the vacancies were

required to be filled up.

9. It was further argued that the candidates to the extent of ten times

the number of vacancies were to be called for physical examination test as per

the instructions relied upon by the petitioner. The needful was not done. As a

result of which the Original Applicants were deprived of consideration of their

cases for appointment. However, their right of appointment will arise only if they

are empanelled. Reference was made to the RTI enquiry as has been referred to

in the impugned order passed by the Tribunal whereby the number of vacancies

available even at Jamalpur Workshop was huge and there are only 23 applicants

who are waiting for appointment for the last more than a decade.

7 WP.CT 81 of 2019

10. Learned counsel for the respondents in WP.CT 92 of 2019 (Union

of India & Ors. vs. Susanta Mondal) submitted that the petitioner had themselves

violated the clause in the circular dated July 18, 2005. At least three times the

number of the candidates were to be called for medical examination whereas the

aforesaid requirement was not complied with. Even the figure of 7,703

candidates having been called for interview is totally wrong. If they had called

7,703 candidates, the Original Applicants would have been in the zone of

consideration. However, nothing was pointed out from the record to substantiate

the aforesaid plea.

11. It was further argued that the Original Applicants were there in the

zone of consideration when the first list was prepared. However, when the list

was revised their names were deleted. Further argument was raised that the

order passed by the Tribunal was challenged one year after passing thereof,

hence, the writ petition deserves to be dismissed on account of delay and latches.

Reference was made to Circular No. 73 of 2008 which called for preparation of a

waiting list as well but the same has been totally violated.

12. Heard learned Counsels for the parties and perused the paper book.

13. The issue which requires consideration by this Court falls within a

very narrow compass. The Tribunal had been repeatedly directing for

consideration of the cases of the Original Applicants for appointment in case

they fall within the zone of consideration.

14. Basic facts which are not in dispute are that on September 25, 2006

advertisement was issued by the Railway Recruitment Cell for filling up 5,726

Group 'D' posts. Total of 13,83,004 applications were received. As per the

procedure prescribed, the process of selection was to start with a written 8 WP.CT 81 of 2019

examination followed by physical efficiency test, which was qualifying in nature

and thereafter medical examination. Written examination was held from

November 04, 2007 to January 06, 2008. It was followed by a physical

efficiency test from May 31 to June 06, 2008. A provisional panel was notified

for 5,300 candidates after medical examination. Some of the candidates whose

applications were rejected on account of certain discrepancies approached the

Tribunal. The Tribunal vide order dated August 20, 2009 passed in O.A. Nos.

706 of 2009, Sudhangshu Sekhar Biswas & Ors. Vs. Union of India, accepted the

Original Applications. The impugned orders of rejection of the candidatures of

the Original Applicants therein were quashed and the matter was required to be

reconsidered by drawing a fresh merit list. Equal opportunity was to be afforded

to all similarly placed candidates even if they were not before the Tribunal.

Some of the candidates who were there in the select panel already notified, filed

writ petition before this Court. The same was subject matter of consideration in

Rajat Baran Sinha's case (supra), which was disposed of on December 21, 2009.

The writ petition was allowed and the petitioners therein were directed to be

impleaded as respondents in the Original Applications. The cases were remanded

back for fresh hearing. The Tribunal considered the matter afresh. Vide order

dated April 9, 2010, the Tribunal allowed the bunch of petitions quashing the

orders of rejection of candidature of number of candidates finding the reasons to

be not in accordance with law. Fresh list of candidates in the zone of

consideration was directed to be prepared. The time to comply with the order

was extended vide order dated November 11, 2011 passed by the Tribunal for a

period of six months as there were lakhs of applicants and the rejection of

candidature of more than two lakhs candidates was to be reconsidered.

9 WP.CT 81 of 2019

15. After complying with the order of the Tribunal a fresh select list of

5,512 candidates were notified on January 22, 2012. As there were still some

vacancies left, O.A. No. 678 of 2012 was filed before the Tribunal seeking a

direction that all the vacancies notified should be filled up. Prayer was made for

recommendation of the names of applicants therein. The same case was

disposed of on January 14, 2013 as infructuous. It was observed therein that in

case any selected candidate does not join and there are certain vacancies, it shall

be open to applicant to file fresh application, for which no opinion was expressed

on merit. Subsequent thereto, three Original Applications bearing Nos. 1132 of

2012 and 695 and 724 of 2013 were filed. The prayer made therein was that the

respondents be directed to prepare a waiting list to fill up the vacancies

remaining vacant on account of non-joining of certain selected candidates.

Further prayer was also to fill up the unfilled vacancies from the candidates who

were declared suitable in the written examination and physical examination test

and had also cleared the medical examination but did not come within the zone

of consideration. The aforesaid applications were disposed of vide order dated

November 17, 2015 with the observation that wherever any empanelled

candidate fails to join the post is required to be filled up from the waiting list.

While referring to answer to one RTI enquiry from Jamalpur Workshop,

direction was issued for consideration of the cases of the Original Applicants

who had passed the written examination and also physical examination test and

were within the zone of consideration, in view of the available vacancies. The

conditions imposed subsequently for empanelment were not to be adhered to.

The main premise for issuing such direction was the RTI enquiry whereby in

response to a request by one of the candidates, Jamalpur Workshop responded by

stating that after joining of Group 'D' candidates under Employment Notice No.

01/06 (the recruitment process in question) there were 1,278 vacancies as on 10 WP.CT 81 of 2019

June 1, 2013. The stand taken by the petitioner was that in the recruitment

process for the year 2006 Jamalpur Workshop had only notified 165 vacancies

for which the recommendations were made. There was no relevance of the

vacancies available as on June 01, 2013 for offering appointments with reference

to the advertisement issued way back in the year 2006. The Tribunal had gone

totally wrong in relying upon the aforesaid RTI enquiry.

16. In view of the direction issued in the aforesaid case the Railway

Recruitment Cell considered the claim of the Original Applicants. The same was

rejected vide order dated February 18, 2016 by clearly mentioning the marks

obtained by the Original Applicants and the last selected candidates in that

category. None of them was within the zone of consideration. Challenging the

aforesaid order dated February 18, 2016 fresh O.A.s were filed before the

Tribunal which were allowed vide impugned order dated March 08, 2018 passed

by the Tribunal and the direction was issued to empanel the Original Applicants

depending upon the vacancies existing at the relevant time i.e. on, June 04, 2013.

For issuing such direction again reference was made to the earlier order passed

by the Tribunal on November 17, 2015 in O.A. No. 1132 of 2012.

17. Strange to notice that the Tribunal had quoted the response to RTI

question wrongly in its order. The same reads as under:-

"There existed even on 04.06.2013 vacancies to the extent of 1278 under the Employment Notice No. 01-06."

Answer to the RTI query as referred to in the earlier order dated

November 17, 2015 passed by the Tribunal in O.A. No. 1132 of 2012 titled as

Lal Bahadur Yadav's (supra) case, reads as under:-

11 WP.CT 81 of 2019

"Vacant seat after joining of Group 'D' candidate under employment notice No. 01-06 in Jamalpur Workshop is 1278 as on 01.06.2013."

18. Further the stand taken by the petitioner was that Jamalpur

Workshop had only requested for recruitment of 165 candidates in Group 'D' in

the year 2006. Hence, there cannot arise a question of availability of 1278 posts

with reference to that recruitment process which could be filled up against the

recruitment in question. No appointments could be made more than the

advertised vacancies. There is no relevance of the vacancies as were available

more than six years after the recruitment process was initiated. The Tribunal had

gone wrong in directing appointment of the Original Applicants with reference to

the vacancies, which may be available more than six years after the recruitment

process in question was initiated. Further the Tribunal has failed to notice the

fact that during the interregnum there had been five different recruitment

processes undertaken by the Railway Recruitment Cell in the years 2010, 2012,

2013, 2018 & 2019.

19. Direction issued by the Tribunal for empanelment and appointment

of the Original Applicants de hors their merits vis-a-vis the candidates appointed

also calls for interference by this Court for the reason that the case set up by the

Original Applicants was not that any candidate lower in merit than them was

offered appointment. In fact, as per the information annexed with the order

passed by the Railway Recruitment Cell dated February 18, 2016 the marks

obtained by the Original Applicants in the written examination were far below

the last selected candidates in each category. Physical Examination Test was

merely qualifying.

12 WP.CT 81 of 2019

20. The argument that the number of candidates to be called for PET

should have been ten times the number of vacancies is merely to be noticed and

rejected for the reason that the recruitment process clearly provided that the

written examination is the main basis for recruitment. The merit position secured

by a candidate therein is the only relevant factor. Subsequent thereto, physical

examination test was to be conducted which was qualifying in nature. Thereafter,

the medical examination was to be conducted. The claim that ten times or three

times the number of vacancies should have been called for physical examination

test or medical examination is neither here nor there, once no marks as such were

earmarked for these two stages. As claimed by the petitioners, the candidates up

to merit position number 7,703 were called for filling up 5,726 vacancies. There

is nothing wrong in the procedure adopted as calling candidates to the extent ten

times or even three times the vacancies for physical examination test or the

medical, would not have changed their merit position.

21. Another contention raised by the respondents was that the waiting

list should have been prepared, also deserves to be rejected for the reason that

firstly the stand of the petitioners is that there were no Rules or instructions at the

relevant time for preparation of any waiting list. Further to claim at this stage,

after more than fourteen years of initiations of the recruitment process that

direction be issued for preparation of waiting list, will be totally unjust and

unfair as there had been five different recruitment processes during the

interregnum. The instructions clearly provided that the validity of the panel will

be two years and any vacancy left out was to be taken care of in the next

recruitment process.

22. Another argument on which lot of stress was laid by the counsel for

the respondents also deserves to be rejected, namely, the conclusiveness of the 13 WP.CT 81 of 2019

order passed by the Tribunal. It may be added that in the earlier rounds of

litigation, the Tribunal had merely directed for consideration of their cases in

case they fall within the zone of consideration. There was no positive direction

issued for their appointment. Definite case of the petitioners is that Original

Applicants were not falling within the zone of consideration. There was no

question of violation of the direction issued or non-compliance thereof.

23. For the reasons mentioned above, we find merit in the present writ

petitions and the same are, accordingly, accepted. The impugned order passed by

the Tribunal is set aside. The Original Applications filed by the respondents

before the Tribunal, are dismissed, with no order as to costs.

(RAJESH BINDAL) JUDGE

(ANIRUDDHA ROY) JUDGE

Kolkata 05 /03/2021

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PA