Shri Babu Lal vs Union Of India And Another
2001 Latest Caselaw 1370 Del

ORDER

Khan, J.

1. Petitioner was a candidate for the post of Supdt. Garde-II in the selection conducted some time in 1996. he along with 10 other candidates allegedly qualified a written and viva-voce test, but when it came to appointing him, respondents are said to have cancelled the selection and ordered fresh selection.

2.Petitioner challenged this OA No.84/97 amongst other on the ground that the selection made could not be cancelled without the approval of General Manager in terms of para 215(c) of IREM. Respondents, on the other hand, maintained that the selection was cancelled by Divisional Railway Manager vide para 218 of IREM and the case was referred to headquarters office for post facto approval of General Manager but original file No.111-P/Confdl/6/96 containing the selection proceedings was lost in transit. To ascertain the correct position, General Manager was asked to file an affidavit which he did on 27.1.98. Tribunal thereupon the view that cancellation of June 1996 selection had not taken place as it was required to be approved by the General Manager which was not done. It accordingly held that 1996 selection valid and directed respondents to make appointments in accordance with it by order dated 27.1.1998.

3. Respondents thereafter filed MA 1332/98 under Rule 24 of CAT (Procedure Rules)1987 and sought modification of this order on the plea that it was incapable of implementation in the absence of relevant selection file which was reported lost in transit and for which major penalty actin was ordered against the concerned official one Ashwani Kumar.

4. Tribunal, on consideration of peculiar circumstances, and on noticing that there was no way to retrieve the file and to implement the first Tribunal direction allowed this MA treating it as a review petition by order dated 15.12.98 permitting respondents to hold a denovo selection holding as under :-

"Under these circumstances, the only appropriate course left open to us is to direct the applicants (in MA) to hold selection denovo covering the entire gamut. It is felt that such re-examination may cause hardship to those candidates who had obtained higher marks honestly but the present situation cannot be salvaged since there is no other better alternative."

5. Petitioner has challenged this in the present writ petition on the ground that Tribunal could not have over-turned its first order on an application under Rule 24 and that too by treating it as a review application. Reliance in this regard is placed on several Supreme Court judgments - Vaman Dattatry Godagkar Vs. Director General of Posts, Bombay 1998 (1) SLJ SC 34. R.K. Sabharwal Vs. State of Punjab , Union of India Vs. Virpal Singh Chauhan JT 1995 (7) SC 231, Ajit Singh Vs. State of Punjab .

6. Respondents have opposed this petition, both on merits and on the strength of the subsequent developments. It is pointed out that pursuant to Tribunal permission to hold a fresh selection, they had completed the selection process in which petitioner was also invited to participate but he failed. Consequently, appointments were made to the available posts rendering the matter infructuous. It is also submitted that application (C.M.6640/99) made for impleadment by some candidates of 1996 selection was also motivated as none of them had challenged the cancellation of the selection and some had also participated in fresh selection.

7. All that falls for consideration is whether Tribunal could have modified its first order dated 27.1.1998 by the subsequent order dated 15.12.1998 in an application made under Rule 24 of CAT (Procedure Rules).

8. Rule 24 provides thus:-

"The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice."

9. This rule undoubtedly empowers Tribunal to pass necessary orders amongst other things to secure the ends of justice. While exercising this power, Tribunal could suitably modify its original order and even alter it in the given circumstances and in the face of ground realities. But what had complicated the position in the present case is that it had treated respondent's application under Rule 24 as review application to set aside its first order dated 21.1.1998 and had passed a fresh order directing respondents to conduct a fresh selection. It could not have done so in exercise of a review power whereby it could only correct an apparent error or suitably modify or clarify the order without substituting the original order.Petitioner's contention to that extent is correct and is supported by established legal position.

11. But what required to be seen was whether treating of respondents' application under Rule 24 as Review application by Tribunal should be allowed to invalidate its second order dated 14.12.1998 because of limited and narrow scope of review jurisdiction and ignoring the peculiar facts and circumstances of the case. To do so, in our view, would amount of putting premium on technicalities and shutting eyes to stark realities. It is a matter of record that respondents' application was under Rule 24 and that they had invoked jurisdiction of Tribunal under this Rule only which admittedly vested power in Tribunal to pass necessary orders to secure ends of justice which could cover new order dated 14.12.98 also. There was no constraint or limitation on Tribunal to del with its basic order while exercising power under this Rule. It could as well drastically alter its original order in the face of new situation and to secure ends of justice. Therefore, it was not respondents' fault if Tribunal by advertence or ignorance treated their applications as review application. Nor could they be denied relief because of this which was otherwise liable to be granted to them by Tribunal in exercise of power under Rule 24. It is not a case of lack of jurisdiction by Tribunal which could render its second order a nullity. The labels do not matter so long as impugned order was found to be just and appropriate in the circumstances.

12. Coming to brass tacks, it pales into insignificance whether respondents had rightly cancelled 1996 selection through DRM which was in the process of being approved by the General Manager or whether such cancellation was invalid for want of approval by General Manager. Even assuming that this selection was wrongly cancelled, there was still no way to give its benefit to a selected candidate like petitioner because of admitted loss/disappearance of official record. It was in this scenario that Tribunal had explored various options to break the impasse which is reflected in its second order dated 15.12.1998 noting thus:-

"Applicants have contended that they are highly handicapped in respect of implementing our aforesaid orders since the original selection proceedings containing the details of the candidates who had qualified in the written test etc. have bene lost in transit. Actual marks obtained by 33 candidates who were called to appear in viva-voce test are not available. Answer sheets of the candidates are also not available to determine the marks secured by the candidates in the written examination. Even the marks obtained by the said candidates in viva voce test are not available. The only item available with the applicants is the notice issued for holding viva voca test of the candidates who secured qualifying marks in the written examination."

13. Given regard to the fact that there was no way to implement 1996 selection recommendations, Tribunal had rightly chosen the best way out of directing respondents to hold a fresh selection in which all eligible candidates including petitioner had the right to participate. It is petitioner's own fault that he had failed to avail of the chance. Therefore, considering that respondents, acting upon Tribunal direction in its second order, had conducted a fresh selection which had resulted in filling up of the posts, it is too late in the day for the petitioner to seek sustenance from the first original selection.

14. We accordingly affirm the second Tribunal order though on a different reasoning to dismiss this petition. Petitioner shall, however, be at liberty to participate in any fresh ensuing selection for the post of Supdt. Grade-II in relaxation of age bar, if any, or any other impediment involved.