Manish Kumar vs The Chairman, Railway Board & Ors.
2013 Latest Caselaw 5047 Del

      $~8
      * IN THE HIGH COURT OF DELHI AT NEW DELHI

           +      W.P.(C) 7268/2012 & CM No.18727/2012

           %                        Date of decision: 1st November, 2013

      SH. MANISH KUMAR                               ..... Petitioner
                    Through :             Mr. Ayusha Kumar, Adv.

                           versus

      THE CHAIRMAN, RAILWAY BOARD
      AND ORS                          ..... Respondents
                    Through : Mr. R.V. Sinha and
                              Mr. R.N. Singh, Advs.
      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MS. JUSTICE DEEPA SHARMA

GITA MITTAL, J. (Oral)

1. The petitioner in the instant case assails the denial of the respondents to undergo the physical efficiency test consequent upon his successfully undertaking the written examination for the post of Sub- Inspector in the Railway Protection Force pursuant to the advertisement issued in the employment notice No.2/2011 in the year 2012. The respondents had invited applications from eligible candidates for filling up the posts of Sub Inspector in the pay band of Rs.9300-34800/- + Grade Pay Rs.4200/- in the Railway Protection Force (RPF) including the Railway Protection Special Force (RPSF). The petitioner had applied for the said post as Schedule Caste candidate.

2. For the purpose of the present consideration, the material terms to which our attention has been drawn by Mr. Ayusha Kumar, learned

WP(C) No.7268/2012 page 1 of 9 counsel for the petitioner, deserves to be extracted from the advertisement and reads as follows:-

"5. METHOD OF RECRUITMENT:

Recruitment will be made based on the performance of the eligible applicants in a Written Examination, Physical Efficiency Test, Physical Measurement, Viva-Voce Test, Bonus Marks, if any, obtained and Documents Verification. Written Exams will be held first and only those who obtain the prescribed minimum marks will be called for Physical Efficiency Test & physical measurement.

      A.     WRITTEN EXAMINATION:

      (a)    xxx                    xxx                    xxx

      (b)     Candidates must bring the Call Letter at the time of

written test. Call letter will be sent by post. No one will be allowed to appear in the written examination without a call letter.

      (c)    xxx                    xxx                    xxx

      (d)    The call letter will contain the date, place, venue

and time of the examination and other instructions, if any on this subject.

             xxx                    xxx                    xxx

      B.     PHYSICAL EFFICIENCY TEST (PET) AND
             PHYSICAL MEASUREMENT:

      a)     Only those applicants who qualify in the Written

Examination shall be called for PET and Physical Measurement. The manner in which the candidates are to be called and the number of candidates to be called for PET and Physical Measurement will be decided in such a way that candidates, to be extent of three times the

WP(C) No.7268/2012 page 2 of 9 number of notified vacancies in each category, are selected purely on the basis of merit to appear for viva- voce and documents vertification.

       b)     xxx                     xxx                    xxx

       c)     xxx                     xxx                    xxx

       d)     PET will be held at a specified place and on a

specified date and the applicants will be informed of the same in advance.

       e)     xxx                     xxx                    xxx

       f)     The call letter for PET will give further
       instructions, if any, on this subject."

                           (Emphasis supplied)

3. A reading of the above would show that the scheme of the selection process envisaged a written examination first and only such candidates who qualified in the written examination were required to be called for the PET as well as physical measurement. The advertisement clearly notifies that the number of candidates to be called would be decided by the respondents. The respondents had also not crystallized the place and date of the PET and, as extracted above, the respondents had undertaken that the candidates will be informed of the same in advance.

The scheme of the selection process thus envisaged issuance of an individual call letter for the PET and the service of the individual call letter on the candidate.

4. It is an admitted position before us that the written examination was conducted on the 12th of August, 2011. The petitioner was declared

WP(C) No.7268/2012 page 3 of 9 successful in this test. Here we reach the point of diversion in the respective contentions. The petitioner has submitted that he did not receive the call letter for the PET. As the petitioner did not receive any communication from the respondents informing the place and date of the PET, he approached the Office of Chief Security Commissioner of the Zonal Recruitment Committee, North Central Railway at Allahabad on the 4th of November, 2012 where he was informed by the office that he was required to approach the Zonal Recruitment Committee at Lucknow. He therefore, proceeded to Lucknow for this purpose.

5. To support the fact that the petitioner physically visited Allahabad and Lucknow on the above dates, the petitioner has placed on record a copy of the railway tickets relating to his journey to Allahabad on the 4th of November, 2012 and return from Lucknow on 6th of November, 2012. Also on record is the receipt dated 6th November, 2012 of the hotel where the petitioner claims that he stayed at Lucknow on the 5th of November, 2012.

6. It is also the case of the petitioner before us that he had made a representation dated 5th November, 2012 to the Chairman of the Zonal Recruitment Committee, Chief Security Commissioner of the North Central Railway at Lucknow. This was additionally sent by speed post from Lucknow itself. A copy of the representation has also been placed on record along with the writ petition.

We have taken on record during the course of hearing the copy of the postal receipt by which this representation was sent to the said office at Lucknow on the 5th of November, 2012.

7. As a matter of abundant caution, the petitioner sent a similar representation also to the Chairman of the Zonal Recruitment

WP(C) No.7268/2012 page 4 of 9 Committee, Chief Security Commissioner, Allahabad as well as the Director General of the Railway Protection Force, New Delhi.

8. On return, the petitioner appears to have sent a letter dated 8th November, 2012 to the Director General of the Railway Protection Force at New Delhi which is supported by the speed post receipt which is on record.

9. The aforesaid representations support the contention of the petitioner that he learnt from the recruitment office that his physical efficiency test had been scheduled on 31st of October, 2012. The petitioner has therefore, brought to the notice of all the concerned authorities the fact that he had not received call letter and was tendering his candidature for undergoing the physical efficiency test.

10. It is an admitted position that no heed was paid to the petitioner's representation, both personal as well as written, no response was sent to the petitioner's representation. In the counter affidavit filed on record, the respondents have gone to the extent of disputing the petitioner's visit or even the receipt of the representation. However, the petitioner is supported in this submission not only by the railway reservation of his journey and hotel receipt but also by the legal presumption which attaches to dispatch of communication which is properly addressed and sent under registered post. Such presumption would attach to the communications sent by the petitioner by virtue of the presumption of service to be drawn in respect of such communication sent to the respondents under the General Clause as well as Evidence Act.

11. Be that as it may, the conduct of the petitioner manifests his vigilance and the grave urgency with which he has acted in the matter. Shortly after sending the representation, the petitioner has also filed the

WP(C) No.7268/2012 page 5 of 9 present writ petition on the 20th of November, 2012 before this court pointing out the forgoing facts and seeking a direction to the respondents to allow the petitioner to sit/appear in the next physical efficiency test (PET) and the measurement test on his having successfully cleared the written test in the SC category for appointment to the post of Sub- Inspector in the Railway Protection Force pursuant to the Employment Notice No.02/2011.

12. This writ petition was listed before the Court on the 22nd of November, 2012 when notice was issued and the court also passed an order that any appointment made to the post of Sub-Inspector in the Railway Protection Force would be subject to final decision in the writ petition with respect to one post of Sub-Inspector in the reserve (SC) category.

13. The stand taken by the respondents in the counter affidavit and by Mr. R.V. Sinha, learned counsel appearing for the respondents in court today is to the effect that the call letter to the petitioner for the PET was sent by ordinary post in October, 2012 along with the other call letters against serial no.33296. It is also submitted that the call letter was sent in a self-addressed envelope bearing postal stamp of Rs.5/- which had been submitted by the petitioner. It is further submitted by the respondents that so far as persons/candidates who did not receive call letter are concerned, the respondents had notified in newspapers published in the English and Vernacular languages between the 19th October, 2012 to 23rd October 2012 which clearly informed the candidates of the manner in which candidates were required to proceed if the call letter was not received. Copies of the cuttings of some of the newspapers in this regard have been placed before us.

WP(C) No.7268/2012 page 6 of 9

14. A material assertion in the counter affidavit is the respondents' contention that the petitioner did not appear personally before the Chairman PET at Lucknow to place his grievance on and before 11th November, 2012 i.e., before the last date of PET at Lucknow. Implicit in this pleading is that the petitioner's grievance would have been met by the respondents, had he done so.

15. The perusal of the public notices placed before us also clearly show that the respondents have anticipated the fact that call letters which have been sent by ordinary post, may not reach the candidates who were supposed to receive them. The same may be on account of postal delays or any other reason. The respondents have stated therein that in such eventuality, call letters could be obtained from the website of Railways between 23rd October 2012 to 29th October, 2012. The public notice also suggest that such call letters would be valid only after certification by the authorized officer at the venue of the PET. It is apparent from the above that such call letters had to be downloaded up to 29th October, 2012 and were not available to the candidates thereafter. Additionally, there to nothing on our record before us that the call letter relating to the petitioner was actually available on the website and could have been downloaded.

16. Be that as it may, even after the same had been uploaded and escaped the notice of the petitioner, there is an extremely important fact in the present case which entitles the petitioner to the relief which he had sought herein.

17. We are satisfied that the petitioner actually undertook the journey to Allahabad and Lucknow and that he made the representations on the 8th of November, 2012 to the respondents. The petitioner had not only

WP(C) No.7268/2012 page 7 of 9 physically approached the concerned authorities on the 5th of November, 2012 but had also additionally submitted representation to them.

18. Given the stand of the respondents that the petitioner should have approached the respondents before the 11th of November, 2012 and the fact that the PET was actually still going on then, as well as the requirement in the public notice issued by the respondents to the effect that the candidates were required to approach the authorized office at the venue of the PET for certification of any call letter downloaded from the website, there remains no justification at all for the respondents for not permitting the petitioner an opportunity to undertake the PET and the physical measurement test which was still going on the relevant dates.

19. No heed has been paid even by the Director General of the respondents who was approached by the petitioner by way of the representation made on 8th November, 2012, even though the Physical Efficiency Test and physical measurement test were still underway on that date.

20. In the circumstances we have noted above, no delay or negligence at all is attributable to the petitioner. In fact, the respondents ought to have permitted the petitioner an opportunity to undergo the physical efficiency test and the physical measurement test as per the scheme of the selection process.

21. No delay is attributable to the petitioner in approaching this court as well. This court has also passed an interim order protecting the rights of the petitioner.

22. The respondents have not pointed out any other reason or circumstance which would prohibit the appointment of the petitioner.

WP(C) No.7268/2012 page 8 of 9

23. In view of the above, it is directed that the respondents shall conduct the physical efficiency test and the physical measurement test of the petitioner towards the selection process in terms of the employment notice No.2/2011 for the post of Sub-Inspector within a period of 10 weeks from today. The respondents shall inform the petitioner as well as learned counsel representing him in the present writ petition of the place, date and time of the PET and physical measurement by registered acknowledgment due post. In case the petitioner successfully clears the physical efficiency test and physical measurement test, the respondents shall proceed in the matter for appointment of the petitioner for the post for which he has undergone the selection process.

This writ petition is allowed in the above terms. CM No.18727/2012 In view of the order recorded in the writ petition, this application does not survive for adjudication and is disposed of as such.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE NOVEMBER 01, 2013/mk

WP(C) No.7268/2012 page 9 of 9