Union Of India & Anr. vs Anurag Pandey
2016 Latest Caselaw 2729 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+               WRIT PTITION(CIVIL) NO. 775/2014
                                           Date of decision: 7th April, 2016
        UNION OF INDIA & ANR.                             ..... Petitioners
                          Through Mr. Kumar Rajesh Singh, Advocate.

                          versus

        ANURAG PANDEY                          ..... Respondent

Through Mr. Suman Kumar Divakar & Mr. Shiv Kumar Tripathi, Advocates.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE NAJMI WAZIRI

SANJIV KHANNA, J. (ORAL):

The Union of India (General Manager (Personnel), North Frontier

Railway) by this writ petition assails order dated 9 th October, 2013 passed

by the Principal Bench, Central Administrative Tribunal, New Delhi

(Tribunal, for short) in OA No. 2176/2016 and MA No. 1919/2013. The

impugned order allows the said OA and directs that the respondent herein

should be given an alternative post in terms of circular dated 26th October,

1999 within a period of two months from the date a copy of the order is

received.

2. We would begin by noticing that the Tribunal had earlier by order

dated 3rd June, 2010 allowed OA No. 2176/2006, inter alia, holding that

the Union of India could not have relied upon subsequent circular dated 4 th

September, 2001 withdrawing the earlier circular dated 26th October, 1999,

for the new circular cannot be applied retrospectively. The Union of India

thereupon had filed W.P. (C) No. 7884/2010, which was allowed by order

dated 7th May, 2013 observing that policy decisions in the form of circulars

could be changed and if a claim is made with respect to previous policy,

the same has to be decided upon consideration as to whether a vested right

had accrued pertaining to selection and appointment and whether a select

panel was drawn. Thus, the policy, that upon a person found to be

medically unfit for a post to which he had applied and was selected, he

would be given alternate employment commensurate with the medical

category in which he was placed, would be enforced and relied upon if the

policy was applicable when the Select List was prepared. However, if the

policy had been withdrawn prior to the date when the Select List was

prepared, the Court held that prima facie the person concerned could not

lay any claim to the benefit under the previous policy.

3. In order to appreciate the controversy, the facts in brief may be

noted. Pursuant to the employment notice No. 2/1999 published on 13th

November, 1999, the respondent had applied for appointment to the post of

Apprentice Diesel Assistant Driver. The last date for submission of

applications was 31st December, 1999. The mode of selection was written

examination, speed test/practical test, interview, etc, as per Railway

Board's guidelines. Appointment was subject to the candidate being found

medically fit in the appropriate medical classification.

4. The respondent, along with the other applicants had participated in

the written examination held on 21st January, 2001. The respondent

qualified, having cleared the competitive written examination. He

participated in the phychological test and his personal creditinals/papers

were verified along with other short listed candidates between 25th June,

2001 to 29th June, 2001. On the basis of the marks in the written

examination, phychological test and verification of records, a Select List

was published on 10th August, 2001. The petitioner did not file this list

before the Tribunal and with the writ petition. The select list has been filed

today in the Court. It was issued by the Railway Recruitment Board,

Gauhati and forwarded to the Chief Personnel Officer, North Frontier

Railway, Malegaon. It refers to recruitment for the post of Apprentice

Diesel Assistant Drivers vide category No. 7, Employment Notice No.

2/1999. The first paragraph of the said select list reads as under:-

" Sub: Recrutiment for the post of Appr. Diesel Assistant Driver against Category No. 07 of Employment Notice No. 2/99.

Ref: Your Indent No.E/227/216/RRB/2 (Rectt.) Pt III dt. 28.9.99 and 3.11.99

The written examination of above categories was held on 21.1.2001 and psychological test and verification of records was done from 25.6.2001 to 29.6.2001. On the basis of above test following candidates have been provisionally selected and are being recommended for appointment against above mentioned post. The empanelment of one candidate has been withheld due to

mismatch in signature. The case has been referred to handwriting expert for his opinion. In case his name is cleared, a supplementary list will be sent. Accordingly the merit position of this category may be treated as provisional.

              CAT No. 07 Appr. Diesel Assistant Driver      E/NOTICE
              NO. 2/99

              NO. OF POSTS 105 (UR=47, SC=13, ST=17, OBC=18,
              ESM=10)

              NO. EMPANELLED78                (UR=57,   SC=5,    ST=6,
              OBC=10)"

The respondent was at serial No. 22 in the order of merit, in the list

of 47 unreserved category selected candidates. The last two paragraphs of

the said letter/select list read as under:-

" Necessary re-verification of certificates/testimonials of education, academic/technical qualification, date of birth, caste certificate etc. may please be done at your end before appointment. Verification of their character and antecedents may also be done at your end, as required.

The original application forms along with copies of testimonials submitted by the successful candidates are being sent herewith for further necessary action and record."

5. A reading of the said letter indicates that the Select List was

prepared by the Railway Recruitment Board, Gauhati after the selection

process had been completed. It was sent to the Chief Personnel Officer,

North Frontier Railway, Malegaon for necessary action and steps.

6. Upon selection vide Select List dated 10th August, 2001, the

respondent was issued letter dated 10th October, 2001, which stipulated that

the formal appointment letter for Trainee Diesel Assistant Driver would be

issued after being found fit in the medical examination. On 18 th

November, 2001, the respondent appeared before the Medical Officer and

was declared medically unfit for appointment to the post of Trainee Diesel

Assistant Driver on the ground of colour blindness.

7. The respondent thereafter made repeated representations relying

upon policy decision dated 26th October, 1999 issued pursuant to the

Railway Board's letter No. 99/E/(RRS)25/1/RBE No. RRCB No. 09/99

dated 20th August, 1999. The policy decision mandates and authorises

General Managers to consider requests from candidates empanelled by the

Railway Recruitment Selection Board, who fail in the prescribed medical

examination. These candidates were to be offered appointment to alternate

technical post, subject to satisfaction of conditions. The policy decision

dated 26th October, 1999 mentions that the Board had reviewed the earlier

policy keeping in view the high cost of recruitment and the need to adopt a

uniform policy for candidates of all categories for recruitment. General

Managers were given the authority to consider request from candidates

empanelled by Railway Recruitment Board, who fail to meet the prescribed

medical standard. While giving alternate employment, fulfilment of

prescribed medical standards for the said post, educational requirements

and other eligibility criteria in the alternate category were to be considered.

8. It is apparent that if case of the respondent was considered under the

policy decision dated 26th July, 1999, he was entitled to on his request to be

considered for alternative employment. The respondent by the letter dated

31st July, 2002 was informed about his selection by the Railway

Recruitment Board for the post of Apprentice Diesel Assistant Driver and

that he should contact DRM (Personnel), Alipur Dwar Junction for further

information regarding alternate employment. Thereupon, by letter dated

20th February, 2003, the respondent was asked to attend the office of DRM

(Personnel), Alipur Dwar Junction for assessment of fitness for alternate

employment. The respondent was again medically examined and his

fitness was categorised as B-2 category. By letter dated 4th March, 2003,

the Divisional Railway Manager (Personnel), Alipur Dwar Junction had

asked for re-medical examination of five candidates, including the

respondent. This re-medical examination was undertaken, but alternate

employment letter was never issued. The respondent wrote a number of

letters, and in the absence of any response, he felt compelled to file the OA

in question before the Tribunal.

9. The petitioners submit that the respondent cannot be given alternate

employment as the earlier policy/circular dated 26th October, 1999 stands

withdrawn by the circular/policy decision dated 4th September, 2001. It

records that a large number of candidates selected as Assistant Drivers and

Assistant Station Masters were found to be medically unfit after

empanelment. Sometimes candidates had appeared for selection in these

categories even when they were aware that they did not meet the prescribed

medical standards required for the job. Perhaps such candidates would

appear to take advantage/benefit of the policy dated 26 th October, 1999 and

secure alternative employment. Consequently, this had led to pending and

long unfilled vacancies in these important critical safety category posts.

The said circular records that the posts of the Assistant Drivers and

Assistant Station Masters were not being filled up. This was undesirable

from the safety point of view. In consultation with the Railway

Recruitment Central Board, it has been decided that in future for the

categories of Assistant Driver and Assistant Station Masters, the candidates

would be asked to enclose medical certificates as per the prescribed

proforma from an eye specialist when they apply. Therefore, candidates

who conform to the notified standard of vision, need apply. For the sake of

convenience, we would like to reproduce paragraphs 2 to 5 of the new

circular/policy, which read as under:-

"2. The issue has been considered in the light of the above situation in RRCB meeting and it has been decided that for the categories of Assistant Drivers and ASMs. The candidates may be asked to enclose a medical certificate from an eye specialist regarding vision in a prescribed Performa when they apply for these posts. Only those candidates who conform to notified standards of vision need apply.

3. It has also been decided that at the time of certificate verification, the selected candidates may be sent to nearest candidates may be sent to nearest (sic) Railway Hospital for a vision test. Those who fail in the vision test need not be empanelled.

4. Candidates selected for the category of Assistant Driver/ASM/Motorman will also not be eligible for any alternative appointment if they fail in the final medical examination conducted by the Railway before appointment for any reason.

5. The fact that candidates who fail in the medical examination for these category will not be eligible for any alternative appointment on the Railways should be mentioned clearly in the employment notice so as to discourage those candidates who do not fulfil the medical requirement, from applying."

A reading of the said circular/policy unmistakenly reflects that the

circular was intended to operate and apply to fresh employment

notifications and was not to apply retrospectively. Paragraph 2 quoted

above states that in cases of fresh employment, the candidates applying

must enclose relevant medical certificates. Paragraph 3 stipulates that at

the time of certificate verification itself, the selected candidates would be

sent to the nearest Railway hospital for vision test and those who fail the

vision test, need not be empanelled. In the present case the Select

List/letter was issued by the Railway Recruitment Board on 10th August,

2001. The letter/Select List clearly records that the candidates, who had

appeared and were empanelled had already undergone the psychological

test and verification of records. The said exercise was carried out during

the period 25th June, 2001 to 29th June, 2001. The Select List was

circulated post the said exercise, on 10th August, 2001.

10. In other words, the process of selection verification of records, etc.

was undertaken and completed on or before 10th August, 2001, i.e., before

the circular/policy decision dated 4th September, 2001 was circulated. This

policy decision would not apply retrospectively to the Select List published

earlier on 10th August, 2001. A reading of the circular/policy dated 4th

September, 2001 itself indicates that it was to apply to cases where

character certification had not been completed. It also prescribes a new

and different procedure, which was to apply in future, post the said

policy/circular dated 4th September, 2001.

11. The learned counsel for the petitioners has filed before us a chart

prepared by Divisional Manager (Personnel), Alipur Dwar Junction in

October, 2005. As per the said chart, the respondent, Anurag Pandey was

to be offered an alternate post as Safaiwala in the mechanical department.

From this chart/letter it is apparent that the petitioners themselves had

understood and accepted that the circular/policy decision dated 4 th

September, 2001 was not applicable to the Select List published on 10th

August, 2001. Counsel for the respondent has submitted that at least four

candidates identically situated and mentioned in the Select List were

granted alternate employment. The learned counsel for the petitioners

submits that he has no instructions to contradict the said assertion.

12. Be that as it may, in view of the aforesaid findings, we do not find

any merit in the present writ petition and the same is dismissed. If the

petitioners have not complied with the order and directions of the Tribunal,

they will do so within one month from the date a copy of this order is

communicated to them. There will be no order as to costs.

(SANJIV KHANNA) JUDGE

(NAJMI WAZIRI) JUDGE APRIL 07, 2016 VKR