Judgment:
1. The grievance of the applicants, in short, in this application is that they have been successful in the written examination and psychological and interview test, held on 4.1.98 and from 5.3.98 to 7.3.98 and 9.3.98 to 11.3.98 respectively for appointment to the post of Tr. ASM of Eastern Railway vide Employment Notice No. 1/ 97 (Annexure 'A'), by the respondents cancelled the written examination and psychological and interview test vide notification published in the Employment News dated 10-16th October, 1998. Hence, they have come before this Tribunal challenging the validity of the notification dated 10-16th October, 1998(Annexure 'B') for holding fresh examination for the said posts of Trainee Assistant Station Master on the ground that the order of cancellation is illegal, arbitrary and violative of the principle of natural justice. The applicants also sought for direction upon the respondents to finalise the panel and give appointment on the basis of the written examination thereto and to fill up the posts in terms of the notification No. 1/97 in respect of Trainee Asstt. Station Master on the basis of the written examination and viva voce including psychological test held therefrom. The applicants have also prayed for a direction upon the respondents to dispose of the representation dated 17.10.98.
2. The case of the applicants, in short, is that in pursuance of the employment notification bearing No. RRB/CAL/EN-1/97 published by the Railway Recruitment Board, Calcutta in Employment News the applicants applied for category No. 23 viz., for the post of Trainee Assistant Station Master in short, Tr. ASM in the scale of Rs. 1200-2040/- (RP), (Annexure/ A). Thereafter the applicants were called for written selection test on 4.1.98 and they were duly selected for the said posts of Tr. ASM as per the result published in the Employment News marked Annexure/B. After being successful in the written test the applicants were asked to appear for the viva voce and psychological tests which were held and conducted by the authorities concerned from 5.3.1998 to 7.3.1998 and 9.3.1998 to 11.3.1998 and all the applicants came out successfully in the said tests which would be apparent from the letter marked Annexure 'C'. Thereafter the applicants were anxiously waiting for getting appointment and they were shocked and surprised to note from the Notification published in Employment News dated 10-16th October, 1998 by the Chairman, RRB, Calcutta that the written test and viva voce and psychological tests conducted by the authorities concerned in respect of Category No. 23 viz. Tr. ASM had been cancelled as desired by the Ministry of Railways, Railway Board, New Delhi and fresh written examination will be held in due course only for the candidates who had appeared in the earlier written examinations. It is contended by the applicants that the cancellation of the written examination is wholly bad in law and without jurisdiction since the said selection cannot be and could not be cancelled when everything is complete and the posts are lying vacant to be filled up and there was urgent need for the railways to fill up the same as would be evident from the Notification itself. So, the entire action of the respondents in this regard is wholly arbitrary, illegal and liable to be quashed.
3. The respondents filed written reply to the OA. In the written reply it is stated by the respondents that the application is not maintainable. It is admitted by the respondents that the RRB, Calcutta conducted a written examination on 4.1.98 for the post of Tr. ASM vide category No. 23 of Employment Notice No. RRB/Cal/EN-1/97. The written examination was followed by psychological test and interview from 5.3.98 to 11.3.98. The panel of finally selected candidates was, however, not issued by the then Chairman of RRB, Calcutta. Because of the allegation of widespread corruption in the conduct of the selection by different RRBs., the Railway Board had put on hold all recruitment works by all the RRB with effect from 25.3.1998 which was withdrawn with effect from 28.4.98 vide Board's letter No. 98/ E(RRB)/25/15 dated 28.4.1998, Annexure 'R1'. In order to make the recruitment procedure (i) fair and transparent and to instill confidence in the mind of candidates and their guardians a lot of systematic changes have been introduced by the Railway Board. For Example, now written examination is conducted on duplicate (1+1) carbonless paper, (ii) Immediately after the examination, the original copies of the answer sheets are sent to the evaluating agency for evaluation and the duplicate copies to the Railway Board for preservation and crosschecking, if necessary.
Copy of the Board's letter No. 98/E(RRB)/25/17 dated 28.4.98 and No.98/E(RRB)25/l 8 dated 28.4.98 are marked as Annexures 'R/2' and 'R/3'.
it is also stated by the respondents that after completion of the psychological test and interview on 11.3.98 the panel should have been published within maximum seven days which was not done in this case giving rise to suspicion about the fairness of the selection. However, in this case there have been lot of many other irregularities which conclusively proved that the examination was not conducted as per rule in a fair manner. A complaint was received from one Shri Debabrata Chakraborty bearing Roll No. 23708598 about this examination. At the time of scrutiny about the contents of this complaint it was observed that the evaluating agency had given the result of the written examination incomplete and faulty in many respects. For example, there were a number of cases where appeared candidates' marks were missing although the Roll Nos. were available in the result sheet. Contrarily, in a number of cases, marks have been reflected in the result sheets without corresponding Roll No. As a result the authority suggested cancellation of written examination and the Railway Board have finally approved the suggestion of the RRB and accordingly a notification was issued in the press cancelling the written examination. Besides, the fact stated above there was a devastating fire in M.M. Building, 16 Strand Road, Calcutta wherein the office of the RRB, Calcutta is located. The fire ultimately destroyed all the office records including the candidates' data and the defective marksheets of the earlier examination, furniture etc. lying in the office. But as the pre examination work like scrutiny of applications, preparation of master data giving candidates' name and address, roll nos. etc. was conducted through computer by an outside computer agency, these records i.e., the complete particulars of the candidates numbering more than sixty two thousands are available in the computer floppy and there will be no difficulty in calling for all the candidates again for the written examination. It is stated that a similar case bearing No. OA 1441/98 had been filed by Shri B.K. Tamly and others which is still pending and on 1.9.99 this Tribunal was pleased to vacate the interim order passed in the said case earlier and observed that the respondents will be at liberty to proceed with the fresh selection proceeding and to take appropriate on the basis of the notification dated 10-16th October, 1998 and the Tribunal al$9 observed that it cannot substitute the administrative decision by its own decision on factual enquiry. So, the decision taken by the respondents in cancelling the written examination is right and proper and the application is devoid of merit and liable to be dismissed.
4. Learned advocate, Mr. Ghosh appearing on behalf of the applicants asserted that abrupt decision taken by the respondents for cancellation of the written test is highly arbitrary, illegal and malafide and without jurisdiction. It is contended by the learned advocate, Mr.
Ghosh that the applicants were asked to appear for viva voce and psychological test which were held and conducted by the authorities concerned from 5.3.98 to 7.3.98 and 9.3.98 to 11.3.98 and all the applicants successfully came out in the said tests and they were expecting appointment on the basis on the said selection. But the Chairman of the Railway Recruitment Board, Calcutta by a letter dated 29.6.98 addressed to the Executive Director, Estab. (RRB), Railway Board, New Delhi had sent a proposal for cancellation of the said written test for the reasons disclosed in the said letter and also in the letter dated 11.9.98. Such attempts are motivated and malafide since the reasons disclosed by the respondents in the aforesaid letters dated 29.6.98 and 11.9.98 are not based on any evidence available in the records. In the absence of any reason the impugned order of cancellation vide letters dated 29.6.98 and 11.9.98 are arbitrary and violative of Arts. 14 & 16 of the Constitution. It is also contended by the learned advocate, Mr. Ghosh that the reasons for cancellation have been stated in para 8 of the reply where the respondents stated that a complaint was received from Shri Debabrata Chakraborty bearing Roll No.23708598 about the examination. Since Shri Debabrata Chakraborty appeared in the test and could not succeed, therefore, he made a representation to the authorities with collateral purpose. On the basis of the letter of Shri D. Chakraborty the respondents should not have issued the cancellation order of written examination without giving an opportunity of being heard to the applicants to state their case. But no paper could be produced by the respondents in support of the contention of cancellation of the written test as stated in para 8 of the reply. So, the action taken by the respondents is not only arbitrary, by also violative of the principle of natural justice.
5. Learned advocate for the respondents strenuously contended before us that the reasons for cancellation of the written test examination have been disclosed by the respondents and he further submits that the said decision was taken by the respondents in public interest and for the interest of all, since on the scrutiny about the contents of the complaint made by Shri D. Chakraborty it was observed that the evaluating agency had given the result of the written examination incomplete and faulty in many respects. For example, there were a number of cases where appeared candidates' marks were missing although the Roll Nos. were not available in the result sheets. The learned advocate of the respondents has further drawn our attention to the letter dated 29.6.98, Annexure 'R4' to the reply written by the Chairman RRB, Calcutta to the Executive Director, Estab. (RRB), Railway Board, New Delhi proposing to cancel the written test. He further contended that the respondents failed to produce relevant records in view of the fact that on 7.11.98 there was a devastating fire in M.M.Building, 16 Strand Road, Calcutta and the fire ultimately destroyed all the office records, candidates data and defective mark sheets of the earlier examination, furniture etc. lying in the office. So, the entire episode for cancellation has been described there and reasons have been given for the cancellation of the earlier written examination and to hold it de novo. And the respondents felt that the finalisation of the panel by conducting psychological test and interview again on the basis of the result on the written examination will not be correct and the entire process of the selection from the stage of written examination should be scrapped and the selection conducted de novo. It is also stated that the Board has considered in details the irregularities brought out in the conduct of the examination as stated therein and had decided to cancel the examination for holding the same afresh and accordingly the cancellation was notified in the press.
Annexure 'D' to the application. So, the claim of the respondents for getting appointment on the basis of the written examination is not sustainable for the reasons disclosed in the letter dated 29.6.98.
Annexure 'R4' to the reply. So the application is devoid of merit and liable to be dismissed. The decision for cancellation of written examination is a matter of policy decision of the Government and such decision should not be interfered by the Tribunal. The learned advocate of the respondents also had drawn our attention to the order dated 1.9.1999 (Annexure 'R' to the reply) wherein the Tribunal considered the matter and vacated the interim order granted earlier.
6. The respondents had produced on file containing the letter of complaint of Shri D. Chakraborty which is said to have lodged to the authorities alleging irregularity in the examination conducted by the respondents. We have perused the records and the letter written by Shri D. Chakraborty. On the basis of inquiry into allegation order of cancellation of written test was said to have been issued by the respondents.
7. We have considered the submissions of the learned advocates of both the parties and perused the records. In view of the divergent arguments advanced by the learned advocate for the parties, we find that the decision in the present case hinges of the alleged letter of complaint lodged by Shri D. Chakraborty and on the letter written by the Chairman, RRB, Calcutta on 29.6.98, Annexure 'R4' to the reply, where it is mentioned that on receipt of the complaint from Shri D.Chakraborty bearing Roll No. 23708598 for this examination forwarded vide Board's letter No. E(REP)II98/APZ/RRB/21 dated 29.4.98, it has been observed at the time of scrutiny that though the candidate appeared in the examination as records, in the OMR result sheet his Roll Number is missing. Likewise, there are a number of cases where appeared candidates' marks are missing though Roll numbers are available in the result sheets. Contrarily, in a number of cases, marks have been reflected without corresponding Roll Numbers. It is further stated in the letter dated 29.6.98, Annexure 'R4' that the agency which was entrusted with the OMR evaluation has not returned about 50% of answer sheets. As a result it is not possible to think of rescanning the answer sheets, leaving aside the advisability of this step as it is not done except in exceptional cases. It is true that the policy decision, if any, taken by the Government should be interfered with by the Tribunal unless it is shown that such decision is arbitrary and violative of the Articles 14 and 16 of the Constitution. In other words, it can be said that if the policy decision taken by the respondents in the matter of cancellation of the written examination as is found arbitrary and violative of Articles 14 and 16 of the Constitution the policy decision can be struck down. In order to examine the case, we have gone through the alleged complaint petition filed by Shri D. Chakraborty on the basis of which the respondents had made scrutiny and took such decision in the matter of cancellation of the written examination in this case. The reason disclosed by the respondents is no doubt serious one. So, we have perused the letter written by Shri D. Chakraborty as produced by the respondents at the time of hearing. On a careful scrutiny of the letter of Shri D.Chakraborty it is noted by us that no complain whatsoever has been made in the said letter alleging any irregularity or illegality of the said examination. The respondents had categorically stated in the letter dated 29.6.98, Annexure 'R4' and written reply to the OA that they received complaint from Shri D. Chakraborty bearing Roll No. 23708598 for this examination. On the basis of that letter, scrutiny was done and irregularities were noted by the respondents. We want to reproduce the letter written by Shri D. Chakraborty, which runs as follows: "with due honour and humble submission I Debabrata Chakraborty, VIII, Adampur, P.O. Ajhapur beg to state that I come of a very poor Bramhin family in the District of Burdwan, West Bangal, and my father being old and disabled has no landed property and no other source of income.
Therefore, I have to do priestly job and worship and maintain family with in dequate little income but the old parents and the other members have to starve many days of the year. I am a young man of energetic habits and a dutiful citizen of the country having fundamental right to get job in order to feed my family members.
Finding no ray of hope I am to surrender myself to your goodness for kindly sympathetically providing me with and kind of job at your disposal by which I can save the lives of my old parents.
For this purpose I send here with two zerox copies of admit card of examination for Railway Board Recruitment.
Under the circumstances I appeal to you to consider my case and offer me a job to enable me to save me and the old parents from sure death. May I hope that you will be generous and kind enough to grant me humble prayer." The expression of the word 'complaint' has been defined in the Dictionary as "utterance of grievance; expression of grief; formal accusation". Besides, the word "complaint" has been defined in Section 2 of Code of Criminal Procedure, 1973, which runs as follows: " Complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report." One a perusal of the letter of Shri D. Chakraborty we are of the unable to pursuade by ourselves to treat this letter as "complaint". The respondents misdirected themselves when they treated the letter of Shri D. Chakraborty as "complaint'. Moreover, it is found that the respondents failed to produce any evidence or scrap of paper to justify the statement of irregularities as were detected by the authorities on scrutiny as stated in para 2 of the letter dated 29.6.98, Annexure 'R4' to the reply. It may be a fact that the office of the RRB at Strand Road at Calcutta had been gutted with fire and records have been destroyed due to fire, by from the letter dated 29.6.98 (Annexure 'R4') it is clear that the Chairman, RRB received the report with letter of Shri D. Chakraborty but no explanation whatsoever has been given as to why the Railway Board New Delhi had failed to produce the record to support the reason for cancellation as stated in para 2 of the letter dated 29.6.98. On a perusal of the letter of Chairman (Annexure 'R4'), we find that the Chairman, RRB took the decision for cancellation of the written test on receipt of the complaint from Shri D. Chakraborty.
The letter of Shri D. Chakraborty did not contain any allegation or irregularity or illegality about the conduct of the examination in this case. From the letter itself it is found that more than Rs. 12 lakhs had been spent for holding the written test and after that the Department had decided to cancel the examination on the basis of the letter of Shri D. Chakraborty which did not warrant any scrutiny of the papers for decision as to whether the examination conducted by the respondents was done properly or not. When the reason for cancellation as disclosed in the letter dated 29.6.98 (Annexure 'R4') is not supported with any evidence from the records available in the Court, such action of the respondents for the purpose of cancellation, though may be treated as policy decision, can be said to be arbitrary and unreasonable, and it infringed Articles 14 and 16 of the Constitution.
It cannot be denied that the executive action must be fair and based on cogent reason. If any action is found arbitrary, unreasonable and without basing on any evidence can be said to be unsustainable.
8. It is also stated in the letter dated 29.6.98 that 413 candidates were found successful in order of merit in the written examination and they were called for psychological-cum-interview test from 5.3.98 to 11.3.98 and 398 candidates appeared in the psychological cum interview test, but the panel was not finalised before receipt of the Board's letter dated 28.4.98, Annexure 'R1' to the reply. But the respondents expressed the difficulty for finalisation of the panel even after holding the psychological cum interview test for the reasons that the records were gutted with fire. The respondents also failed to produce the marksheets of the written examination for the reasons of gutting records with fire. From the letter dated 29.6.98 it is further noted by us that the Department had already incurred Rs. 12 lakhs in the conduct of written text and that money has been spent from the exchequer of the Government.
9. After considering the facts and circumstances, we are unable to support the observation/reason given by the Chairman, RRB that the written examination and tests conducted by the authority irregular. We are of the view that the order of cancellation was issued for collateral purpose and not for the reason stated in the letter dated 29.6.98 (Annexure 'R4'). Rather it can be said that this is illegal deprivation of the applicant's the right to be appointed, since we have decided the order of cancellation of the written examination issued by the authority vide letter dated 29.6.98, Annexure 'R4' is not sustainable, thereby, it has to be considered how to neutralise the position in view of the peculiar facts and circumstances where the Department took the plea that the records in respect of written test and psychological cum interview test are not available. From the letter dated 29.6.98, Annexure 'R4' it is found that the respondents admitted the position that 413 successful candidates in the written examination were called for psychological cum interview test from 5.3.98 to 11.3.98, and 398 candidates appeared in the psychological cum interview test, but the panel was not finalised before receipt of the Board's letter No. 98/E(RRB/25/l 5 dated 28.4.98, Annexure 'R1' to the reply.
We find that the letter dated 28.4.98 (Annexure 'R1') was issued after holding psychological cum interview test. Thereby the recruitment process had already been completed, but only the matter of finalisation of list was pending and the complicacy had arisen due to receipt of the letter from Shri. D. Chakraborty. In view of the peculiar circum stances and in order to neutralise the inconvenience and difficulties which would have faced the Department due to non availability of the marks as disclosed in the letter we are of the view that each candidates who appeared in the psychological cum interview test after qualifying in the written test (i.e., 398 candidates) should be allotted 50% marks for qualifying in the written test for determining the merit for the purpose of finalisation of the panel and thereafter the respondents should hold their fresh psychological cum interview test for determination of merit of the candidates for preparing the panel for appointment and merit will be determined by adding marks of psychological cum interview test with the 50% marks of written test allotted to each candidate. Thereafter, the respondents should publish the panel on the basis of the marks allotted in the written test and marks to be obtained in the psychological cum interview test which will be held by the respondents in view of our direction contained above.
10. In view of the position explained above we, therefore, hold that the order of cancellation of written test examination for the purpose of recruitment to the posts of Tr. ASM of Eastern Railway as mentioned above is not sustainable. We find from the records that another group of applicants (OA 1441/98) approached this Tribunal feeling aggrieved by the notification appearing in the Employment News dated 10-16th October, 1998 in pursuance of the decision of the Railway Board contained in the letter dated 29.6.98, Annexure 'R4' and they obtained stay order from this Tribunal. Subsequently the said stay order was vacated on 1.9.99 with a liberty given to the respondents for holding fresh examination in view of the notification dated 10-16th October, 1998, as mentioned above and the petitioners were also given liberty to appear in the same examination on the dates as notified to them without prejudicing their rights and contentions in that OA. The Tribunal had also made it clear therein that the action taken or to be taken by the respondent authorities during the pendency of that application will abide by the final order to be passed by this Tribunal in the aforesaid OA. We find that the respondents did not finalise the process after vacating the order of injunction granted by the Tribunal on 1.9.99. so, in view of the aforesaid position we pass the following order: The impugned order of cancellation of written examination contained in the letter dated 29.6.98 (Annexure 'R4) and notification appeared in the Employment News dated 10-16th October, 1998 (Annexure 'D') in pursuance of the above decision of the Railway Board contained in the letter dated 29.6:98, Annexure 'R4' are hereby set aside. The written examination conducted by the respondents should be treated as final and valid and the respondents are directed to allot 50% marks in the written examination to each of the candidates who appeared in the earlier psychological cum interview test and the respondents are also directed to hold a fresh psychological cum interview test of 398 candidates who appeared earlier and thereafter they should prepare a final list according to merit after taking into consideration of 50% marks in the written test, as allotted to each candidate and the marks which would be obtained by them in the psychological cum written test in view of our observation made above and the respondents should finalise the panel for appointment according to merits within three months from the date of communication of this order and thereafter they should appoint the candidates from the panel according to merit and in accordance with the rules. With this observation we allow the application awarding no cost.