Judgment:
1. Seven applicants have jointly filed this OA challenging the decision of the respondents dated 10-10-95 (Annexure-A3) by which the panel dated 14-7-95 for promotion to the post of OS Grade II was cancelled.
2. The admitted facts in this case are that the applicants and private respondents were working as Head Clerk in the Security Department of Eastern Railways. In order to fill up 13 vacancies in the posts of O.S.Grade. II from amongst Head Clerks a notice was issued on 28-12-94. The 36 eligible candidates were selected for appearing in the written test which was held on 24-6-95 and a further continuation test or supplementary test was held on 7-7-95. 28 candidates appeared in the aforesaid written test and out of them 20 candidates qualified for viva voce test. The viva voce test was held on 13-7-95 and on 14-7-95, a panel of 12 candidates as per Annexure A-1 was published. The names of the applicants have been included in this panel. But the names of the private respondents did not find place in the said panel.
3. The troubles started after the panel was published. Some Senior employees who could not either quality or did not appear in the written test started making representations and some complaints have also been lodged individually and also through unions. It was pointed out by them that the result of the written test was not published before holding the viva voce test. It was also alleged that the panel included at least 2 persons who did not secure 60% marks in the professional ability test. It was also pointed out that the candidates who could not secure 60% marks in the written test had to be given the benefit of notional seniority in order to be eligible for viva voce test. But while calling such persons to the viva voce test they were not intimated that they were being called on the basis of notional seniority marks which is the pre-requisite as per the Rly. Rules. It was, therefore, alleged that in holding the aforesaid selection process, the procedure has not been followed. The matter was considered by the respondent authorities and ultimately the panel was cancelled by the Addl. Chief General Manager and accordingly the impugned order was issued.
4. The Railway respondents have filed the reply contesting the application. It is stated that after noticing certain procedural lapse being committed in the conduct of the selection process, the competent authority decided to cancel the panel. It is therefore contended that there was no illegality in the action of official respondents in issuing of impugned order cancelling the panel. The private respondents, rather the two added respondents, have filed a detailed reply annexing various documents including the result sheet. Their main objections to the aforesaid panel have already been mentioned in short while narrating the facts above and we are therefore not mentioning their reply in this order. We shall discuss their objections at the appropriate place.
5. We have heard the learned Counsel of all the parties and have gone through the records submitted before us. The learned Counsel for the Railways produced the departmental files relating to the selection as also the result sheets of the selection. We have also gone through the same.
6. The Counsel for the applicant has raised a contention that the panel was approved by the Chief Security Commissioner and therefore he can only cancel the same. But in the instant case the panel was cancelled by the Addl. General Manager which is totally arbitrary and illegal and therefore the impugned order cannot be sustained. However, the learned Counsel for the respondents contended that the AGM is the competent authority to cancel the panel.
7. In order to consider this aspect, we may refer to the provisions of Rule 219(1) of IREM Vol. I 1989 Edn. which reads as follows: "After the competent authority has accepted the recommendations of the Selection Board, the names of candidates selected will be notified to the candidates. A panel once approved should normally not be cancelled or amended. If after the formation and announcement of the panel with the approval of the competent authority it is found subsequently that there were procedural irregularities or other defects and it is considered necessary to cancel or amend such a panel, this should be done after obtaining the approval of the authority next higher than the one that approved by the panel." 8. It is therefore evident that after the formation and announcement of the panel if it is subsequently found that there was procedural irregularities or other defects, then the said panel can be cancelled or amended and this should be done after obtaining the approval of the next higher authority than the one that approved the panel. In the instant case the AGM is higher in rank than the Chief Security Commissioner, who had approved the panel. Therefore, the AGM has the authority to cancel the panel. We are therefore unable to accept the contention of the learned Counsel for the applicant in this regard.
9. An objection has been raised by the added private respondents that the result of the written test was not declared before holding the viva-voce test and this is one of the procedural irregularity. The learned Counsel for the applicant states that there is no provision in the rule to publish the result of written examination. In fact no rules or Rly. Board's instructions have been produced before us. In the departmental file produced we find that the same plea has also been taken from the office of CPO in this regard on the basis of the complaint received by the Staff Unions, since there is no rule or Rly.
Board's instruction in this regard, much importance cannot be given to this objection raised by the side of the private parties. Furthermore, due to non-publication of result of written test, the private respondents or others are not prejudicial. One of the private respondents has been called to the viva-voce test and Respondent No. 7 could not secure 60% marks in written test plus the notional seniority marks.
10. Another ground taken by the respondents is that one Shri O.K. Roy Choudhury was not called to the selection test. It is contended that as he was sick he should have been given a chance to appear in the supplementary examination but this was not done. The relevant rules for supplementary examination is at para 223 of IREM which only reads as follows: 1. (i) A supplementary selection may be held in the following types of cases:- (a) summons for interview being received too late by the candidates making it difficult for him to reach the place of interview; (c) Sickness of the candidate or other reason over which the employee has no control. Unavoidable absence will not however, include absence to attend a wedding or similar function or absence over which he has control. Sickness should be covered by a specific service from the Railway Medical Officer." 11. It is seen from the Departmental records that the name of Shri Roy Choudhury was in the list of eligible candidates. But he did not appear during the written test. He was also not present during the supplementary test held on 7-7-95. From the records we find that a notice for examination was given and by a letter dated 26-6-95 the Senior Security Commissioner intimated the concerned officer where Shri Roy Choudhury was working to intimate him about the continuation written test to be held on 7-7-95 and it was requested that he may be spared on that date. On 4-7-95 an intimation was sent to the said Senior Security Commissioner that Shri Roy Choudhury had reported sick with effect from 19-6-95. Further, we find that there is a report dated 8-8-95 from one Shri Gautam Mitra, Sr. Clerk of Chief Security Commissioner's office in which he states in writing that on 29-6-95 he went to contact Shri D.K. Roy Choudhury but he could not find him at his residence and it is further mentioned that he delivered the call letter to one of the member of his family. We further find that on 21-7-95 the said Shri Roy Choudhury gave a letter stating that he was sick from 19-6-95 to 9-7-95 and he joined his duty on 10-7-95 and he has requested to hold a test for him. On the basis of his representation, a recommendation was made by the Chief Security Commissioner on 9-8-95 to the CPO requesting him to take appropriate decision in this regard. It was pointed out that Shri Roy Choudhury joined on 10-7-95 on production of PMC in support of his sickness. From para 223 of IREM quoted above it is clearly mentioned that sickness should be covered by a specific certificate from the Railway Medical Officer. In the instant case, the medical certificate appears to have been submitted from Private Medical Officer. Therefore, the case is not covered for holding a supplementary examination as per rules. Further, the matter has been referred to the CPO for necessary orders, which is still awaited.
12. The most vital grounds as urged by the private respondents, which we find also the grounds for cancellation of the panel, are that two persons viz. Shri Samim Ahmed Noor and Smt. Shibani Halder, who did not secure 60% marks out of 50 marks allotted for professional ability test, have been included in the panel. This is against the rules. The second ground taken by the private respondents is that as per Rly.
Board's circular Sl. No. 82/92 whenever staff are called for interview by adding notional marks for seniority it should be specifically made clear to them that they are being called for interview based on the marks for seniority awarded on notional basis and that empanelment will be subject to securing 60% marks on the professional ability and 60% marks in the aggregate. According to the private respondents this procedure was not followed and hence there was procedural irregularity.
13. We have gone through the selection fife produced by the learned Counsel for the official respondents. At page 13 of the said file No.CPO/IR/22-9-95, we find that there is a note dated 22-9-95 from CPO(IR). It is mentioned that after receipt of the complaint from ERMU, the selection proceedings were scrutinized by CPO(IR) and the following irregularities were noticed: "(1) Shri Shamim Ahmed Noor at Sl. No. 1 and Smt. Shibani Halder appearing at Sl. No. 9 of the Tabulation Statement (Flagged "C" secured less than 60% marks in the professional ability. Para 219(h) of IREM, Vol. I of 1989 (Flagged 'D') provides that if a candidate does not secure 60% marks in professional ability, he/she shall not be placed on the panel.
Therefore, placement of the above names on the panel as successful candidates is wrong.
(2) According to Railway Board's Instructions, circulated vide Serial Circular No. 82/92 (Flagged 'E'), whenever staff are called for an interview by adding the notional marks for seniority, it should be specifically made clear to them that they are being called for interview based on the marks for seniority awarded on notional basis and that empanelment will be subject to their securing 60% marks in the professional ability and 60% marks in aggregate".
14. On the basis of the above note the AGM ordered on the same date as follows: "The panel is cancelled herewith for reasons mentioned in CPO IR's note above." 15. It is therefore obvious that the panel was cancelled on the basis of aforesaid two reasons. We may now consider the reasons with reference to the rules. It is an admitted position that the post of O/S Grade II is a selection post. As per para 215 of IREM, selection post has to be filled by a positive act of selection made with the help of Selection Board. The positive act of selection has been defined to consist of written test and/or viva-voce test. In para 219 the marks of different kind of test have been allotted. It appears that for professional ability test 50 marks has been allotted and qualifying marks have been stated to be 30. For personality test 20 marks have been allotted besides for record of service 15 marks have been allotted and for seniority 15 marks have been allotted. The professional ability test consists of 2 parts i.e. written test and viva-voce test. It is provided in Note (ii) as under: "Candidates must obtain a minimum of (60% out of 50) 30 marks in professional ability and 60% marks of the aggregate for being placed on the panel. Where both written and oral tests are held for adjudging the professional ability, the written test should not be of less than 35 marks and the candidates must secure 60% marks in written test for the purpose of being called in viva-voce test. This procedure is also applicable for filling up of general posts.
Provided that 60% marks of the total marks prescribed for written examination and for seniority will also be the basis for calling candidates for viva-voce test instead of 60% of the marks for written examination." 16. It is therefore clear that a person is to be called for viva-voce test only if he secures 60% marks in the written test. There is a Railway Board Circular dated 5-12-84 available at page 21 of the reply of the private respondents. This is on the subject of selection posts - written examination as part of selection process - Determination of eligibility for interview. It is mentioned in para 2 that only those candidates those who secured 60% marks are to be called for viva-voce test. There is also further liberalised provision for senior persons who may not have secured 60% marks in the written test to be ineligible to be called in the interview. In such case seniority marks are added notionally to the marks secured in the written examination and 60% marks is calculated on this basis. And if they secured 60% marks, (i.e.
out of 50 - for written test 35 and 15 for seniority) marks, then they are also eligible to be called for interview. But for this category of person there is a Rly. Board's circular dated 31-3-1992 which provides as follows: "Board desire that whenever staff are called for interview by adding notional marks for seniority it should be specifically made clear to them that they are being called for interview based on the marks for seniority awarded on notional basis and that empanelment will be subject to their securing 60% marks in the professional ability and 60% in the aggregate. This will avoid unnecessary raising of hopes amongst the senior candidates called for interview after taking into account notional marks for seniority." 17. From the result sheet of the written examination we find that Shri Shamim Ahmed Noor who is the seniormost person amongst the candidates, appeared in written test, secured 20 marks in the written test. Total marks in the written test was 35 and therefore 60% marks comes to 21.
Similarly, Shri Durga Gopal Deb, respondent No. 7 secured 19 marks in the written examination and he did not secure 60% marks. There is another person viz. Shri Asit Kumar Das, who secured 19 marks. All other persons who were called for the viva-voce test secured 60% marks.
Thus, only 2 persons viz. (1) Shri S.A. Noor (2) Shri A.K. Das were given the benefit of notional seniority marks for calling to the interview. From the final result sheet we find that Shri S.A. Noor secured 28 marks in the professional ability test and Smt. Shibani Haldar secured 29 marks in the professional ability test. 60% marks in professional ability test is 30 and therefore both these persons cannot be said to have qualified in the professional ability test. Then again both of them secured more than 60% marks in total and their names were included in the panel. This is obviously wrong because as per rule if a candidate does not secure 60% marks in the professional ability test, he/she shall not be placed on the panel and therefore the panel is defective. But in our view this defect or error has crept in at the time of final tabulation and it can be called a clerical error and not procedural irregularity. The provision for cancellation of panel in the case of procedural irregularities also provides for amendment of the panel. Since the irregularity is clerical in nature and not a procedural irregularity, the error could have been rectified by amending the panel by the competent authority. The persons qualified the empanelled in the said panel are not at fault and cannot be held responsible for this clerical mistake.
18. It is true that as per Rly. Board's circular whenever a person did not secure 60% marks in the written test but called to viva-voce test adding notional seniority marks, he should have been intimated in advance. We have noted above that only except Shri Noor another person viz. Shri A.K. Das was given this benefit. Therefore, if any procedural lapse occurred, for which entire panel should not have been cancelled.
Moreover, Shri Asit Kumar Das has not challenged his non-selection and non-inclusion in the panel. In the case of selection post, seniority alone is not the criteria. Good work and sense of public duty among conscientious staff should be recognised. Therefore, only one this minor defects, the entire panel should not be cancelled to deprive the legitimate claim of deserving staff who faired well in the selection and aspiring for promotion, based on their good performance in the examination.
19. The private respondents have made out a grievance that respondent No. 6 was called to the interview but not finally empanelled.
Similarly, the private respondent No. 7 alleged that he did not fairly well in the written test but he was not called in the interview. We find that the respondent No. 7 secured 19 marks in the written test, which was less than 60% marks and his position was below Smt. Abha Rani Shorn, who secured 10.39 as seniority marks, Hence, even if the seniority marks added to the written test mark of respondent No. 7, it is less than 30, i.e. less than 60% marks and therefore he was not eligible to be called to the interview. It is now well settled that if a person participates in a selection process but ultimately could not come out successful, subsequently he cannot take the plea that the Selection Committee was not fair. Such allegation cannot be sustained in law. The selection committee comprised of very high officials and there is no allegation against them.
20. The learned Counsel for the applicants has referred to some judgments in support of his case which are as follows: (a) Devi Singh and Ors. v. Union of India and Anr., (1991) 17 Administrative Tribunals Cases 692.Air Force Employees Union, Bangalore Dist v. Union of India and Ors.,Shankarsan Dash v. Union of India, Supreme Court of India CA No. 8613 of 1983 dt. 30-4-91=1992(1) SLJ 7 (SC).
(d) State of Bihar and Ors. v. Shri Akhori Sachindra Nath and Ors., CA No. 232 and 233 of 1978 dt. 19-4-91 (SC).
(e) Manna Roy v. Union of India and Ors., CA No. 2368 of 2000 dt.
3-4-2000 (SC).
(f) Santosh Kumar Chakraborty and Ors. v. State of West Bengal and Ors., W.P. No. 6396(W) of 1999 dt. 4-1-2000 (Calcutta HC).Rajani Kanta Chatterjee and Ors. v. Union of India and Ors., OA No. (h) T.R. Raveendran and Ors. v. Union of India and Ors., OA Nos. 23 of 1996, 495 of 1996 and 1222 of 1997, dated 23.9.99 (CAT - Ernakulam Bench).
For the reasons stated above, we need not discuss these decisions unnecessarily.
21. In view of our foregoing discussions we find that only two grounds were given for cancellation of the panel by the AGM. We have held that inclusion of names of Shri Noor and Smt. Haldar was a mistake at the final stage of tabulation and publication of panel and this could easily be rectified by deleting their names and preparing a fresh panel when there is provision for amendment of the panel in the rule itself.
So far as giving the benefit of notional seniority is concerned, wo have noted that barring Shri Noor only one has got the benefit and he has not raised any objection his non-inclusion in the panel.
22. In view of the above, we dispose of this application by directing the respondent authorities to amend the panel dt. 14-7-95 by deleting the names of Shri Samim Ahmed Noor and Smt. Shibani Haldar and to publish a fresh and amended panel on the basis of the marks sheet and broad sheets of the selection test held on 24-6-95 and 13-7-95. This be done within one month of communication of the order and thereafter the respondents should give regular promotion to the empanelled persons.
Interim order is vacated. There will be no order as to costs.