Judgment:
1. As the two O.As revolve on the same issues namely illegality or otherwise of cancellation of the provisional panel in respect of the post of Commercial Inspector, these two cases are being disposed of by a common and consolidated order.
2. Briefly stated the applicants are serving as Senior Clerks in the Commercial Branch and are entitled to participate in the departmental examination for the post of Commercial Inspector in the Grade of Rs. 5000-8000/-. The respondents have initially circulated the list of the eligible candidates for the post of Commercial Inspector, but, for some certain reasons they initially cancelled the notification atleast twice. Finally, the respondents circulated the list of eligible candidates to participate in the examination for promotion to the aforesaid post, on 20.7.2004 and in the examination the applicants in both the O.As appeared. By Annexure A-10 order (in O.A. No. 971 of 2005) dated 15.10.2004 the respondents declared the result of written test indicating the names of those, who qualified for placement of their names on the panel of Commercial Inspector in the Grade of Rs. 5000-8000/-. By Annexure-11 order dated 25.10.2004 the respondents declared the provisional panel of eight candidates for the aforesaid post so far so good for the applicants. However, by order dated 2.3.2005 the respondent No. 2 issued notice to cancel the selection proceedings for the above post and by order dated 14.3.2005i the said respondent issued notice to cancel the provisional panel dated 15.10.2004. It is curious to notice that the provisional panel dated 25.10.2004, however, was not cancelled. By order dated 18.3.2005 the respondents notified for holding a fresh selection for the post of Commercial Inspector inviting fresh applications. The applicants are aggrieved by the cancellation of the panel dated 15.10.2004 and publication of notification dated 18.3.2005 and have sought for the following relief(s): Hon'ble Tribunal may graciously be pleased to quash the impugned notices dated 2.3.2005 (AnnexureA-1), 14.3.2005 (Annexure A-2), 18.3.2005 (Annexure A-3) and 25.7.2005 (Annexure A-3/1) and direct the respondent No. 4 (i.e. General Manager) to restore the panel of Commercial Inspectors Grade Rs. 5000-8000/- deleting the name of ineligible candidates from the select list/panel dated 25.10.04 and post the applicants/selected candidates accordingly as per rules giving retrospective promotion from the date vacancies arose.
3. The respondents have contested the O.A. According to them, the provision exists for cancellation or modification under rule 219(L) of IREM and in the instant case while the provisional panel was approved by the Additional D.R.M., the cancellation of the same was done by the Chief Personnel Officer, who is above A.D.R.M. and also the head of the Personnel Department. As regards grounds for cancellation, the respondents have stated in their Counter as under: ...the employee namely Niraj Kumar Srivastava, Commercial Inspector Grade III Salempur who is placed at Sl. No. 2 in panel published on 25.10.2004 was reverted back for three years in the pay scale of Rs. 3200-4900/- with cumulative effect, vide punishment order dated 26.6.2004 as per provisions laid down in Railway Service Discipline & Appeal Rules 1968, and due to aforementioned reason he was not eligible to be selected as Commercial Inspector Grade Rs. 5000-8000/-. But he applied for the post of Commercial Inspector Grade Rs 5000-8000/- concealing the aforementioned facts and his application was also forwarded by his Superior officer as well. Mr.
Niraj Kumar Srivastava was included in the panel of Commercial Inspector Grade Rs. 5000-8000/-which was published on 25.10.2004, but as soon as this irregularity came to the notice of authorities concerned, the matter was put up before D.R.M. and as per his direction the entire matter was referred to G.M. (P), N.E.R., Gorakhpur for his consideration. The G.M. (P), N.E.R., Gorakhpur after going through the entire case file directed to cancel the panel issued vide letter No. Ka/Va/254/15/8/Bha-7/6 dated 19.1.05 and to start the selection afresh. In compliance of aforementioned direction issued by G.M. (P) the entire proceeding was cancelled by D.R.M., N.E.R., Varanasi vide his office letter No. Ka/Va/254/III/Comm.Ins/part IV dated 14.3.2005.
4. The counsel for the applicants submitted that the ground for cancellation of the panel is not substantial and as such cancellation is illegal. He has relied upon the following decisions:Union of India and Ors. v. Rajesh P.U. Puthuvalnikathu and Anr.
reported in 2003 SCC (L&S) 1048.
(ii) Brijesh Kumar Srivastava. v. U.O.I. and Ors. reported in 2003(3) ATJ 70.
(iv) Kanhaiya Lal v. U.O.I. and Ors. reported in 19897 4 SLR 701 (Jodhpur) 5. The counsel for the respondents submitted that the order being by the competent authority for the valid reasons and there has been no allegation of malafide etc., the action of the respondents in cancellation the provisional panel may not be interfered with.
6. Arguments were heard and the documents perused. Annexure A-11 is a provisional panel which contains as many as eight candidates one of whom is Sri Niraj Kumar Srivastava and according to the respondents while he was under the currency of panel which incapacitated him from taking of the examination concealing the same, the said Neeraj Kumar Srivastava had participated in the examination and was empanelled. The question is whether can of this individual the entire panel should be cancelled and fresh selection ordered. While the apex court judgment in the case of Rajesh P.U. Puthuvalnikathu (supra), it has been held by the apex court as under: 6. On a careful consideration of the contentions on either side in the light of the materials brought on record, including the relevant portions of the report said to have been submitted by the Special Committee constituted for the purpose of inquiring into the irregularities, if any, in the selection of candidates, filed on our directions - which report itself seems to have been also produced for the perusal of the High Court - there appears to be no scope for any legitimate grievance against the decision rendered by the High Court. There seems to be no serious grievance of any malpractices as such in the process of the written examination - either by the candidates or by those who actually conducted them. If the Board itself decided to dictate the questions on a loudspeaker in English and Hindi and none of the participants had any grievance in understanding them or answering them, there is no justification to surmise at a later stage that the time lapse in dictating them in different languages left any room or scope for the candidates to discuss among them the possible answers. The posting of invigilators for every ten candidates would belie any such assumptions. Even that apart, the Special Committee constituted does not appear to have condemned that part of the selection process relating to conduct of the written examination itself, except noticing only certain infirmities only in the matter of evaluation of answer-sheets with reference to correct answers and allotment of marks to answers of some of the questions. In addition thereto, it appears that the Special Committee has extensively scrutinized and reviewed the situation by re-evaluating the answer-sheets of all the 134 successful as well as the 184 unsuccessful candidates and ultimately found that except 31 candidates found to have been declared successful though they were not really entitled to be so declared successful and selected for appointment there was no infirmity whatsoever in the selection of the other successful candidates than the 31 identified by the Special Committee. In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an all-pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or the other irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or the other reasons. Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go-by to contextual considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation. In short, the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational.
The other decisions cited by the counsel for the applicants also fully support the case of the applicants. In a number of decisions as well it has been held that unless there has been a very strong and substantial reason like mass copying or full-fledged fraud the cancellation of any examination has not been encouraged by the Court. In the instant case, there has been no allegation as to any such malpractice and the selection process is reaching for provision of provisional panel and all that is to be done as to final, the said panel and issue necessary appointment/promotion orders at this stage to cancel the entire selection proceedings for the reasons given by the respondents is totally illogical. The provision exists for amendment of the panel and incase Niraj Kumar Srivastava should not be considered as held by the Apex Court in the aforesaid cited case, particular person could be weeded out from the select list and rest of the selected candidates should not be penalized.
In view of the above, both the O.As are allowed. The orders dated 2.3.2005, 14.3.2005, 18.3.2005 and 25.7.2005 (Annexure nos. 1, 2, 3 and 3/1 are hereby quashed and set-aside. The respondent No. 4 is directed to restore the panel of Commercial Inspector if necessary after deleting the name of ineligible candidates from the select list dated 25.10.2004 and complete the entire selection process in accordance with law. No costs.