Saturday, November 3, 2012

OA No.84 / 2010 on 25 AUGUST, 2010






1. Sri C.T. Anto, 44 years,
    S/o Sri C.V. Thomas,
    Assistant Electrical Divisional Engineer,
    O/o Chief Electrical Engineer,
    South Western Railway,
    Hubli – 580 023.

2. Sri R. Nagaraja, 43 years,
    S/o SrI K.N. Ramanna,
    Assistant Electrical Divisional Engineer,
    O/o Deputy Chief Electrical Engineer (Construction),
    South Western Railway.
    Hubli – 580 023.

3. Sri D. Ravishankar, 31 years,
    S/o Sri Y.S. Dakshinamurthy,
    Assistant Divisional Electrical Engineer (Coaching),
    O/o Senior Divisional Electrical Engineer,
    South Western Railway,
    Hubli – 580 020.                             ...                                 Applicants

(By Advocate Shri P.A. Kulkarni)


1. Union of India,
    to be represented by its General Manager,
    South Western Railway,
    Hubli – 580 020.

2. South Western Railway,
    Lakshmi Balakrishna Square,
    3rd Floor, Station Road,
    Hubli – 580 020.
    To be represented by its
    Chief Personnel Officer.                             ...                                 Respondents

(By Advocate N.S. Prasad, Sr. Standing Counsel for Railways)

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Hon'ble Smt. Leena Mehendale, Member (A) :

            This is a case of Railway authorities first promoting the applicants from Group 'C' to Group 'B' posts and then reverting them after about eleven months on the ground of alleged misdeed of the seniors responsible for selection process and is juxtaposed to a similar Apex Court judgment in the case of Union of India & Ors. Vs. O. Chakradhar – reported in (2002) 3 SCC 146.

2.         Briefly, the three applicants who are Assistant Divisional Electrical Engineers (Group B) under the South Western Railway, were promoted to the present post by order dated 13.3.2009 after due process of selection against the 30% quota kept for promotion.  The due process was to hold a LDCE (Limited Departmental Competitive Examination).  Its resultant empanelment is produced at Annexure-A/5 which states, among other terms, that the selection panel is provisional and is subject to the outcome of judgments in any matter pending before the Hon'ble High Court or the Supreme Court. 

3.         After the empanelment, the three applicants were actually promoted to the present Group B post of ADEE vide order dated 13.3.2009 (Annexure-A/6)  and it is claimed by the LCA (learned counsel for the applicant) that the very fact of issuing the promotion order pre-supposes that the clause of provisionality as mentioned at para 2 of Annexure-A/5 is gone.  He also points out that as on the date of the order in Annexure-A/6, the Railways had no case or appeal pending before the Hon'ble High Court or the Supreme Court on any issue as referred to in para 2 of Annexure-A/5. 

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4.         Thereafter, vide order dated 25.2.2010 (Annexure-A/10), it is communicated to the applicants that "consequent on cancellation of the LDCE (30% quota) notification notified vide this office letter of even No. dt. 20.10.08, for the Gr.B post of ADEE/AXEE, the following employees who had been empanelled as a result of the said LDCE vide this office Panel No.43 dt. 05.03.09 and promoted from Gr.C to Gr.B capacities vide this office order under reference issued under letter of even No. Dated 13.03.09, are reverted to their substantive post/grade held by them in Gr.C at the time of promotion to Gr.B with immediate effect.  Accordingly, all the privileges extended to them in Gr.B are hereby withdrawn."  Thus, the applicants were sought to be reverted after a lapse of more than eleven months without assigning any reason and also without being given opportunity or hearing.  This order dated 25.02.2010 (Annexure-A/10) is under stay, pending this OA.

5.         It is claimed by the respondents that out of the 30 candidates who appeared for the LDCE for promotion, one Shri Kanhaiah Lal requested for some information regarding the marks obtained and the Department, while looking at various records pertinent to the query so raised, has stumbled upon certain misdeeds of senior officer namely CETE involved in the process of examination of the candidates.  Thereupon, the Railway authorities, apparently considered it fit to cancel the selection process and revert the present applicants.  It is claimed that while doing so, the authorities at South Western Railway have taken opinion of the CVC as well as the permission of the Railway Board who have both held that irregularities have definitely been committed and in particular the Railway Board has taken a decision of cancellation of the entire selection process.  It is further claimed that their action of reverting the three applicants without assigning any reason but merely on the basis of cancellation of the entire
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selection process is justified in view of the judgment of the Hon'ble Supreme Court in the case of Union of India & Ors. Vs. O. Chakradhar and also in view of the fact that the concerned CETE who was responsible for commiting the said irregularity has been punished by way of departmental action.  The learned counsel for respondents has also stated as a third justification the fact that Annexure-A/5 clearly mentions that the selection of the applicants on the basis of examination is a provisional selection.

6.         We have heard both the counsels at great length and have come to the conclusion that the action of the Railway Board and the respondents cannot be called justified.

7.         First, coming to the question of punishing the wrong doing officer (CETE) by way of departmental proceeding, we find that the action taken against him is virtually next to nil.  No doubt, the respondents have forwarded the case papers to CVC and to the Railway Board so that they could take cognisance of the wrong doing of the officer.  It appears to have been reported that he manipulated the marks of the examination by overwriting on them.  But, it is also seen that by the time the case records came back to the appropriate authority for actual action against the said officer, time was ripe for his retirement and hence, claim the respondents, that there was no time to engage in lengthy departmental inquiry.  Thus, the authorities satisfied themselves by imposing the punishment of withdrawal of one set of Railway passes on the so called wrong doing officer (CETE).  The learned counsel for the applicant has very pertinently pointed out to us that based on the seniority, a retired railway officer is entitled to several sets of passes each year and out of several such passes, (whose number may run into hundreds over the full retired life of the officer), only one set of passes was
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withdrawn.  We feel that this might be one of the rarest and most trivial punishment in the history of Railways.  As pointed out by the LCA, it only establishes the triviality of the entire offence for which, he points out, the applicants cannot be punished with the penalty of reversion.  The LCA further argues that unless and until the manipulated record is physically seen, it is not possible to establish or verify whether really any manipulation has taken place and what was the role of the said officer in it or what was the role of the applicants in such a manipulation.  Thus, when he is denied a chance to peruse the record, he is also denied the chance to properly represent himself.

8.         As for the provisionality of the selection procedure mentioned at Annexure-A/5 is concerned, we have already discussed what the learned counsel for the applicants has pointed out.  We agree with his argument that the selection panel was provisional and subject only to any outcome of the judgment of the Hon'ble Supreme Court or High Court then pending on the issue affecting the selection.  But, no such writ or appeal was pending.  Moreover, issuance of Annexure-A/6, which is the promotion-cum-posting order of the three empanelled applicants issued after the issuance of Annexure-A/5 pre-supposes that the provisionality clause is gone.

9.         This leaves us with the question of the judgment of the Hon'ble Apex Court in Union of India & Ors. Vs. O. Chakradhar - (2002) 3 SCC 146.  Both the learned counsels have argued elaborately about the various salient issues that have come out in the above said judgment.  Moreover, we have also studied the same at a great length.  The two cardinal points which came out in that judgment were as below:-
(i)                  It was a case of fresh recruitment to the post of Junior Clerk-cum-Typists in which a large number of candidates had appeared for examination.  The Apex
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Court has observed that the illegality and irregularities committed while preparing the final result sheet were so intermixed (in view of the large number of candidates), that the whole process of selection was vitiated as it became impossible to sort out the right from the wrong.  The Hon'ble Supreme Court has particularly observed that:
"It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable.  The present case, therefore, is not one of those cases where it may have been possible to issue any individual notice of misconduct to each selectee and seek his explanation in this regard to the large-scale, widespread and all-pervasive illegalities and irregularities committed by those who conducted the selection which may of course possibly be for the benefit of those who have been selected but there may be a few who may have deserved selection otherwise, but it is difficult to separate the cases of some of the candidates from the rest even if there may be some.  The Railway Board's decision to cancel the selection cannot be faulted with and the order of termination of the services of the respondent is upheld."

10.              It is thus obvious from the above that the cardinal points in this judgment was (a) the large-scale irregularities that were committed and (b) the fact that those irregularities were so much intermixed that it was difficult to separate out the right from the wrong.  We fully agree with the LCA that the present case is not of that type.  Here, the mischief played is not so wide spread or all pervasive so as to make it difficult to pick out the persons who may have been a party to the unlawful benefits or who may
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have been wrongfully deprived of their selection. 

11.       The learned counsel for the respondents has also pointed out how the Hon'ble Apex Court has dealt with two earlier decisions relied upon by the parties.  Quoting the case of Krishan Yadav, it has been observed that: 
"Those candidates whose performance was excellent were not selected.  An inquiry was ordered by the Supreme Court to be held by CBI.  The report revealed acts of favouritism, selection without interview even on the basis of fake or ghost interview, tampering with the records and fabrication of documents etc. In such circumstances it was held that entire selection was vitiated even in respect of those who had already been appointed and had been working for a past few years.  It was further observed that individual cases of innocence have no relevance in such circumstances".
In another case reliance was placed on the decision reported in  Kashinath Dikshitha Vs. Union of India,
"on the proposition that a case where reasonable opportunity of hearing is denied to a delinquent, it vitiates the inquiry and renders the order of punishment invalid.  There cannot be any doubt about the proposition of law as propounded in the above-noted case.  Reasonable and adequate opportunity of hearing has always to be provided to a delinquent officer against whom disciplinary proceedings have been initiated by the Department.  The case however, pertains to an inquiry against an individual officer based on allegation of misconduct on his part". 
            These two apparently conflicting judgments clearly enunciate the difference in two types of cases – one of large-scale irregularity and the other of individual
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12.       Thus, as pointed out by the learned counsel for the applicant, the present case  before us does not fall into a category where large-scale irregularities make it impossible to separate the right from the wrong.  It is only a case of promotion of three out of 30 candidates where all the 30 candidates are already in the service of the Railways and it was not impossible to decide the exact nature of mischief and the role played by each candidate or the officer.  Hence, we hold that the ruling of the Hon'ble Apex Court in the Union of India & Ors. Vs. O. Chakradhar does not apply here.

13.       This fact, coupled with the triviality of action taken by the Railway Board against the delinquent officer leads us to conclude that the action of the Railway Board in advising the cancellation of empanelment (Annexure-A/5) and reversion of the three applicants without assigning any reason was bad in law.  We have further to observe that even though the Railway Board has now come to know of a possible modality of committing irregularity by their senior recruiting officers, they have not yet taken any step to ensure that in future such modalities are curbed  and not adopted any more.  Thus, they are leaving a vacuum and allowing possibility of future malpractices too.  They have not issued any new instruction on the point of care to be taken in this respect.  This also shows that either the Railway Board themselves consider this event to be very trivial and would therefore not be justified in punishing the present applicants by way of their reversion or else, the Railway Board is too careless about rectifying the illness that has crept in their system.  We would only like to mention by a word of caution that Railways being an important infrastructure of our country, the
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Board will be well advised to spend some time on brainstorming and rectifying such incidents as above.

13.       We have no hesitation to uphold the claim of the applicants by quashing the order dated 25.2.2010 – Annexure-A/9 passed by Respondent No.2.  The OA is thus allowed with no order as to costs.

                        (LEENA MEHENDALE)                              (N.D. RAGHAVAN)  
                                MEMBER (A)                                       VICE CHAIRMAN


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