CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BANGALORE
ORIGINAL APPLICATION NO.84/2010
WEDNESDAY, THIS THE 25th
DAY OF AUGUST, 2010
HON'BLE SHRI N.D.RAGAHVAN ….VICE CHAIRMAN
HON'BLE SMT. LEENA MEHENDALE ….MEMBER(A)
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)
Vs.
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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O R D E R
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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involvement.
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
-
9 -
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
psp.
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