Muzaffar Husain, Member (J) - (1.) THE grievance of the applicants is that the respondents have conducted the selection for promotion to the post of Law Assistant in violation of the various orders of the Railway Board and have published on 01.01.2003. Hence, they have filed this OA under Section 19 of the A.T. Act seeking following reliefs:- (a) This Hon'ble Tribunal may graciously be pleased to call for the records of the case which led to issuance of the panel dated 01.01.2003 and after going through its propriety, legality and constitutional validity, be pleased to quash and set aside the panel dated 01.01.2003 issued under Order No.E/Legal/1025/4/27 Vol. IV issued by Respondent No. 2. (b) This Hon'ble Tribunal may further be pleased to direct the respondents to conduct a fresh selection to the post of Law Assistant. (c) Joint Original application may be allowed to be filed. (d) Cost of this Original Application be provided for. (e) Any other and further order as this Hon'ble Tribunal may deem fit proper and necessary in the circumstances of the case.
(2.) The facts of the case in brief are that the applicant No. 1 is working as ad hoc Law Assistant since 04.8.1998. He had appeared for selection for promotion to the post of Law Assistant in the year 1997, passed the written test and viva voec test and was placed on the panel. The said panel was challenged by one Smt. Seema Verma before this Tribunal, which came to be allowed on the ground that seniority marks cannot be added in general selection. He challenged the judgment of this Hon'ble Tribunal in the Hon'ble High Court, which was dismissed. He had thereafter preferred SLP before Hon'ble Supreme Court, which is still pending. Hon'ble Supreme Court has granted status quo with regard to the ad hoc promotion of the applicant No. 1 as Law Assistant. Applicant No. 2 is working as ad hoc Law Assistant from 01.02.1994. He had appeared for selection for promotion to the post of Law Assistant in 1992 and after having been declared successful in selection he was promoted as Law Assistant on adhoc basis. Applicant No. 3 is working as Law Assistant on adhoc basis with effect from 08.3.1996, having passed the written test in the selection of 1996. Respondent No. 2 had issued Notification dated 31.10.2000 for selection for promotion to the post of Law Assistants. By the said notification, six vacancies were declared out of which four were for general candidates and one each for SC and ST. Thereafter respondent No. 2 issued one more Notification dated 09.4.2001 stating that the vacancy position for the selection has been revised, taking into account the current position and that the proposed selection would now be conducted for 15 vacancies (13 unreserved, 1 SC and 1 ST ). It was further provided in the Notification dated 09.4.2001 that the candidates who have already submitted their application in response, to notification dated 31.10.2000 need not apply again. Respondent No. 2 thereafter issued one more Notification dated 23.4.2001 again amending vacancy position as 12 general, 2 SC and 2 ST. On 28.7.2001 applicants appeared for the written test conducted in pursuance of the aforementioned notifications. The applicant No. 1 made a representation dated 27.02.2002 to the respondent No. 2 regarding the various illegalities in the selection. Applicant No.1 made one more representation dated 13.3.2002 regarding the various illegalities committed in the selection. Respondent No. 2 instead of curing the illegalities pointed out by applicant No.1 in his representations, straightaway published the result of the written test by his letter dated 22.4.2002. All the three applicants were declared as failed in the written test, as they were not called for viva voce test. After publishing the result of the written test, Respondent No. 2 by his letter dated 23.4.2002 replied to applicant No. 1 that the selection has been conducted as per rules and the provisions notified by the Railway Board. After receiving the reply from Respondent No. 2 the first applicant made a detailed representation dated 27.5.2002 to Respondent No. 3 dealing with each point raised by the Respondent No. 2 in his reply. On the basis of applicant No. 1, the entire matter of selection was referred to Vigilance Department. On 10.6.2002 applicant No. 1 was called for recording his statement for vigilance investigation. The entire matter was thoroughly investigated by the Vigilance Department and after completion of vigilance inquiry, Respondent No. 3, Sr. Dy. General Manager (Law) opined that the entire selection should be quashed. But respondent No. 2 engineered a novel idea of sending the entire matter to the Railway Board for its approval. Therefore, the panel dated 01.01.2003 declared by Respondent No. 2 is absolutely illegal and void and required to be quashed and set aside as it is in violation of Railway Board Order dated 20.9.1999. There are various illegalities in the selection. As per the Indian Railway Establishment Manual, 50% of the questions asked in the written test have to be objective type question. Secondly, 10% of the questions should relate to Hindi subject. The selection is required to be finalised within a period of six months. All these provisions have been given a go-bye by Respondent No. 2 while conducting and finalising the selection. All these illegalities were pointed out to Respondent No. 2 during the pendency of the selection. Therefore, the entire selection is required to be quashed and set aside. The official respondents have filed detailed written statement contesting the claim of the applicants. It has been stated that the applicant No. 3 challenging the panel dated 01.01.2003 along with other two applicants. In fact the said applicant has also argued about the same panel and challenged it by way of OA No.49/03 which was finally dismissed vide judgment and order dated 10.4.2003. Therefore, the applicants suppressed the fact about OA 49/03 in para 7 of the OA. The applicants have taken a calculated chance in the selection process and they have failed in the written test and after completion of viva voce and also appointment of Respondents 4 to 17 as Law Assistants have filed this OA on 7.3.2003 which is legally not permissible. They have not represented against the selection and the result which was notified on 11.02.2003 and applicant No. 1 made representation only on 27,2.2003. Applicants No. 2 and 3 have never taken any objection regarding selection procedure prior to filing of this OA although they have filed OA 76/03 and 49/03 before this Tribunal for not to revert them from the post of Law Assistants. Both the O.As. were dismissed on 10.4.2003. The present OA is time barred and hence it is not within the limitation period as prescribed in Section 21 of the A.T. Act. It has also been stated that the Notification dated 09.4.2001 was issued informing all that the proposed selection will now be conducted for forming a panel of 15 suitable employes i.e. 13 unreserved, 1 SC and 1 ST and it was also mentioned in the said Notification that the employees who have already submitted their application in response to Notification dated 31.10.2000 need not apply again. Moreover, further time was also given for submitting applications to employes who have not applied earlier. Since there was a mistake in notifying the distribution of vacancies due to oversight in the Notification dated 09.4.2001, a corrigendum dated 23.4.2001 was issued stating that the vacancy distributions as 12 unreserved, 2 SC and 1 ST. The selection process actually commences or set in motion from the date of issuing of eligibility list. In this case, the eligibility list was issued on 06.6.2001. The notification informing the changes in vacancies and its distribution were issued prior to the issuing of eligibility list and as such there is no violation of the guidances of Railway Board as stated by the applicants. The letter dated 23.4.2001 was a corrigendum and not a notification and the same was in regard to rectification of the distribution of vacancies amongst unreserved SCs & STs. In DRM KTT's letter dated 22.5.2001 also, the distribution of vacancies has been shown as 12 unreserved, 2 SC & 1 ST and not as claimed by the applicants. The written test for the selection was conducted on 28.7.2001 and the same was as per the extant rules and provisions notified by Railway Board vide their letter No. E(NG) 1-98/PM1/II dated 16.11.1998. It is true that applicant No.1 made a representation dated 27.2.2002 to Respondent No. 2, but that was after the notification of result of written test and knowing that he failed in the written test. The said representation was replied on 23.4.2002. In case an employee is having any objection in the way the written test was conducted, the same has to be raised on the day of written test. Here, the applicant No.1 raised the objection long after the declaration of result of the written test which was declared on 11.2.2002 and that also after knowing that he has not passed in the written test. The applicants 2 and 3 never raised any objection in the way the written test conducted. As per the complaint made by the applicant No.1 the vigilance department have investigated the selection and finally decided to refer the issue to Railway Board for their opinion/decision. Finally Railway Board vide their letter No. E(NG)I-2002/PM1/41 dated 24.12.2002 have advised to go ahead with the selection. The selection process sets in motion from the date of eligibility test. In this case, the assessment of vacancies was revised and the said revision was notified well before the issue of eligibility list. Moreover, sufficient time was given the applicants/employees who have not responded to the earliest notification, to apply for the selection now. The post of Law Assistant is a general selection post wherein all Group 'CJ employes having five years services in Group-C and irrespective of their department where they work and also having degree in Law are eligible to apply and as such no violation of the Railway Board's rules and provisions has been made. And the selection was also approved by Railway Board. The vigilance department investigated this issue and finally referred the matter to Railway Board for their decision/ opinion. Board vide their letter dated 24.12.2002 (Annexure R5) has approved the selection proceedings and accordingly the panel was declared on 1.1.2003. The provision of 50% of objective questions in the written test is applicable only for Apex Cadre Posts in the same avenue/channel in which the staff of lower side of same channel are appearing and not applicable in the selection of general posts in which the staff of other departments are appearing like the post of Law Assistants. Railway Board vide order dated 08.3.2002 have further introduced objective type of questions of about 25% in the written test of selection for promotion to posts in the lower category also from 08.3.2002 and onwards. In this case, the written test was conducted on 28.7.2001 well before the aforesaid inclusion by Board. So far as objection related to 10% of the question related for Hindi subject is concerned, official respondents stated that in the question paper of written test held on 28.7.2001 there was a question carrying 20 marks. In the light of the true position as stated above the application is without any merit and therefore requires to be dismissed in limine.
(3.) PRIVATE respondents have also filed their written reply separately, in which almost the same facts have been narrated as are in the written reply of the official respondents. They have also contended that applicant Nos. 2 & 3 have filed OA 76/03 and 49/03 before this Tribunal challenging the letter dated 16.01.2003 related to the matter of selection and praying that they may be continued on adhoc basis in the post of Law Assistant. They have also filed Contempt Petition and this Tribunal rejected the OA as well as the CP by vide order dated 10.4.2003. Therefore, the OA is barred by principle of res judicata.;