IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 6850 of 2016 Nitish Kumar Srivastava .... .... .... Petitioner Versus 1. The Union of India through the Chairman, Railway Recruitment Board, Chutia, Ranchi 2. The Secretary, Railway Recruitment Board, Chutia, Ranchi 3. The Chief Personnel Officer, East Central Railway, Hazipur (Bihar) .... .... .... Respondents CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH HON’BLE MR. JUSTICE B. B. MANGALMURTI For the Petitioner : Mr. Anil Kumar Sinha, Sr. Advocate Mr. Abhishek Sinha, Advocate For the Respondents : Mr. Gautam Rakesh, Advocate 07/12.07.2017 Heard learned senior counsel for the petitioner and the respondents.
2. The writ petitioner was the applicant in Original Application no.051/00184/2014 and Review Application No.051/00005 of 2016 from which the impugned order dated 13th April, 2016 and 17th May, 2016 arises.
3. Briefly stated the undisputed facts, as born on record are narrated hereunder:- On 29th March, 2008, notification was issued by the Railway Recruitment Board, Ranchi inviting application for filling up vacancies on the post of Section Engineer (Signal) and Section Engineer (Telecommunication). Four vacancies for the post of Section Engineer (Signal) and five for that of Section Engineer (Telecommunication) were advertised. Applicant appeared in the examination and was called for verification of documents vide Annexure-3. The note to the call letter indicated that candidate is being called for verification of documents and genuineness of candidature provisionally as wait listed under 20% additional candidates over and above the number of vacancies. This is primarily to avoid shortfall in the panel due to absentism/failure in vision test etc., if any. It was further indicated that mere calling for verification of documents, genuineness does not in any way entitle the candidate empanelled/employment in the Railways. The panel was published on 9th February, 2009 which contained the names of nine candidates found suitable on the basis of their merit position. The applicant was not amongst nine candidates. Applicant for the first time made representation before the Chairman, Railway Recruitment Board, Chuita, Ranchi on 10th May, 2012 2 (Annexure-6) stating that after the document verification on 7th January, 2009 where he was considered as waiting list no.1., he has been waiting for his chance to be called for. He sought to know the status of his claim. He further represented on 24th July, 2012 to the Chief Personnel Officer, East Central Railway, Headquarter, Hazipur again seeking intimation as to whether some of the four candidates did not join pursuant to their selection. In that eventuality, he may be tended the appointment letter as he is at serial no.1 of the waiting list. Thereafter, under RTI he got information vide letter dated 27th June, 2013 that roll number of the applicant finds place in the unreserved category at the top of 30% additional candidates in list. Petitioner moved the Central Administrative Tribunal, Allahabad Bench in O.A. No.689 of 2013 seeking a direction upon respondents to appoint him on the post of Section Engineer (Signal) or in the branch of Telecommunication pursuant to the advertisement dated 29th March, 2008. The said application was dismissed as not maintainable by order dated 19th May, 2014 (Annexure-8) as no cause of action either in whole or in part arose within the jurisdiction of the learned CAT Bench at Allahabad. However, in Review Application No.330/00026 of 2014, the learned Central Administrative Tribunal at Allahabad by order dated 5th August, 2014 (Annexure-9) allowed liberty to the applicant to seek legal remedies before the tribunal/courts having jurisdiction without any prejudice arising out of the said order. Petitioner thereafter approached the learned Central Administrative Tribunal, Patna Bench at Ranchi in the instant O.A. seeking writ/order or direction in the nature of mandamus calling for the records of selection including the wait list together with panel and the number of vacancies which remained unfilled and further for direction upon the respondents to issue offer of appointment to the petitioner on the post of Section Engineer (Signal) or Section Engineer (Telecommunication), pursuant to the recruitment notification dated 29th March, 2008 against one of such unfilled vacancies; petitioner being at the top of the wait list.
4. The respondents appeared and contested the case. They took the categorical plea that in terms of the Railway Board letter dated 8th January, 2003 (Annexure-10 to the present writ application), no request 3 was made by the C.P.O. in case of non-reporting of the empanelled candidates to the concerned Railway Recruitment Board, within the currency of the panel. In the instant case, currency of the panel of non-reported candidates had expired. Hence, no replacement panel was called from the Railway Recruitment Board, Ranchi. They further pleaded that replacement panel can be asked for within the currency of the panel and no legal right accrued to the petitioner after expiry of the panel to seek appointment from the said vacancies remaining, due to non- joining of the selected candidates.
5. The learned Tribunal was of the opinion that no substantive right has accrued in favour of the applicant. Had the applicant approached the tribunal within one year of the currency of the panel, the matter could have been approved in a different perspective. The Railway was bound to give appointment to wait listed candidates, if during the currency of the panel, the selected candidates do not report for duty. Such a case is not permissible after expiry of currency of the panel. Therefore, no direction could be issued to the Railways in respect of the recruitment process initiated in 2008-09 in 2016 as the vacancies must have exhausted since long and rolled over to the subsequent year of the recruitment. The original application was accordingly dismissed.
6. The Review application preferred by the applicant was also dismissed as being misconceived holding that scope of review is very limited and there are no apparent errors on the record. That is how the applicant has approached this Court.
7. Learned senior counsel for the petitioner has referred to the letter dated 8th January, 2003 (Annexure-10) issued by the Railway Recruitment Board, in support of his submission that a duty was cast upon the employer-Railways to seek fresh replacement panel from the list of wait listed candidates within the currency of panel due to non- joining/non-reporting of any of selected candidates. Learned counsel has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Inturi Rama Rao Versus Union of India & Anr. in W.P.(C) No.202 of 2013 dated 23rd September, 2014 (Annexure-11), State of Jammu & Kashmir & Ors. Versus Sat Pal dated 5th February, 2013 4 (Annexure-12 to the writ petition) reported in (2013) 11 SCC737 in the case of Director, SCTI For Medical Science & Technology & Anr. Versus M. Pushkaran reported in (2008) 1 SCC448 Para 12, 14, 15 thereof, and also R.S. Mittal Versus Union of India reported in 1995 Supp (2) SCC230 Para 10-12. Learned senior counsel for the petitioner has vehemently submitted that when the selected candidates do not report or join for duty, there is legal duty cast upon the employer to call for the candidates from the waiting list. The wait list panel does not get exhausted, if such duty is not exercised. The employer has to give valid reasons for non-calling the wait listed candidates and offering them appointment in such cases. Relying upon the judgment rendered by the Apex Court in the case of Sat Pal (supra), it is submitted that in such eventuality the date of filing of the representation by the parties concerned and/or the date on which the competent authority chose to fill up the vacancies is of no consequence whatsoever. The only relevant date is the date of arising of the vacancies. Like in the said case, in the present matter also, the respondent choose to call the selected candidates for filling up the vacancies. Therefore, it is not a case that the competent authority had decided not to fill up available vacancies despite the availability of the candidates in the waiting list. This is also not a case where the applicant/petitioner is seeking appointment against vacancy over and above the post for which the process of selection/recruitment was conducted. The respondents have also through their counter affidavit not stated clearly that in the recruitment notices issued thereafter in the year 2010, 2014 & 2015 (statement made in Para 22 of the counter affidavit) any appointment has been made. In such circumstances, the case of the writ petitioner requires consideration against the vacancies notified in the recruitment process initiated in the year 2008. Otherwise, a valuable legal right of the applicant/writ petitioner would be defeated. Reference is also made to the non-joining of one Kumari Indu Sinha as per Annexure-15, letter dated 4th June, 2009 enclosed to the rejoinder.
8. Learned counsel for the respondents has also filed a counter affidavit sworn by one Surendra Toppo said to have been authorized to represent the respondents in the present petition. It is the case of the 5 respondent that the petitioner did not acquire a legal right to be appointed on the post left vacant after expiry of the panel due to non-joining of the selected candidates. Petitioner was not an empanelled candidates against the CEN No.01/2008. In terms of Railway Board's Circular dated 25th July, 2008, the number of candidate to be called for document verification shall be 30% over and above the number of vacancies. This provision was introduced vide Circular No.RRCB082006 with the condition that the call letter should clearly indicate the purpose of calling the additional candidates over and above the number of vacancies at the time of document verification primarily to avoid shortfall in the panel. Merely calling a candidate for document verification/vision test etc. does not, in any way entitle him to an appointment in the Railways. Even where the number of candidates available after document verification exceeds the number of vacancies, the panel sent by R.R.B. to C.P.O. shall be equal to number of vacancies only. In case, the C.P.O. after giving stipulated joining time to the selected candidates certifies that certain number of candidates have not turned up within the specified period, a panel equal to the number of candidates finally not turning up for taking appointment will be supplied by R.R.B. to C.P.O. In the instant case no demand for replacement panel was received from C.P.O., East Central Railway. As per the Board's letter no. E(RRB)200/13/3 of 8th January, 2003 replacement panel can be asked for within the currency of the panel. The panel stood expired on 31st March, 2010 reckoning one year from the date of its issuance i.e. 31st March, 2009. According to the respondents, after 2008, three recruitment notices have been issued and panels were finalized vide CEN No.05/2010, 02/2014 & 01/2015. Even if few vacancies could not be filled up due to non turning up of the selected candidates, the said vacancy must have been added to CEN No.05/2010. Learned counsel for the respondents, therefore, submits that impugned order does not suffer from any errors of law or fact. The writ petitioner has no legally sustainable right to seek a mandamus for his appointment under the recruitment exercise of 2008, the panel of which has expired in March, 2010. He had raised his grievance by way of a representation only vide Annexures- 6 & 7 of 10th May, 2012 and 24th July, 2012 6 respectively for the first time.
9. We have considered the submissions of counsel for the parties and gone through the relevant materials on record and also the judgment cited at the Bar.
10. The conspicuous facts of the case as borne out from the narrative above shows that a recruitment exercise was initiated on 29th March, 2008 for appointment to the post of Section Engineer (Signal) and Section Engineer (Telecommunication) against four and five vacancies respectively. The panel of selected candidates was prepared and published on 9th February, 2009 and the balance panel was published on 12th February, 2009 and 31st March, 2009 (as per statement made in Para 13 of the counter affidavit of the respondents). It is not in dispute that within one year period of the life of the panel i.e. 31st March, 2010 no claim for appointment was raised by the writ petitioner, even though certain selected candidates did not report for joining. We may usefully reproduce the Circular No.E(RRB)/2002/13/3 dated 8th January, 2003 (Annexure-10) relied upon by the petitioner for appreciating the contention of the parties. Board have decided that replacement panel can be asked for by the Railway within the currency of the panel i.e. upto one year, in normal cases and upto two years if the currency of the panel has already been extended by another year by the General Manager of the Railway personally. The Railway should ensure operation of the replacement panel during the currency of the panel or latest upto three months of the expiry of the panel.
11. Perusal thereof, makes it clear that replacement panel can be asked for by the Railway within the currency of the panel i.e. upto one year in normal cases and upto two years if the currency of the panel has already been extended by another year by the General Manager of the Railways. The Railway should ensure operation of the replacement panel during the currency of the panel or latest upto three months of the expiry of the panel. We are also conscious of the legal position in this regard rendered by the Hon'ble Supreme Court in the case of Shankarsan Dash Versus Union of India reported in (1991) 3 SCC47quoted in the case of M. Pushkaran (supra) at Para 12, relied upon by the petitioner. 7 12. The principle of law laid down therein postulates that it is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.
13. In the case of R.S. Mittal (supra) also relied upon by the petitioner, it is again reiterated that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. In the case of State of Jammu & Kashmir & Ors. Versus Sat Pal (supra) also referred to at Para 14 of the report in the case of M. Pushkaran (supra), the Hon'ble Supreme Court while reiterating the proposition of law in that regard has also observed that once a selection exercise is undertaken, the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. There is an obligation upon the Government to act fairly.
14. The factual matrix of the instant case reveals that petitioner never choose to raise a cause of action during life of the panel. He for the first time raised his grievances through a representation made on 10th May, 2012 (Annexure-6) and Annexure-7 dated 24th July, 2012. It was finally in the year 2014 that the present original application was filed before the learned Central Administrative Tribunal, Patna Bench at Ranchi in respect of the aforesaid grievance. By that time not only the panel had 8 expired but subsequent recruitment exercise had been undertaken in the year 2010, 2014 also and in the year 2015 as well. The Railway Recruitment Board has also prepared the panel of candidates under such recruitment exercise.
15. We may also deal with the contentions of the petitioner, on the basis of the judgment rendered by the Apex Court in the case of Inturi Rama Rao (supra). The instant judgment arises out of a writ petition under Article 32 of Constitution of India. It related to the appointment of certain Accountant Members and Judicial Members to the Income Tax Appellate Tribunal under advertisement dated 21st January, 2005. The writ petitioner Inturi Rama Rao was placed at serial no.2 of the waiting list for appointment as Accountant Member. Litigation ensued in the nature of original application before the Central Administrative Tribunal, Hyderabad which were transferred to the Principal Bench of C.A.T., New Delhi. The matter reached to the Apex Court in Special Leave Petition (Civil) Nos.13606-13608 of 2009 which were converted in Civil Appeal Nos. 6567-6569 of 2010 after the Delhi High Court affirmed the view of the learned C.A.T., Principal Bench at New Delhi. The appeals were allowed by order dated 17th November, 2011. The Review and Curative petitions filed by the writ petitioner-respondent in Civil Appeals was also dismissed. In the judgment dated 17th November, 2011 passed by the Apex Court in Civil Appeal Nos.6567-6569 of 2010, the Apex Court accepted the contentions made by the Union of India that it would be making further appointments only after amendment of the rules which contemplated mainly to the eligibility of the candidates. The said amendment to the Rules were not effected till Writ Petition (Civil) No.202 of 2013 was decided. The Selection process was initiated in the year 2013 on the basis of the unamended Rules. In these circumstances, the Hon'ble Supreme Court came to the opinion that if persons eligible under the then existing Rules which were in force, even on that date were to be considered for appointment, surely, the writ petitioner, who was a wait listed candidate would also have to be considered for appointment by consideration of his entitlement for the appointment as in the year 2007. When the appointments on the main list were made and the two 9 vacancies arose giving rise to the issue of operation of the waiting list. Therefore, a direction was issued upon the respondent-Union of India to consider the case of the writ petitioner for appointment on the basis of his position in the waiting list. The aforesaid facts of the case, therefore, leave no room of doubt that there had been a series of litigations relating to the claim of the writ petitioner-Inturi Rama Rao in the matter of appointment as a Member Accountant in the Income Tax Appellate Tribunal and that there was an undertaking by the Union of India that it would be making further appointments only after amendment of the Rules. In such circumstances, the Hon'ble Supreme Court issued the direction for appointment of the said petitioner on the basis of his position in the waiting list against one of the two vacancies that had arisen due to non grant of vigilance clearance to two of the candidates in the merit list. The facts of the present case are however different as the writ petitioner for the first time raised his cause of action in May, 2012 after the expiry of the panel on 31st March, 2010.
16. We now deem it necessary to consider the submissions advanced on behalf of the petitioner relying upon the judgment rendered by the Apex Court in the case of Sat Pal (supra). On perusal of the facts of the case as born out from the judgment, it is apparent from reading of Para 5 thereof that the claim of the said petitioner for appointment as Junior Engineer (Civil) Grade-II arose during the validity of the select list/wait list. In such circumstance, the Apex Court held at Para 8 as under:- “In view of the factual position noticed hereinabove, the reason indicated by the appellants in declining the claim of respondent Sat Pal for appointment out of the waiting list is clearly unjustified. A waiting list would start to operate only after the posts for which the recruitment is conducted, have been completed. A waiting list would commence to operate, when offers of appointment have been issued to those emerging on the top of the merit list. The existence of a waiting list, allows room to the appointing authority to fill up vacancies which arise during the subsistence of the waiting list. A waiting list commences to operate, after the vacancies for which the recruitment process has been conducted have been filled up. In the instant controversy the aforesaid situation for operating the waiting list had not arisen, because one of the posts of Junior Engineer (Civil) Grade-II for which the recruitment process was conducted was actually never filled up. For the reason that Trilok Nath had not 10 assumed charge, one of the posts for which the process of recruitment was conducted, had remained vacant. That apart, even if it is assumed for arguments sake, that all the posts for which the process of selection was conducted were duly filled up, it cannot be disputed that Trilok Nath who had participated in the same selection process as the respondent herein, was offered appointment against the post of Junior Engineer (Civil) Grade-II on 22.04.2008. The aforesaid offer was made, consequent upon his selection in the said process of recruitment. The validity of the waiting list, in the facts of this case, has to be determined with reference to 22.04.2008, because the vacancy was offered to Triolk Nath on 22.04.2008. It is the said vacancy, for which the respondent had approached the High Court. As against the aforesaid, it is the acknowledged position recorded by the appellants in the impugned order dated 23.08.2011 (extracted above), that the waiting list was valid till May, 2008. If Trilok Nath was found eligible for appointment against the vacancy in question out of the same waiting list, the respondent herein would be equally eligible for appointment against the said vacancy. This would be the unquestionable legal position, in so far as the present controversy is concerned. The date of filing of the representation by the parties concerned and/or the date on which the competent authority chooses to fill up the vacancy in question, is of no consequence whatsoever. The only relevant date is the date of arising of the vacancy. It would be a different legal proposition, if the appointing authority decides not to fill up an available vacancy, despite the availability of candidates on the waiting list. The offer made to Trilok Nath on 22.04.2008 by itself, leads to the inference that the vacancy under reference arose within the period of one year, i.e., during the period of validity of the waiting list postulated by the rules. The offer of the vacancy to Trilok Nath, negates the proposition posed above i.e., the desire of the employer not to fill up the vacancy. Herein, the appellants wished to fill up the vacancy under reference. Moreover, this is not a case where the respondent was seeking appointment against a vacancy, over and above the posts for which the process of selection/recruitment was conducted. Based on the aforesaid inference, we have no hesitation in concluding that the appellants ought to have appointed the respondent Sat Pal, against the vacancy which was offered to Trilok Nath. (underline supplied to give emphasis, not part of the original text) 17. From the opinion of the Apex Court, it is clear that a wait list would commence to operate, when offers of appointment have been issued to those emerging on the top of the merit list. The existence of a waiting list, allows room to the appointing authority to fill up vacancies 11 which arise during the subsistence of the waiting list. A wait list commences to operate, after the vacancies for which the recruitment process has been conducted have been filled up. In the case of Sat Pal, the selected candidate who was offered appointment on 22nd April, 2008 within the validity of the panel did not turn up for joining. The respondents therein raised his claim for being appointed during the life of the panel which was valid till May, 2008. In that context, the action of the State of Jammu & Kashmir in pursuing with an unnecessary litigation was seriously deprecated by the Apex Court. Accordingly, the appellants State of Jammu & Kashmir were directed to appoint the respondent Sat Pal against the post of Junior Engineer (Civil) Grade-II.
18. The ratio of instant judgment, therefore, does not apply to the case of the present petitioner. The cause of action of a candidate enlisted in the wait list panel remains alive only till subsistence of the panel. The cause of action cannot be legally sustained after expiry of the validity of the panel. In those circumstances, the learned Central Administrative Tribunal has rightly held that had the applicant approached the tribunal within currency of the panel, the matter could have been approved in a different perspective.
19. The entire discussion made hereinabove, therefore, leads to the only conclusion that the petitioner did not have a legally sustainable cause of action to seek a mandamus for his appointment on the post of Section Engineer (Signal or Telecommunication) under the recruitment exercise held in the year 2008, the panel of which expired on 31st March, 2010 itself. We, therefore, do not find any errors of law or fact in the impugned orders calling for interference under Article 226 of the Constitution of India.
20. Accordingly, the writ petition is dismissed. (Aparesh Kumar Singh, J.) (B.B.Mangalmurti, J.) Anit/RP