1. In 1998, Eastern Railway published an employment notice, inter alia, inviting application for the post of nine hundred eighty two Gangman. The petitioners applied for the said post. After scrutiny, the Railways invited them to participate in the recruitment process. The petitioners were successful in such process and got themselves enlisted in a list of two thousand two hundred fifty three candidates out of nine thousand who appeared for the Physical Endurance Test (hereinafter referred to as PET).
2. The Railways received complaints with regard to irregularity. The allegations were investigated into. Ultimately, the Railways cancelled the said list that gave rise to litigation. The petitioners along with others approached the Central Administrative Tribunal, Calcutta Bench, challenging the order of cancellation dated March 30, 2001. Vide order dated August 11, 2004, the Tribunal directed the Railways to complete the process of recruitment as expeditiously as possible. By the judgment and order of the said date appearing at pages 38-50 of the petition the Tribunal declined to interfere with the order of cancellation. The Tribunal observed that once the applicants were sponsored by the Employment Exchange their candidature could not be ignored which was one of the allegations in some of the writ petitions before the Tribunal. The Tribunal also observed that the ward of serving or retired employees could also apply directly without being sponsored by the Employment Exchange and there was no reason to deny opportunity to others who had applied directly. The Tribunal also observed, once the selection had been cancelled and applications were scrutinized freshly the authority should consider all including those who could not participate in the earlier selection process in spite of interim orders passed by the Tribunal. The Tribunal, by the said judgment and order disposed of all writ petitions involving different batch of petitioners being differently circumstanced. The Tribunal, however, declined to interfere with the selection process where the petitioners could not pass the PET by observing that the Tribunal could not assess the comparative merit of the candidates being not a substitute for the selection authority. After dealing with those different batches of writ petitions having different background, the Tribunal asked the Railways to complete the selection process. By a subsequent order dated January 7, 2005, the Tribunal asked the authority to implement the earlier order within six months from the said date. By a further order dated July 29, 2005, the Tribunal once again called upon the Railways to comply with the orders and complete the exercise within six months without seeking any further extension. The Railways, ultimately, concluded the selection process that gave rise to another litigation being O.A. No.798 of 2007.
3. The facts would depict that out of nine thousand candidates two thousand two hundred fifty three were called for and listed for the first time. The PET held on December 6, 1999 was subsequently declared invalid and the said list was cancelled. The Tribunal, by the said judgment and order dated August 11, 2004, asked the Railway not to cancel any application on technical ground. Ultimately, a written test was held on March 5, 2006. Four hundred fifteen candidates were declared successful in the written test. The applicants before us became unsuccessful in the said written test.
4. The applicants contended that in course of time other vacancies occurred.
5. Hence, they should also be considered for the said post considering them as successful in the PET being listed amongst two thousand two hundred fifty three candidates. According to the petitioners, if the subsequent vacancies were considered there was no reason to deny employment to them as they were successful in PET which was the only requirement in the post of Gangman. The applicants, in course of hearing before the Tribunal, contended that originally nine hundred eighty two posts were declared vacant as per the employment notice. Subsequently, the vacancy position increased to one thousand three hundred and twelve.
6. Taking a sum total of the situation it appears that altogether sixty eight thousand one hundred and ninety five applications were received by the Railways out of which nine thousand five hundred ninety six were declared eligible to appear for the PET. Two thousand two hundred fifty three candidates became successful and shortlisted. However, such list was cancelled. Subsequently, the Tribunal directed the Railways to go ahead with the second phase of selection. Accordingly, written test was held on March 5, 2006 wherein four hundred fifteen candidates became qualified. The present petitioners were unsuccessful. Appointments were given to those out of four hundred fifteen candidates after being found them medically fit. The Railways also held a supplementary test to consider the unsuccessful candidates. In supplementary examination, one thousand six hundred seventeen candidates participated out of which a select list of six hundred thirty nine candidates were prepared and they were duly appointed after being declared medically fit. According to the Railways, the petitioners belonged to unreserved category, which was completely filled up, and the recruitment process was thus concluded in 2006. In 1999 the Railway Board changed the recruitment procedure and directed the zonal railways to go for open market recruitment. Accordingly, the Railway Recruitment Cell proceeded to fill up the subsequent vacancies as per the new policy and the unsuccessful candidates as per the earlier recruitment process could not be further considered.
7. The Tribunal considered the rival contentions and ultimately held that the applicants were not entitled to any relief. Being aggrieved, the petitioners approached this Court by filing the above petition.
CONTENTION OF THE PETITIONERS
8. Dr. Debi Prasad Pal, learned senior advocate appearing for the petitioners raised principally four issues :-
a) The post of Gangman did not have any requirement of being educated. Hence, no written test was required to be held by the Railways.
b) As per the Recruitment Rule, PET followed by the intelligent test was the appropriate procedure. Intelligent Test could not be termed as written test. Hence, the Railways must consider the petitioners for the post as they could qualify in the PET.
c) The Railways initially applied for nine hundred eighty two posts, however, proceeded to fill up subsequent vacancies. Hence, they should also be considered for further vacancies that arose in the mean time.
d) The change in the Recruitment Rule by the Railway Board in 1999 could not have any retrospective effect. Once the advertisement was published in 1998 the Recruitment Rule prevalent as on that date would be applicable in such recruitment process till it was completed.
9. To elaborate his contentions Dr. Pal contended that originally the nine hundred eighty two posts were declared vacant for which employment notice was published. The Railway considered further vacancies in such recruitment process. Hence, they should continue to do so unless the list of successful candidates exhausted. Dr. Pal further contended that the 1999 Recruitment Rule could not have any application in the instant case as was wrongly contended by the Railway.
CASES CITED
10. To support his contention Dr. Pal relied on the following decisions :-
i) 1990 Volume-I Supreme Court Cases Page-411 (P. Mahendran & Others –VS- State of Karnataka & Others)
ii) 1990 Volume-III Supreme Court Cases Page-157 (N.T. Devin Katti & Others –VS- Karnataka Public Service Commission & Others)
iii) 1998 Volume-IX Supreme Court Cases Page-223 (B.L. Gupta & Another –VS- M.C.D.)
iv) 2005 Volume-IV Supreme Court Cases Page-154 (Secretary, A.P. Public Service Commission –VS- B. Swapna & Others)
v) 2007 Volume-X Supreme Court Cases Page-627 (Sonia –VS- Oriental Insurance Co. Ltd. & Others) vi) 2009 Volume-IV Supreme Court Cases Page-555 (Mohd. Sohrab Khan –VS- Aligarh Muslim University & Others)
CONTENTION OF THE RAILWAY
11. Opposing the application, learned Additional Solicitor General contended that the Railway did not have any animosity as against the petitioners. It was true that they became successful in PET and were shortlisted. The Railway received complaints that resulted in cancellation of the said list. The Tribunal granted liberty to the Railways to continue with the recruitment process. The written examination was allowed to be conducted by the judgment and order of the Tribunal. The petitioners became unsuccessful in the first examination. They however, became successful in the supplementary examination. They could not be given employment as the unreserved quota exhausted by giving employment to the candidates who got better merit in the supplementary written test. Neither any discrimination was made by the Railways nor the Railways ignored them in preference to the others. In the mean time, the new Recruitment Rule came into force. Hence, subsequent recruitment process was conducted as per the new Recruitment Rule. He contended that the petitioners did not have any vested right to claim employment after being shortlisted considering the result of PET.
CASES CITED
12. The learned Additional Solicitor General relied upon the following decisions :-
i) 1991 Volume-III Supreme Court Cases Page-47 (Shankarsan Dash –VS- Union of India)
ii) 1997 Volume-V Supreme Court Cases Page-170 (K. Jayamohan –VS- State of Kerala and Another)
iii) All India Reporter 2004 Supreme Court Page-1724 (Bihar State Electricity Board –VS- Suresh Prasad & Others)
REPLY BY PETITIONERS
13. While giving reply Dr. Pal contended that after 1998 no advertisement was published. The appointments were given much after 1999 as per the original recruitment process. Vacancies still occurred as would appear from the letter dated August 6, 2010 handed over in Court. Hence, there was no occasion for the Railway to ignore their candidature.
OUR VIEW
14. Nine thousand and odd candidates were shortlisted and asked to participate in the recruitment process for nine hundred eighty two posts. The advertisement prescribed that the number of post might increase in case of vacancy found in the mean time. Considering such vacancies the number of post became one thousand three hundred and twelve. As per the judgment and order of the Tribunal dated August 11, 2004 recruitment process was completed in 2005 engaging four hundred and fifteen candidates being found suitable after completion of the recruitment process and after being found them medically fit. Since the required number could not be filled up a supplementary written test was held giving opportunity to the unsuccessful candidates. The petitioners also got the benefit of such supplementary written test held in 2006. Altogether six hundred thirty nine candidates were given appointment that included the unreserved quota, which was completely filled up through such process. The petitioner, although became successful in such supplementary written test, could not be accommodated for want of unreserved vacancy. The entire recruitment process, that started in 1998, was completed in 2006.
15. Dr. Pal contended that PET was the only requisite for the recruitment of Gangman. Written test was superfluous. The petitioners successfully passed PET. Hence, they were entitled to be considered for appointment. Such argument of Dr. Pal is fallacious in view of the judgment and order of the Tribunal dated August 11, 2004. By the said judgment and order the Tribunal approved the procedure for holding the written test. The petitioner accepted the said decision, participated in the selection test, after becoming unsuccessful they sat for the second time. Hence, the contention that holding of written test was illegal, was untenable. Assuming that written test was superfluous and PET was the only means of selection, admittedly the petitioner could not come within the zone of consideration for want of vacancy. It is not the case of the petitioners that the candidates having lesser merit got employment. The petitioners passed the PET, however the merit list was cancelled. The Tribunal permitted Railways to go for the next phase of selection and/or elimination. The Railways permitted the petitioners to participate in all steps. Hence, nothing could be found to be illegal or arbitrary.
16. The next contention of Dr. Pal that the petitioner should be absorbed against the subsequent vacancy is also fallacious. The recruitment was for nine hundred and eighty two posts with the rider that subsequent vacancy in the process would also be considered. Before the recruitment process started further vacancies occurred and the Railways ultimately went for filling up one thousand three hundred and twelve posts that became available as on that date. Such process was completed in 2006 upon giving appointment to six hundred thirty nine candidates. Once such process was completed, particularly the unreserved quota, question of filling up further posts would not arise. If we accept such contention it would lead to a disastrous situation. An employment notice of 1998 could not be the basis for filling up of vacancies which arose after the recruitment process started. For instance, a vacancy occurred in 2004 or 2005, in no stretch of imagination, could be filled up through a recruitment process initiated in 1998 when such vacancy did not occur at all. Candidates could only be considered for the vacancies declared through employment notice. The employment notice specified nine hundred eighty two posts with the rider that subsequent vacancies prior to the recruitment process would also be considered. During the transitional period three hundred odd vacancies arose. The Railways thus proceeded to fill up one thousand three hundred and twelve posts. Hence, no illegality was committed on that score.
17. The third submission of Dr. Pal is also fallacious. He contended that the Recruitment Rule of 1999 would not be applicable so long the recruitment process under the earlier notice was not completed. He cited decisions on that score. Such abstruct proposition of law is well-settled. However the ratio in the said decisions were sought to be misapplied. The ratio was that the existing rule as on the date of employment notice would be applicable. 1999 Recruitment Rule that provided for open recruitment, was not applied for one thousand three hundred twelve posts which became the subject matter of recruitment process. Subsequent vacancies that occurred after initiation of recruitment process of thirteen thousand eight hundred and twelve posts could only be guided by the new Recruitment Rule as those admittedly occurred after coming into force the new Recruitment Rule.
18. None of the contentions of Dr. Pal did have the legal support.
19. Let us now discuss the decisions cited at the Bar.
20. The decision in the case of P. Mahendran & Others (Supra), dealt with a situation where the Recruitment Rule was amended during continuance of the process of selection. In the decision in the case of N.T. Devin Katti & Others (Supra), the Apex Court held that the amendment would apply prospectively and appointment should be given as per the rules prevalent on the date of appointment notice. The Apex Court observed in the identical way in the case of B.L. Gupta & Another (Supra), Mohd. Sohrab Khan (Supra), Secretary, A.P. Public Service Commission (Supra) and Sonia (Supra). In short, all six cases cited by Dr. Pal consistently held that the Recruitment Rule prevalent as on the date of initiation of the recruitment process being the employment notice must be strictly followed and no amendment in the process of recruitment subsequently issued would have any retrospective effect to make it applicable in the subject recruitment process. In other case the recruitment process started as per the existing Recruitment Rule as on the date of issuance of the advertisement for nine hundred and sixty two posts. The employment notice categorically observed that number of vacancy might increase due to subsequent vacancy occurred during the transitional period meaning thereby the period between the date of publication of the notice and the date when the recruitment process would actually start considering the candidates for the posts. The subsequent Rule of 1999 would not be applicable in case of subject recruitment. However the vacancies occurred after actual initiation of the recruitment process must be filled up through a separate recruitment process as the law provides that recruitment must be done strictly as per the employment notice. The concerned employment notice did not provide for any scope to fill up subsequent vacancies that occurred after actual initiation of the recruitment process.
21. The Apex Court in the case of Shankarsan Dash (Supra), observed that even if the number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to be appointed against the existing vacancies. The decision in the case of K. Jayamohan (Supra), and Bihar State Electricity Board (Supra) clearly observed that merely the name found place in select list did not give any vested right for a candidature to claim appointment. A candidate placed in the Waiting List did not acquire any absolute right for appointment in a subsequent vacancy.
22. Considering the factual matrix and the law decided by the Apex Court discussed above, we find that the petitioners were given adequate opportunity to participate in the selection process. Neither the Railway committed any illegality nor they could be accused of being arbitrary. No malafide was found in the selection process. Hence, the Tribunal rightly rejected the contentions of the petitioners and dismissed their petition.
23. We do not find any scope of interference.
RESULT
24. The petition, thus fails and is hereby dismissed without however any order as to costs.
DIRECTION
25. Urgent Photostat copy will be given to the parties, if applied for.