A. K. Singh vs General Manager And Others

S. N. Terdal, Member (J)

The applicant joined Public Relation office in the Northern Railway in the year 2000 and has been working as Chief Publicity Inspect or (CPI) since 2010. The respondents held the selection for the post of Public Relation Officer (PRO) in 2015 for the assessment year 01.06.2015 to 31.05.2017, however, the applicant was not selected for the same. Subsequently, the respondents decided to hold selection to form panel for promotion from Group-C to Group-B for filing up vacancies of PRO for the assessment year 01.05.2018 to 30.04.2020. Eligible Group - C employees (Publicity Inspectors/Photographers) were called to appear in the written test vide letter dated 15.06.2018. The applicant was at Sl. No. 01 in order of seniority and the Respondent No. 02 was at Sl. No. 04. All the 04 candidates called for the written test were CPI. The written test was held on 10.07.2018. Two out of four candidates did not appear in the written examination and only the applicant and Respondent No. 02 appeared for the same.

The result of the written test was declared on 23.07.2018 for the post of PRO and only one candidate i.e. Respondent No. 02 qualified in the written test. The applicant submits that he has performed very well in the written test and despite that he was not declared qualified. He has also levelled a number of allegations against Respondent No. 02 including her ineligibility in terms of her appointment, qualification, experience etc. Against the written test, the applicant had made a representation dated 25.07.2018 addressed to the Respondent No. 01. The Respondent No. 01 replied to his representation dated 25.07.2018 and clarified that the matter has been examined and that he did not qualify in the written test and, therefore, not being considered for Group-B post of PRO. The applicant is aggrieved with the aforementioned actions of the respondents and by the order issued by them dated 23.07.2018, declaring the result of the written examination, has filed the present OA, seeking the following relief(s):-

"(i) Pass appropriate orders declaring the examination conducted by the Respondent No. 1 for promotion from Group C to Group B to the post of Public Relation Officer (PRO)/ Northern Railway without specifying the minimum qualifying marks and specifying the name of Respondent No. 2 as eligible candidate as null and void-ab-initio and quash communication dated 15.06.2018 on account of aforesaid facts.

(ii) Pass appropriate orders for setting aside and quashing communication dated 23.07.2018 by way of which Respondent No. 2 was declared successful in the examination.

(iii) Pass appropriate orders declaring that Respondent No. 2 was not eligible candidate for promotion from Group C to Group B to the post of Public Relation Officer (PRO)/ Northern Railway.

(iv) Pass any other orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case."

The applicant has also sought interim relief in terms of restraining the respondents from proceeding further in pursuance of the result dated 23.07.2018, in respect of promotion from Group-C to Group-B. The Tribunal heard the applicant and vide order dated 02.08.2018 directed the respondents to maintain status quo with regard to promotion to the post of PRO. The applicant also contends that although in the previous selection, he was not selected being junior, he was called to appear in the written examination held on 10.07.2018 vide respondents letter dated 15.06.2018. He is, however, aggrieved by the fact that the respondents have declared the result of the written examination vide letter dated 23.07.2018 and only one candidate i.e. Respondent No. 02 has been declared as qualified in the written test. He has challenged the result declared vide letter dated 23.07.2018 on various grounds including his own performance in the written examination and ineligibility of the Respondent No. 02. In support of his argument, he has referred to the Master Circular Notification No. 68 for selection from Group-C to Group-B post issued by Railway Board, the appointment letter of Respondent No. 02 and his representation to the Respondent No. 01 dated 25.07.2018 and 26.07.2018.

Respondents in their counter affidavit have opposed the OA submitting that in terms of letter dated 15.06.2018, the respondents decided to hold selection and to form panel for promotion from Group-C to Group-B for filling up one vacancy of PRO/Northern Railway for the assessment period 01.05.2018 to 30.04.2020, which is 100% quota selection. Four eligible Group-C employees (Publicity Inspectors/Photographers) were called to appear in the written test. Two out of these did not appear in the written test. The result of the written test was declared vide office letter dated 23.07.2018 and Respondent No. 02 was declared qualified. The applicant failed to secure minimum qualifying marks in the written test and thus could not qualify in the same. It is also clarified by the respondents that the Public Relations cadre does not fall in the ambit of organized service, hence, the Group -B posts in the cadre are filled on the basis of seniority of the staff concerned i.e Group-C employees of Public Relations cadre who have rendered 03 years or more service in the grade, the minimum of which is 5000/- (GP Rs. 4200/-) or higher grade. It is submitted that in terms of instructions contained in Para-6.2.1 of Master Circular No. 68 for selection to the Group-B posts, Group - C employee working in Grade, the minimum of which is Rupees 5000/ (GP Rs. 4200/- Pay Matrix Level - 06 as per 7th CPC) and in higher Group - C grades are eligible for consideration provided they have rendered not less than three years of non -fortuitous service in the grade whereas for categories covered in 6.3.1 the requirement is 05 years which is not applicable in the present selection. They have, further, advised that in 2015 a total number of 08 Group-C employees were called for similar examination of PRO in order of seniority for the assessment period 01.06.2015 to 31.05.2017. As a result of the written test held on 28.08.2015 followed by viva-voce conducted on 07.12.2015, two candidates were placed under provisional panel declared vide office letter dated 09.12.2015. The applicant being lower down in the seniority failed to find place in the said provisional panel. It is further submitted that in the written examination held on 10.07.2018 the Respondent No. 02 had secured more than 60 % marks and was declared qualified vide letter dated 23.07.2018 whereas the applicant failed to secure minimum qualifying marks and hence was declared failed. It is also stated that Respondent No. 02 possessed prescribed qualification and eligibility to appear in the examination and that at no point the applicant had challenged her candidature for written examination in which he also appeared. It is only after not being able to qualify the same he has challenged the candidature of Respondent No. 02 and her eligibility. Thus, the claims made are not based on facts and deserve to be rejected. The applicant has relied upon judgments of Hon'ble Supreme Court in Rupa Rani Rakshit and Ors. Vs. Jharkhand Gramin Bank and Ors. (AIR 2010 SC 787), Ajit Kr. Bhuyan and Others Vs. Debajit and Others (MANU/SC/1190/2018), Raj Kumar and Ors. Vs. Shakti Raj and Ors.(AIR 1997 SC 2110), judgment of Hon'ble Allahabad High Court (Lucknow Bench) in Dharmender Kumar and Ors. Vs. Abhishek Kumar and Ors. (MANU/UP/0527/2017) and judgment of Chandigarh Bench of this Tribunal in Rajasri Bhattacharya Vs. Union of India (Manu/CA/0699/2014). The respondents have also relied upon the judgment of Hon'ble Supreme Court in Chandra Prakash Tiwari and Ors vs. Shakuntala Shukla And Ors (2002) 6 SCC, Om Prakash Shukla vs. Akhilesh Kumar Shukla and Ors., [1986] Supp. SCC 285), Dalpat Abasaheb Solunke and Others vs. Dr. B. S. Mahajan & Ors. (1990-Scc-1-305), UPSC vs. Hiranyalal Dev & Ors. reported in AIR 1988 SC 1069 and Anil Katyar Vs. Union of India reported in 1997 (1) SCC 280). The respondents have also submitted a copy of the Gazette Notification dated 02.07.1982 issued by the Railway Board, regarding selection of PRO.

We heard Mr. Manoj Shete, learned counsel for the applicant and Mr. V. S. R. Krishna and Mr. Shailendra Tiwari and Mr. Somadh Kushek, learned counsel for the respondents.

The applicant is aggrieved by the fact that he did not qualify in the written test conducted by the respondents for selection for the post of PRO/NR for the assessment period 01.05.2018 to 30.04.2020 and, therefore, seeks the Tribunal to pass appropriate orders declaring this examination conducted by Respondent No. 01 to be null and void as it is without specifying the minimum qualifying marks and also as this specifically mentioned the Respondent No. 02 as an eligible candidate. He also seeks quashing of the letter dated 15.06.2018. The applicant has been working in the Public Relation Office of Northern Railway as Publicity Inspector and later on as CPI. The respondents have been holding selection for promotion from Group-C to Group-B to the post of PRO. In 2015 also, the respondents had called 08 candidates to appear in the main examination. The written test was followed by viva-voce, however, the applicant was not selected. Again the respondents vide their letter dated 15.06.2018 decided to hold selection for promotion from Group-C to Group-B to the post of PRO for the assessment period 01.05.2018 to 30.04.2020. The written test was also scheduled on 10.07.2018. Respondents also published the list of 04 eligible group-C employees in order of seniority to appear for the written test. The applicant was shown at S. No.01 and the Respondent No. 02 at S. No. 04. The written test took place on 10.07.2018. However, only the applicant and respondent No. 02 took part in the written examination. The respondents declared the result of the written examination vide letter dated 23.07.2018. As per the written test result only Respondent No. 02 qualified. This was only the result of the written examination and the viva-voce has yet not taken place. The applicant appeared in the written examination and only after having been declared not qualified in the written examination, he challenged the result dated 23.07.2018 by making representations to the respondents and immediately, thereafter, by filing this OA. On 02.08.2018, the Tribunal directed the respondents to maintain status quo with regard to promotion to the post of PRO. Thus, the selection process for the promotion from Group- C to Group-B to the post of PRO has not yet been completed and the selection process in the midway has been challenged by the applicant through this OA. The applicant has argued that the selection is through Limited Departmental Competitive Examination (LDCE) and that the candidate must have rendered not less than 05 years of non-fortuitous service. He has also claimed that as the Respondent No. 02 does not have five years of non-fortuitous service, she is not eligible. Respondents have categorically denied the averments stating that this being a small isolated cadre of Public Relations, the same is governed under para 6.2.1 of the Master Circular 68, which reads as under:-

" 6.2.1 for the selection Group ' C' employees working in grade the minimum of which is Rs. 5000/- and in higher group 'C' grades will be eligible for consideration provided they have rendered not less than three years of non-fortuitous service in the grade."

and not LDCE i.e. para 6.3.1, which requires 05 years of non fortuitous service in the grade.

During the hearing, learned counsel for the respondents submitted the Railway Board notification dated 02.07.1982 which provides Recruitment Rules for Public Relation Department for various posts of Chief Public Relation Officers, Senior Public Relation Officer and PRO. For the PRO, in case of Promotion, it is clearly stated that, the vacancies shall be filled by promotion through selection (which will include ordinarily a written test and a viva-voce test) of the under mentioned Group 'C' staff working in the Public Relations Organizations on a regular basis provided that they have rendered a minimum of 3 years non fortuitous service and have reached the stage of Rs. 560. (i) Chief Publicity/Advertising Inspector, (ii) Senior Publicity/Advertising Inspector, (iii) Publicity/Advertising Inspector, (iv) Personal Assistant-Chief Public Relations Officer, (v) Projectionist, (vi) Assistant Journalist, (vii) Chief Photographer, (viii) Senior Photographer.

The above RRs duly cover the qualified candidate in the written examination as being eligible.

Learned counsel for the applicant also submitted that the Respondent No. 02 does not possess the requisite qualification in terms of Diploma in PublicRelation/journalism/Mass Communication from any recognized institution. The respondents have categorically stated that the Respondent No. 02 fulfills the prescribed conditions and possesses the prescribed qualification i.e. Post Graduate Diploma in Mass Communication from IGNOU. Documents in this connection have also been submitted as part of the additional document, confirming the same. The applicant contention that he is unaware of the qualifying marks has also been clarified by the respondents that the minimum qualifying marks were 60% in the written test which the applicant did not secure and the Respondent No.02 had secured more than 60% qualifying marks in the written examination. It is evident that the applicant has based his entire case on being senior to Respondent No. 02, who has been declared qualified in the written test. The applicant's seniority was never in question as vide letter dated 15.06.2018 also he was placed at Sl. No. 01 in terms of eligibility to appear in the written test. In the past also, in 2015, he was given a chance to appear in the written examination and he did not qualify. This time he appeared in the written examination which was for selection for promotion form Group-C to Group-B for the post of PRO and did not qualify the written examination.

It is also pertinent to mention that the role of the Tribunal is to see if any process of selection has been vitiated or ineligibility has been established. Even there, the role of Courts and Tribunals is limited. The Hon'ble Supreme Court in Chandra Prakash Tiwari's case held that "It is to be noticed at this juncture that while the doctrine of estoppel by conduct may not have any application but that does not bar a contention as regards the right to challenge an appointment upon due participation at the interview/selection. It is a remedy which stands barred and it is in this perspective in Om Parkash Shukla (Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors., [1986] Supp. SCC 285) a Three Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a Petition challenging the said examination would not arise."

It is also a fact that the applicant did not raise any objection to the process of examination when the respondents issued order dated 15.06.2018 calling the eligible candidates for the written examination to be held on 10.07.2018. He also appeared in the written examination and when vide order dated 23.07.2018, he came to know that he did not qualify in the written examination, he challenged the result of the Respondent No. 02, who had qualified in the written examination. This was also in some way pre-mature plea as the matter of selection had not yet been completed. As an interim order by this Tribunal, the status quo was required to be maintained.

In view of the above mentioned, we do not find the claim of the applicant tenable and the action on the part of the respondents to be illegal or suffering from any infirmity. We are, therefore, of the view that this OA is devoid of any merit and the same is, accordingly, dismissed. Interim relief granted by the Tribunal vide order dated 02.08.2018 regarding status quo to be maintained stands vacated. There shall be no order as to costs.