P. Lakshmana Rao and Others vs Union of India (UOI) and Others

S.R. Nayak, J.—The petitioners 15 in number being aggrieved by the order of the Central Administrative Tribunal, Hyderabad Bench dated 7.6.1999 passed in O.A. No.861/99 have presented this writ petition assailing the validity and legality of the same.

The 2nd respondent issued a notification No. WPT/5/G.Man/GD/CMR/98, dated 9.5.1998 calling for applications for recruitment to the post of Gangman in the Scale of Pay of Rs. 2610-3540 in Group D (Fresh Faces) in the Civil Engineering Department of Waltair Division, South Eastern Railway to fill up 382 posts of Gangmen. In response to that notification, the petitioners and others totally numbering 2493 applied for the posts. In terms of the recruitment rules, written and physical test were conducted by the recruiting agency on 10.3.1999 and 11.3.1999. When the matter stood thus, the Divisional Railway Manger, the 2nd respondent again issued letter No. WPT/5/G.MAN/GROUP ''D''/OMR /98, dated 13.5.1999, produced before the Tribunal as Annexure-2 calling upon the petitioners and some others totalling 50, to appear for fresh physical test to be conducted on 20.5.1999 at Sersa Railway Ground, Visakhapatnam. It appears that subsequently the date for conducting the physical test was postponed to 29.5.1999 and the physical test was conducted on that date. The petitioners herein did not appear for the physical test conducted by the 2nd respondent on 29.5.1999, instead, they submitted a representation to the 2nd respondent on 25.5.1999 informing the 2nd respondent that they intended to approach the learned Tribunal with their grievance against the action of the 2nd respondent in conducting physical fitness test de novo. Accordingly, subsequently the petitioners instituted O.A. No.861/1999 in the learned Tribunal assailing the validity of the letter of the 2nd respondent dated 13.5.1999 and seeking a declaration that the action of the 2nd respondent in ordering re-physical test as illegal, arbitrary, without jurisdiction and for a further declaration that the physical test conducted earlier on 10.3.1999 and 11.3.1999 as valid and for a consequential direction to the respondents to cause issue of call letters to the applicants for viva-voce test etc. Opposing the application, it was contended before the Tribunal on behalf of the respondent authorities that the physical test conducted on 10.3.1999 & 11.3.1999 was faulty. The Tribunal disposed of that application with the following directions :

"In view of the above the following direction is given:

The re-physical test has to be conducted by a team consisting 2 doctors who are not associated with the physical endurance test held earlier. A notice of at least 7 days should be given to the applicants before calling them to the re-physical test in pursuance of the above direction. If the applicants pass the re-physical test in pursuance of the above direction their cases for appointment of Gangman should be considered in accordance with the law provided they fulfill all other conditions. Till such time, the physical endurance test of the applicants once again is over, 15 posts of Gangman out of 382 mentioned in the notification should be kept vacant."

Assailing the impugned order of the 2nd respondent, dated 13.5.1999 and the validity of the order of the learned Tribunal dated 7.6.1999, learned counsel for the petitioners would vehemently contend that the petitioners were alone picked and chosen for hostile discrimination, whereas admittedly the 2nd respondent received applications for the post of Gangman from as many as 2493 applicants. The learned counsel would maintain that if there was a mistake, error or some flaw in conducting the physical test on 10.3.1999 and 11.3.1999, in all fairness, the 2nd respondent ought to have subjected all the applicants to the post for re-test and the invidious action taken by the 2nd respondent in asking only the petitioners and few others totalling 50 to reappear for the physical test de novo tantamounts to an invidious discrimination and violative of Article 14 of the Constitution.

In the counter filed by the respondents 1 and 2 opposing the claim of the petitioners it is stated that:

"In response to Divisional Railway Manager (Personnel), Visakhapatnam Notification dated 09.05.98 respondents received 2493 applications for the post of Gangmen in AEN/VZM sub unit in south Eastern Railway. 2172 eligible applicants were subjected to the qualifying physical test on 10.3.1999 and 11.03.99 in 43 batches in view of the large number of aspirants. 161 qualified candidates in the physical test were subjected to written test on 11.03.99 in the afternoon.

It is submitted that before publication of results of the selection, the 2nd respondent received specific complaint that malpractices and discrepancies occurred in batches 25,26,27 and 29 who were subjected to physical test on 10.03.99. The report of Committee of Officers was called and some eye witnesses were examined. The 2nd respondent, the Divisional Railway Manager personally examined the report of the Committee of Officer and eye witness account decided that re-qualifying physical test for all the successful candidates of batch Nos. 25,26,27 and 29 was called for in the interest of fairness. Candidates were informed through individual Telegrams 10 days in advance about the re-physical test. The same was followed by postal letter explaining the reasons for the pre-qualifying physical re-test was being conducted. It is respectfully submitted that the contention of the petitioner that the respondents have resorted to such methods only to eliminate some of the candidates selected are not correct but due to reasons stated above."

The statement made by the respondents 1 and 2 on oath that before publication of the select list, the 2nd respondent received specific complaints complaining that malpractices and discrepancies occurred in respect of the applicants covered by Batches 25,26,27 and 29 is not disputed by the applicants. It is not that the 2nd respondent received the complaints complaining that the entire selection process covering all the applicants was vitiated on account of certain specific malpractices or substantial flaws. The complaint received by the 2nd respondent was confined to applicants covered by batches 25,26,27 and 29 only. In that view of the matter, there was nothing wrong on the part of the 2nd respondent in asking only those candidates who are covered by those batches to re-appear for the physical fitness test on 29.5.1999. We are at a loss to understand how this particular action of the 2nd respondent would violate equality clause enshrined under Article 14 of the Constitution. It is true that since the guarantee of equal protection embraces the entire realm of `State action'', it would extend not only when an individual is discriminated against in the matter of exercise of his rights or in the matter of imposing liabilities upon him, but also in the matter of granting privileges, such as, grant of licences for entering into any business, inviting tenders for entering into a contract relating to Government business, or issuing quotas, giving jobs etc. This position is very well settled by the judgments in the State of W.B vs. Anwar Ali Sarkar1, Ramana Dayaram Shetty vs. I.A.A.I2, Kasturi Lal Lakshmi Reddy (M/s.) vs. State of J&K3. However, it is pertinent to notice that Article 14 prohibits class legislation and not reasonable classification. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differential which distinguishes persons or things that are grouped together from others left out of the group and (ii) that, that differential must have a rational relation to the object sought to be achieved by the statute in question. The question for consideration is whether the candidates covered by Batches 25, 26, 27 and 29 and left out candidates do constitute one indivisible class. As already pointed out supra, the complaint received by the 2nd respondent regarding the malpractices in conducting the physical fitness test on 10th and 11th March, 1999 was restricted to the candidates covered by Batches 25, 26, 27 and 29 only, not in respect of other batches of candidates. If that is so, the candidates covered by batches 25,26,27 and 29 and the candidates left out do not constitute one class so as to entail the wrath of Article 14 of the constitution by the impugned action. Be that as it may, we find that none of the vested legal rights of the petitioners are violated by the impugned action. The 2nd respondent took the corrective step even before the select list was published on receipt of certain specific complaints in respect of the candidates covered by batches 25,26,27 and 29.

In that view of the matter, the petitioners cannot be said to be aggrieved persons. Though, the petitioners were given a fair opportunity to appear before the committee for re-physical test on 29.5.1999, the petitioners for the reasons best known to them, did not bother to appear for the test and on the other hand they submitted an untenable representation to the 2nd respondent.

In the result and for the foregoing reasons, we do not find any merit in the writ petition. The writ petition fails and it is accordingly dismissed with no order as to costs.