Santosh Kumar Tiwari vs General Manager, North Central Railway, Subedarganj, Allahabad & Others

Mohan Pyare, Member (A)

Present Original Application has been filed by the applicant seeking the following reliefs:

“i. to issue writ, order or direction in the nature of certiorari quashing the selection and appointment of respondent nos. 5 to 10 (4 to 10 after amendment) to the post of C.L.I. (Chief Loco Inspector) whose names figure at Sl. Nos. 38, 57, 59, 61, 345, 311 & 258 respectively at the selection chart and at Sl. No. 10,5,4,22,17,& 12 respectively at selection list (vide Annexure no.1 and 2 Respectively, to Compilation 1, Supra).

ii. to issue writ, order or direction in the nature of Mandamus Commanding and directing the respondents authorities to re-determine the respective merits by genuinely rating the A.P.A.R. grading of the applicant and that of respondent nos. 5 to 10 (4 to 9 after amendment) for the Years 2012-13, 2013-2014 & 2014-15 as per the respective service record and awards and accordingly awarding them proper and just marks, issue fresh selection result therefor and thereafter appoint the applicant to the post of C.L.I. (Chief Loco Inspector), if he turns selected as per his merits and grant him all the service benefits including seniority to which he would have been entitled to had he been selected and appointed as C.L.I. alongwith other candidates, so selected and appointed as C.L.I. (Chief Loco Inspector), pursuant to their appearance in self same written examination held during the period 22.08.2015 to 26.09.2015 for the selection to the post of C.L.I.

iii. issue such other and further suitable writ, order or direction as this Hon’ble Tribunal deems fit and proper, given the facts and circumstances of the case.

iv. allow the original application with costs in favour of the applicant.”

Brief facts of this case as narrated in the Original Application are that the applicant was appointed as Assistant Electric (Loco) Driver on 19.09.1996 in the Northern Railway, Allahabad and promoted as Electric Loco Pilot (Goods) on 09.12.2009. Thereafter, against the advertisement issued in the year 2015 inviting candidates from amongst the Electric Loco Pilots to appear in the written examination, to be held for the promotional post of C.L.I. against 36 posts of C.L.I. (i.e. 24 for U.R. Category, 6 for S.C. Category and 6 for S.T. Category Candidates) with Foot Plate Train Operation/ Driving experience of 75000 Km being the prerequisite/ mandatory condition for the selection and appointment as per the information dated 01.04.2016 furnished by Public Information Officer/ Senior Divisional Personnel Officer, N.C.R. Allahabad, the applicant applied for the same and appeared in the written examination held on 22.08.2015. The selection to the aforesaid promotion post of C.L.I. was to be made on the basis of merit ascertained by taking into account half of the marks scored in the written examination containing 100 marksby adding marks scored in the A.P.A.R. grading for the last three years i.e. Years 2012-13; 2013-14 and 2014-15. However, when the applicant could not be selected in spite of scoring 66.50 marks out of the 60 marks required for qualifying the written examination, he moved an application dated 16.12.2016 under the RTI Act 2005 seeking a list of candidates who secured more than 60 marks, their respective marks on A.P.A.R. grading, award, if any, to their credit etc followed by an appeal under RTI Act vide appeal memo dated 11.04.2016 and when no response was received, he made a representation dated 12.05.2016 to respondent no.3 with categorical averment to the effect that in spite of service record of the applicant being better than that of all the selected candidates under U.R. category, he has been deprived of his selection and appointment to the post of C.L.I. and thereby requested him to do Justice with him by re-determining merit based on the genuine marks awardable to him on his A.P.A.R. grading vis. a vis. his service records including the awards to his credit. The applicant, thereafter, made an application dated 30.05.2016 to Chief Information Commissioner, New Delhi seeking the above information after which the selection list came to be provided to the applicant. Being aggrieved with the selection list being anomalous, the applicant made a detailed representation dated 22.06.2016 to respondent no.3 requesting thereby to re-determine the merit and declare the amended result, followed by a representation dated 25.06.2016 and reminders dated 27.07.2016, 26.09.2016 and 07.01.2017. The elder brother of the applicant also tweeted to the G.M,. NCR, Allahabad as also to the Hon’ble Railway Minister against the said selection and appointment to the post of C.L.I after which the matter was forwarded to the concerned official for necessary action.

We have heard learned counsels appearing for the parties.

Submission of learned counsel for the applicant is that the applicant has rendered outstanding services to the Railway during the year 2003 for which he was given General Manager (G.M.) Award, again on 26.01.2014, he was given the G.M. Award and the outstanding performance of the applicant in railway availed him of Outstanding Service Award on 26.01.2016. In addition to the aforesaid awards, on 28.11.2016, the applicant was given safety awards by D.R.M., Allahabad. He argues that a perusal of the selection chart and list demonstrates that candidates namely Sudhir Kumar Sharma (Respondent No.4) and Pradeep Malhotra (Respondent No.5) scored less than the applicant in the written exams but they got selected and appointed as C.L.I by arbitrarily, unduly and unwarrantedly rating the A.P.A.R. grading better than the applicant without their service record matching and warranting such grading and similarly, Ganga Charan Pal (Respondent No.6), Haushila Prasad (Respondent No.8) and Saroj Kumar (Respondent No.9) who have much inferior service record to the applicant, have been awarded better score on the A.P.A.R. on extraneous considerations due to which they too got selected. He further argues that in the service book of Desh Deepak (Respondent no.7), whose name also figures in the selection list, there is an adverse entry in the punishment column, yet he has been awarded 20 marks on A.P.A.R. grading showing his A.P.A.R. as Good, Good and Very good for the years 2012-13, 2013-14 & 2014-15. He contends that the applicant, having the aforementioned awards to his credit, was/is eligible and entitled to be awarded 8, 10 and 10 marks for his very good, outstanding and outstanding performances on APAR grading in years 2012-13, 2013-14 and 2014-15 respectively but against the same he has been awarded 8, 6 and 6 marks. Consequently, the applicant was awarded only 20 marks while he was eligible for 28 marks in the A.P.A.R. which deprived him of his selection and appointment as C.L.I. Learned counsel for the applicant submits that by adding 20 marks so awarded to the applicant on A.P.A.R. grading as per the aforesaid selection chart, to the 33.25 marks of written examination (i.e. half of 66.50 marks so obtained by the applicant in written examination), the applicant’s total marks as shown in the aforesaid selection chart comes to 53.25, whereas, by counting 28 marks, so awardable to the applicant on the APAR grading and 33.25 marks of the written examination, the total Marks of the applicant turns to be 61.25 which is far in excess of the marks i.e. 58.50 & 57 of selected respondents namely Sudhir Kumar Sharma and Desh Deepak respectively.

Learned counsel for the applicant further avers that the impugned selection chart and selection list demonstrates that against there being 6 posts of C.L.I. reserved for S.C. category candidates, 8 SC category candidates have been selected and appointed and against there being 24 posts for UR category candidates only 22 UR category candidates have been selected and appointed, depriving the applicant, an UR category candidate, of selection and appointment. It is further contended that respondent no.4 namely Sudhir Kumar Sharma did not even fulfil the aforesaid criteria of 75000 Km Train Driving but he has been selected and appointed as C.L.I. He states that as a further blow to the applicant, the respondents issued a notification/ advertisement for filling up the remaining 27 vacancies of C.L.I. He submits that subsequent to filing of this O.A., Chief Information Commissioner (i.e. C.I.C.) New Delhi, passed the order dated 06-10-2017 directing the respondent No.3 i.e. Senior Divisional Personnel Officer to provide the applicant, a copy of his service book complete in all respect meaning thereby containing entry therein of all the awards already given to him in pursuance of which the applicant moved representations dated 05-03-2018 and 03-05-2018 referring therein the earlier representations dated 23- 10-2017, 30-11-2017, 02-11-2018, 05-03-2018, already made by him to the authorities concerned for entry of all the awards given to him in his service book and to provide a copy of updated service book containing entry of all the aforesaid award, but neither the aforesaid award were entered in his service book nor a copy thereof as directed under the aforesaid order dated 06- 10-2017 was given to him. He states that in spite of the aforesaid order dated 06-10- 2017 of Chief Information Commissioner, concerned Railway authorities purposely avoided to make entry of the aforesaid awards in the service book of the applicant and deliberately flouted the aforesaid order dated 06-10- 2017 of Chief Information Commissioner with ulterior motive to deprive the applicant of the benefits of the said award even in the next examination of C.L.I., then scheduled to be held on 28-07-2018 to which examination the applicant was one of the candidates and for want of entry of the aforesaid award in the service book of the applicant, he was constrained from appearing in the said examination as is evident from the letter dated 27-07-2018. In pursuance of R.T.I. Application of the applicant dated 26-03-2019, a letter dated 06-05-2019 from the office of respondent No. 2 was given to the applicant. A perusal of aforesaid letter dated 06-05- 2019 categorically reveals that until the issuance of letter dated 06-05-2019, the aforesaid awards already given to the applicant, were not entered into the service book of the applicant. Thereafter, the respondent authorities held the next C.L.I. examination on 28-07-2018 and declared result thereof on 04-10-2018. On account of non entry of the aforesaid awards in the service book of the applicant, he was constrained from appearing in the said examination. Learned counsel for the applicant argues that the applicant was belatedly provided the copy of his service book dated 10-02-2022 making entry on 20-08-2019 of the aforesaid awards, which awards ought to have been entered in the service book of the applicant prior to 09-02-2016 and the same is liable to be considered by this Hon'ble Tribunal/Court.

Submission of learned counsel for the official respondents (Respondent Nos. 1 to 3) is that the cut off marks for selection of Chief Loco Inspector (C.L.I (Elect.)) in Pay Band of Rs. 9300-34800/- Grade Pay of Rs. 4600/- for unreserved category is 56.50 and the applicant secured 53.25 marks only and as such he has not been selected for the post in question. He further states that the entire selection proceedings conducted by the answering respondents are in accordance with law and in very fair and transparent manner and as the applicant could not get the requisite marks for being selected, he is making the false and frivolous allegations.

Learned counsel for the private respondents (Respondent Nos. 4 to 9) state that respondent Nos. 4 to 9 scored more than the required marks for selection/ promotion on the basis of marks in the written examination and marks of A.P.A.R. and they have been rightly selected since they are eligible for the same. He further states that the applicant has unjustly challenged the selection list only in respect of their selection instead of challenging the entire list. He submits that no candidate has the power to say that the other candidates are inferior to them but the applicant used the word “inferior” about respondent Nos. 4 to 9 which shows malafide intention of the applicant against them and so far as the false allegation about respondent No.4 namely Sudhir Kumar Sharma not having completed the minimum driving experience of 75,000 Km is concerned, the applicant has adduced no documentary evidence to prove the same and learned counsel for the private respondents further referred to annexure C.A.-1 (page 24 of the counter reply dated 25.08.2023) to refute the same. He further states that the applicant has also received the corrected service book on 10.02.2022 and receiving the same, the applicant should have approached the appropriate authority for consideration of his grievance but the applicant directly approached this Tribunal by way of amendment application while after entry of the award in service book of applicant, fresh cause of action arose to the applicant which he should have approached procedurally. He submits that from the perusal of Annexure No. 21 enclosed at page no. 123 of the present O.A., it is found that the applicant did not file the certificate of award dated 26.01.2016 before the authority concerned timely while the same should have been filed before the appropriate authority as per the general trends and the applicant should have been aware of his A.P.A.R. which is shown every year by the personnel department but the applicant was silent on such issue before the declaration of the result.

In his rejoinder, learned counsel for the applicant has emphatically reiterated the same arguments as in the O.A. and stressed that the applicant deserves more marks in the A.P.A.R. than the respondent Nos. 4 to 9 on account of having rendered better services and awards and that he is more eligible than them for selection in the aforesaid examination. Learned counsel for the applicant has also relied upon the judgement of the Hon’ble Apex Court in the case of Dev Dutt vs. Union of India decided on 12.05.2008 [citation: 2008 LawSuit(SC)846] wherein it has been held that every entry in the ACR must be communicated to the employee so that he can make representation for up-grading the same.

We have considered the rival submissions of learned counsel appearing for both the parties and perused the entire documents on record.

The applicant in the present O.A. is aggrieved due to not being selected in the written examination held for the promotional post of C.L.I. in the year 2015. The applicant has averred that he was more eligible than some other candidates for selection and among the reliefs claimed in the matter, he has sought the multiple reliefs of quashing the selection of respondent Nos. 4 to 9, commanding and directing the respondents authorities to re-determine the respective merits in the A.P.A.R. grading of the applicant and that of respondent nos. 4 to 9 for the Years 2012-13, 2013-2014 & 2014-15 as per the respective service record and awards, and issue fresh selection result. The respondents on the other hand have claimed that the selection procedure was just and transparent and that the applicant should have sought the redressal of his grievances before the appropriate authority in a procedural manner.

Various allegations have been made by the applicant on the merit of respondent Nos. 4 to 9 with respect to their selection in the examination under question. The allegation of the applicant, for instance, that respondent no.4 has not qualified the requisite minimum driving experience of 75,000 Km has not been supported by any documentary evidence and the same has been refuted by the respondents vide the certificate annexed at page 24 (Annexure C.A.1 of Counter Reply dated 25.08.2023). The other allegations with respect to the private respondents about not meriting the score in their A.P.A.R. is startling since the same is awarded by the higher authorities on the basis of various considerations and the services rendered by them and it is not for the applicant to decide if they are inferior to him or not. If the applicant was aggrieved with the score that he has been awarded in his A.P.A.R. he should have immediately represented before the concerned authority. We cannot believe that the applicant was not aware of his Appraisal Report since the same is provided to the employees as per the rules for their acknowledgement and nowhere the applicant has mentioned that he had to demand the same from the respondents while he sought the A.P.A.R. of other selected candidates through application under RTI Act. Once aware of his Appraisal Report and the fact that he was marked nil in the awards column, the remedy available before the applicant was to challenge the same through a representation before the concerned authority but instead he chose to seek the downgrading of the A.P.A.R.s of the other selected candidates which is not permissible. One may also wonder why the applicant was suddenly dissatisfied with the marks awarded to him in the A.P.A.R. only after the result and his subsequent enlightenment that some of the other selected candidates only succeeded in the examination due to securing higher marks than the applicant in their A.P.A.R. and never before that. There is a prescribed procedure open to the employees to initiate action to rectify the infirmities in their A.P.A.R. The applicant has not pleaded that he has taken due effort for rectification of the deficiency in award of grades in his A.P.A.R. and the competent authority amongst the respondents has failed to take action as prescribed in rule/ procedure for rectification of ratings in grades awarded to the railway employee in his A.P.A.R.

In view of the above facts and deliberations, we are of the considered opinion that the multiple reliefs sought by the applicant in this O.A. cannot be feasibly allowed and the applicant has not proceeded as per the rules and orderly procedure for the redressal of his grievance. Thus, the present Original application is liable to be dismissed and is, accordingly, dismissed. The applicant is, however, at liberty to make a representation before the concerned authority with respect to his grievances regarding his score in the A.P.A.R. taking into account his performance, awards and special achievements (if any) for the years under question which the respondents shall consider and decide on merit.

All the associated M.As. also stand disposed of. No costs.