SUNIL MANJHI AND ANOTHER vs N.F.RAILWAY
- Court
- Central Administrative Tribunal
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CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
[Reserved]
Original Application No. 40/52/2022
Reserved on: 16.07.2026
Pronounced on: 16.09.2026
Coram:-
HON’BLE MR. RAJINDER SINGH DOGRA, JUDICAL MEMBER
HON’BLE MR. SANJIV KUMAR, ADMINISTRATIVE MEMBER
1. Sri Sunil Manjhi,
aged about 41 years,
Son of Late Sakhi Chand Manjhi,
resident of Railway Quarter No. T 109,
Kalibari Colony, Lumding,
District- Hojai (Assam), Pin- 782447.
2. Sri Biswajit Dey, aged about 35 years,
Son of Sukumar Chandra Dey,
resident of House No. 402, Ward No. 4,
Netaji Pally, Badarpur,
District- Karimganj (Assam),
Pin- 788806.
......Applicants
[By Advocate: Mr. A. Ahmed]
-AND-
1. The Union of India,
Represented by Secretary
to the Government of India,
Ministry of Railways, Rail Bhawan,
New De|hi- 110001.
2. The Northeast Frontier Railway,
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Maligaon, Represented by its General
Manager, Maligaon, Guwahati,
Assam, Pin- 781011.
3. The Divisional Railway Manager,
Northeast Frontier Railway,
Lumding Division,
Lumding, Pin- 782447
4. The Senior Divisional Personnel Officer,
Northeast Frontier Railway, Lumding
Division, Lumding, Pin- 782447
5. Sri Mantu Sharma,
Staff and Welfare Inspector,
C/o Office of the Divisional Railway
Manager, Northeast Frontier Railway,
Lumding Division, Lumding, Pin- 782447
6. Sri Munin Das,
Staff and Welfare Inspector,
C/o Office of the Divisional Railway Manager,
Northeast Frontier Railway, Lumding Division,
Lumding, Pin-782447
7. Sri Rahul Kumar,
Staff and Welfare Inspector,
C/o Office of the Divisional Railway Manager,
Northeast Frontier Railway, Lumding Division,
Lumding, Pin- 782447.
8. Sri Hari Chandra Das,
Staff and Welfare Inspector,
C/o Office of the Divisional Railway
Manager, Northeast Frontier Railway,
Lumding Division, Lumding, Pin-782447.
......Respondents
[By Advocate: Mr. A. Kundu, Addl. CGSC for R.Nos. 1-4,
Mr. M. Chanda for R.Nos. 5-8 ]
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ORDER
PER R.S. DOGRA, MEMBER (J):
The instant OA has been filed by the applicant praying for the
following relief(s):-
“8.1 To set aside and quash the impugned communication bearing
No. E/283/18/LM (Q) Pt- IV dated 26.08.2021 (Annexure- P/1).
8.2. To direct the respondent authorities to appoint the applicants as
Staff and Welfare Inspector in compliance of the mode of selection
prescribed in the notification dated 29.12.2020, i.e., written
examination (Annexure- P/3), w.e.f. 26.08.2021 with all
consequential benefits of pay, seniority etc.
8.3. Cost of the application.
8.4. Any other relief/reliefs to which the applicants are entitled to
under the facts and circumstances of the case and as may be deemed
fit and proper by this Hon’ble Tribunal upon consideration of the
matter.”
2. The factual matrix of the case is that the applicants were recruited by
the respondent authorities on compassionate grounds and were posted at
Lumding, Assam. The respondent authorities published Notification No.
E/283/18/LM(Q) Pt. IV dated 29.12.2020 for selection to the post of Staff
& Welfare Inspector (S&WI) against 35% LDCE quota. The applicants
appeared in the written examination held on 25.07.2021 and were
confident that they would qualify the examination. The respondent
authorities published the list of selected candidates vide Memorandum
dated 26.08.2021 (Annexure- P/1) and the names of the applicants were
not reflected in the said list. Upon RT1 query, the results of written
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examination were furnished to the applicants wherein it was found that
applicant No. 2 secured the highest marks, i.e., 89 and applicant No. 1
secured 81 marks. RTI query also revealed that the marks secured by the
selected candidates were in the range of 88 and 73.33 and the evaluator
had forwarded the same to the authorities on 02.08.2021. The Notification
dated 29.12.2020 clearly stated that the procedure of selection shall be
written examination and panel will be formed in order of merit and as such,
it is evident that the applicants ought to have been selected as they had
secured higher marks. It was further revealed from RTI query that the
respondent authorities had sought for APAR of the preceding 3 (three)
years from the concerned departments on 04.08.2021, i.e., subsequent to
the date on which the marks were forwarded by the evaluator to the
respondent authorities. However, it is within the knowledge of the
applicants that certain departments had forwarded ‘Working Report’
instead of APAR and the same is prima facie arbitrary and perverse.
Furthermore, the selection was not made in terms of the notification dated
29.12.2020 and the rules of the game were subsequently changed solely to
favour certain individuals. In view of this, left with no other alternative,
the applicants have approached this Tribunal praying for redressal of their
grievances. Hence, this application.
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3. Learned counsel for the respondents 1 to 4 has filed their written
statement, wherein they averred that the notification No. E/283/18/LM(Q)
Pt-IV dated 29.12.2020 issued by DRM (P)/LMG is published as per
Railway Board's norms, wherein it is clearly mentioned that the panel will
be formed in order of merit as the selection in LDCE quota which itself
indicates that the selection will be done as per the existing practices in
terms of Paras- 211 and 215 of IREM-1989, E.48-RC1/18/3 dated
21.11.1953. Selection post shall be filled up by positive act of selection
made by selection Board from amongst the staff eligible for selection. The
positive act of selection shall consist of only written test to assess the
professional ability of the candidates. Selection should be made primarily
on the basis of overall merit but for the guidance of the selection board,
certain factors are to be taken into account.
It is stated that as per the RBE No.113/2009, panels should be strictly
prepared on merit with reference of marks obtained by the candidates in
‘Professional ability’ and ‘Record of Service‘ subject to usual relaxation
for SC/ST staff, wherever permissible, those securing less than 60% in
‘Professional ability‘ and 60% in aggregate, will not be considered eligible
for inclusion in the panel. Further, the service records of only those
candidates who secure a minimum of 60% marks in ‘Professional Ability’
shall be assessed. Since the final panel has to be drawn on the basis of
merit, there will be no scope for erstwhile provision of placement of
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candidates who secure 80% or more marks, classified as ‘Outstanding', on
the top of the panel. It is pertinent to mention here that both professional
ability and record of service plays a vital role simultaneously in the
selection procedure of LDCE quota.
Counsel states that applicants have qualified in the written
examination. The procedure of the Allotment of Marks is marks obtained
by the candidates in the Professional Ability out of 100, weightage on out
of 50% marks obtained by the candidate plus Marks of Record of Service
wherein out of 30 is added as Total Marks out of 80. As the panel has been
drawn as per merit basis based on the marks obtained by the candidates in
the “Professional ability" and “Record of Service" but in the required
overall aggregate marks, applicants got lesser marks than the other four
merit selected candidates. The post of Staff and Welfare Inspector(S&WI)
is a Non-Safety category post. As per Railway Board‘s Master circular No
31, in the case of (Reserved community) SC/ST employees having 50%
marks in Professional ability and 50% marks in aggregate can be
considered for promotion. Besides, the fact that the applicants are under
Un-reserved category (Shri Biswajit Dey) & SC category (Sri Sunil
Manjhi) candidates and they were not considered from the zone of
consideration on the ground that they had not secured total marks as
compared to panel candidates as per the Category (community). The other
candidates who had been selected only because they had got maximum
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marks in overall aggregate irrespective of the facts that the total marks of
those candidates are more than the marks obtained by the applicants.
On 26/08/2021 vide letter no. E/283/18/LM (Q) PL. IV, the result
of the selection has been published not only on the basis of written
examination as stated by the applicants but it was on the basis of merit
fulfilling all criteria of selection procedure as per the norms of LDCE
quota selection in terms of Para 219(h) of IREM Chapter-II. In the process
of evaluation of merit, all instructions were strictly followed that is in the
State Railway Establishment Manual and The State Railway
Establishment Code which is issued by the President in exercise of powers
conferred on him by the proviso to Article 309 of the Constitution of India.
In the process of selection through LDCE, it is open secret that the Written
Examination is not the ‘only means of merit for selection. Selection Board
is authorized to follow further process as per instructions in Establishment
Manual. Selection has been done on the basis of Railway Board's Master
Circular, wherein Allotment of marks has been shown in para 4.6 of the
written statement. The applicant has been taken the point that the
procedure of selection shall be written exanimation and panel will be
formed in order of merit that evaluation of merit would be on the basis of
a procedure for normalization but the language of the selection procedure
clearly indicated in the notification dtd.29.12.2022 that the panel will be
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formed as per merit. Accordingly, the merit was to be reckoned on the
basis of the marks of “Professional ability” and “record of service" beyond
the marks of the written test. The applicant No.1 secured highest marks in
the written test only in respect to the post reserved for SC category and the
applicant No.2 secured highest mark in the written test only in respect to
the post Un reserved post but their overall merit (Professional ability and
record of service) is much lesser than the selected candidates which is
clearly seen from the calculation of tabulation sheet as mentioned in the
Para-4.6 because the selection should be made primarily on the basis of
overall merit as stated in para 4.6 of the written statement.
4. Learned counsel for the Respondent Nos. 5-8 has submitted that
working report has been taken into consideration for respondent no. 5 and
8 instead of APAR. However the applicants have suppressed the fact that
even for the applicant no. 2, working report has been taken into
consideration instead of APAR. Under such circumstances, the claim of
the applicant no. 2 in the instant O.A. has no legs to stand. Further the
letter dated 04.08.2021 has been enclosed by suppressing and concealing
the remarks mentioned below therein. The remarks reads as under: “For
rest of the Engg. Staff, DAR clearance and APAR/working report may be
sought from concerned ADENS.” It is stated that the applicants were well
aware that in certain Railway Departments viz. Engineering Department,
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APARs are not maintained; as such for them, working reports were sought
instead of APARs. They had accepted the said position in the selection
process and had made no grievance against the same (not even in the
present O.A) with the expectation that their names might figure in the final
panel based on APAR/working report. But it is only after the publication
of the final panel dated 26.08.2021 and completion of the selection
process, the applicants have made their grievance through their
representations dated 07.12.2021 and 13.12.2021 and approached this
Hon’ble Tribunal by filing the instant O.A. It is the settled position of law
that having participated in a selection process and being unsuccessful
cannot turn around and challenge the selection process. They are barred
by the principle of approbate and reprobate . It is stated that concealment
of the remarks in the letter dated 04.08.2021 is clearly evident from the
part of the said remark below the table towards the right still remaining in
the said letter dated 04.08.2021. The cause of action for the applicant no.
l(SC candidate) is the empanelment of another SC candidate (respondent
no. 8) against the SC vacancy by Memorandum dated 26.08.2021 and he
has no grievance against the respondent no. 5, 6 and 7. The cause of action
for the applicant no. 2(UR candidate) is against empanelment of the
respondent no. 5, 6 and 7 against the UR vacancies by Memorandum dated
26.08.2021 and he has no grievance against the respondent no. 8(SC
candidate). It is stated that the instant O.A. is not maintainable in the
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present form and is liable to be rejected on this ground alone. That in reply
to the statements in para 4.4. it is stated that Section A of Chapter II of
IREM Volume 1 provides for the Rules governing promotion of
Subordinate Staff. Para 219 provides for the procedure to be adopted by
the Selection Board. Para 2196 of the IREM inter alia provides as under:
“The selection process in the instant case provides for
professional ability through Written Test and Record of service
in terms of the statutory rules of IREM. Para 219(f) of the
IREM Vol .-I provides that the Selection Board will examine
the service record and confidential reports (if kept) of the staff
eligible. In terms of the said Para 219(f) the Railway
respondents have sought for APAR or working reports when
APAR is not maintained by the said Department. Preparation
of panel on the basis of merit with reference to marks obtained
by candidates ‘Professional ability’ and ‘Record of Service’ is
also fortified by Railway Board’s letter dated
19.06.2009(Annexure R/2 of written statement of Railway
respondents) and Master circular dated 19.12.2019(Annexure
R/3 of written statement of Railway respondents). Even the
Railway Board by letter dated 30.12.2014 uses the expression
‘may’ while stating that ‘APAR may henceforth be written for
the categories.”
In view the above it is stated that there is no infirmity in considering the
record of service through APAR/working report after written test. It is also
the settled position of law that Advertisement shall subserve to the Rule
and the Rule shall prevail in case of any ambiguity and conflict between
the two. It is further stated that written test is not the only stage in the
selection process. It carries only 50 marks out of total 80 marks, rest 30
marks is from record of service consisting of APAR working report. It is
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stated that the respondent no. 5, 6, 7 and 8 have been empanelled by
Memorandum dated 26.08.2021 based on the consolidated marks of
written test and record of service. In this regard, the Hon’ble Supreme
Court in the case of Union of India & Anr vs A.K. Narula[(2007) 11 SCC
10] has held as under: “The guidelines give a certain amount of play in the
joints to the DPC by providing that it need not be guided by the overall
grading recorded in the CRs, but may make its own assessment on the
basis of the entries in the CRs. The DPC is required to make an overall
assessment of the performance of each candidate separately, but by
adopting the same standards, yardsticks and norms. It is only when the
process of assessment is vitiated either on the ground of bias, malafides or
arbitrariness, the selection calls for interference. Where the DPC has
proceeded in a fair, impartial and reasonable manner, by applying the same
yardstick and norms to all candidates and there is no arbitrariness in the
process of assessment by the DPC, the court will not interfere.”
It is further stated that the respondent no. 5 to 8 have no hand in
maintaining APAR or working report in their case/category by the
railways. Even in case of any error or lapse on the part of the railways in
not maintaining APARs of the candidates, the candidates cannot be made
to suffer when all have been treated fairly without any favour or prejudice
to anyone. The respondents cannot be denied the promotion already
granted to them even in case of lapse of the railways in not maintaining
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their APARs. But in spite of such instructions if maintaining of APARs
could not be completed by the Railways for all the Departments, the
candidates in the zone of consideration for considering them for promotion
cannot be made to suffer. However, even in the Eastern Railways,
Working Reports are still maintained by Engineering Department instead
of APARs and as and when required for Selection/Suitability, Working
report of Trackmaintainers are collected from Engg. Department, which is
evident from the RTI reply dated 10.05.2021(Sl. No. 3) and 13.05.2022. It
is further evident from the said RTI reply dated 13.05.2022 that in the last
5 years, two Selections were held for the post of Staff & Welfare Inspector
in Asansol division in 2017 and 2021, wherein Working Report of Engg
Deptt. Staff were sought for by letter dated 11.01.2019 and considered.
Even in the Western Railways, APARs for Track Maintainers have started
to be prepared only from 2020-21 onwards which is evident from the RTI
reply dated 12.04.2022. Under such circumstances, it is stated that the
action of the respondent railways is not at all arbitrary as in all others
railways also Working report is in existence and the present candidates
under N.F. Railways have not been treated differently. However it is
reiterated that if maintaining of APARs could not be completed by the NF
Railway for the candidates of Engg. Department, the candidates in the
zone of consideration for considering them for promotion cannot be made
to suffer for the lapses on the part of the respondent railways.
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5. Learned counsel for the applicant has filed rejoinder against Written
statement filed by Respondent Nos. 1-4 and has contended that the panel
will be formed in order of merit as the selection in LDCE quota and the
same indicates that selection will be as per the existing practices in terms
of Para 211 and 215 of IREM-1989, E.48/RC1/18/3 dated 21.11.1953.
Further, respondents have admitted that the Applicant No. 1 secured the
highest marks in written examination in his category, i.e., Scheduled Caste
(SC) and the applicant No. 2 secured the highest marks amongst all
candidates in the written examination and as such, as per the stipulations
contained in the notification dated 29.12.2020, they ought to have been
selected and appointed against the post of Staff and Welfare Inspector,
Lumding Division.
Counsel further states that the GM(P)/MLG, NF Railway vide Letter
No. E/254/0 Pt.XIV(C) dated 12.06.2006 had categorically stipulated that
for Record of Service, the ACR for the last 3 (three) years are to be taken
into account and as such, without prejudice to the contentions raised in the
foregoing paragraphs of this rejoinder, the action on the part of the
respondent authorities in considering Working Report as Record of
Service is outrightly perverse and violative of the stipulations contained in
the notification dated 29.12.2020 (Annexure- P/3 to the Original
Application) and the Letter dated 12.06.2006. Furthermore, the
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respondents have sought to justify such action by contending that as 60%
marks in Professional ability is required for inclusion of panel, hence,
service records were called after evaluation of marksheet only in respect
of those candidates who had secured a minimum of 60% marks in
Professional Ability. The said contention is perverse to the core of it
inasmuch as nowhere is it mandated that in the rules and guidelines
holding the field that Record of Service would be called only after
evaluation of marksheets and in respect of candidates who had secured
60% in Professional Ability. Furthermore, Letter dated 12.06.2006 clearly
mandates for Record of Service, 3 (Three) years ACR (currently known as
APAR) are to be taken into account and as such, preparation of Working
Report after having knowledge of the marks secured by the candidates
clearly establishes that malafide is writ large in the matter and the said
course of action has been adopted solely to favour the blue eyed boys of
the respondent authorities. The applicant further begs to state that calling
of Working Report in respect of applicant No. 2 would, by no stretch of
imagination, justify the action on the part of the respondent authorities
inasmuch as it is the categorical stand of the applicants that the notification
dated 29.12.2020 provided no scope to the respondent authorities to call
for Record of Service and as such calling of Record of Service and taking
into account the same is itself illegal and violative of the stipulation
contained in the notification dated 29.12.2020. Copy of Letter No.
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E(NG)I2013/CR/1 dated 30.12.2014 is annexed herewith as ANNEXURE
12. That with regard to the statements made in Paragraph 16 of the Written
Statement, applicant categorically denies the same and reiterates and
reaffirms the statements made in Paragraph 4.15 of the Original
Application. That with regard to the statements made in Paragraph 17, 18
and 19 of the Written Statement, applicant categorically denies the same
and reiterates and reaffirms the statements made in the foregoing
paragraph of this rejoinder. The applicant states that the it is prima facie
evident that malafide is writ large in the matter and the respondent
authorities have acted in complete disregard to the rules and guidelines
holding the field solely to advance undue favour to the private respondents
and as such this Hon'ble Tribunal may be pleased to interfere in the matter
and allow the instant Original Application preferred by the applicants.
6. Learned counsel for the applicant has filed rejoinder against
written statement of Respondent Nos. 5-8 and has submitted that the
respondents have failed to substantiate their claim by enclosing any
document to show that either of the applicant No. 2 or applicant No.
1 had prior knowledge that their Working Report/APAR would be
taken into consideration. Counsel further states that a conjoint reading of
the said stipulations contained in the notification dated 29.12.2020 leaves
no manner of doubt that the procedure of selection shall be written
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examination and panel will be formed in order of merit, meaning thereby
that the panel for selection would be formed in the order of merit position
secured in the written examination and as such, in view of such clear
stipulation in the notification dated 29.12.2020, the respondent authorities
could not have taken into consideration either APAR or Working Report.
The action on the part of the respondent authorities in calling for Record
of Service after evaluation of answer sheets fortifies the claim of the
applicants that malafide is writ large in the matter. It is therefore evident
that the entire selection process was tailor made to benefit the respondent
Nos. 5 to 8 and as such this Tribunal may be pleased to interfere in the
matter. The post of Staff and Welfare Inspector is not a promotional post
and a bare perusal of the notification dated 29.12.2020 (Annexure- P/3)
makes it abundantly clear that recruitment to the said post is made on the
basis of selection from employees working under the respondent
authorities and as such the same cannot, by any stretch of imagination be
termed as a promotional post. Furthermore, merely because Working
Reports are considered in other divisions, it does not necessarily mean that
the same is legally permissible, moreso in view of the fact that the
applicants have prima-facie demonstrated the arbitrariness occasioning in
the present matter and as such the legality and validity of the same is
required to be decided by this Hon’ble Tribunal.
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7. Heard the parties, perused the records and considered the submission
of the parties.
8. After assessing the entire records and submissions of the parties, it
transpires that applicants having failed to secure the grade for selection
and lower in merit in comparison to the candidates recommended for
selection, have chosen to call in question the validity of selection by
finding faults with the selection and other irrelevant issues which is bound
to effect the various meritorious candidates, who have secured higher
marks than the candidates. We have perused the marksheet of the
candidates which is tabulated below:–
S.No. Name, Designation
& Station of the
Candidates
Community Professional Ability Marks of
Record of
Service(30)
Total
Marks
out of
(80)
Marks
obtained
out of
(100)
Marks
obtained
out of
(50)
1 HARI CH DAS
TKM/II/NJN
SC 73.33 36.665 30 66.665
2 SUNIL MANJHI
Tech/I/DSI/LMG
SC 81 40.5 24 64.5
3 RAHUL KUMAR
Sr. ALP/NGC
UR 85.33 42.665 26 68.665
4 MUNIN DAS
Tech/I/Sig/LMG
SC 88 44 30 74
5 MANTU
SHARMA
TKM/II/NHLG
UR 88 44 30 74
6 BISWAJIT DEY
Help/I/ETS/AGTL
UR 89 44.5 24 68.5
From the above, it is noted that the Applicant No. 1(being an SC
Candidate) and Applicant No. 2(being a UR Candidate) were not
considered for empanelment considering the fact that they had secured
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lesser marks as compared to empanelled candidates as per the
Category(Community) as notified. Further the successful candidates who
had been selected only because they had got the maximum marks in
overall aggregate irrespective of the facts that the total marks of those
candidates are more than the marks obtained by the applicants. Further, in
the process of selection through LDCE, it is a open secret that the Written
Examination is not only the means of merit for selection considering the
fact that selection board is authorized to follow further process as per
instructions in Establishment Manual. In the present case at hand, selection
has been done on the basis of Railway Board’s Master Circular. The
applicants are taking the ground that the procedure of selection shall be
written examination and panel will be formed in order of merit that
evaluation of merit would be on the basis of a procedure for normalization
but the language of the selection procedure clearly indicated in the
Notification dated 29.12.2022 that the panel will be formed as per merit.
Accordingly, the merit was reckoned and selection was done on the basis
of the marks obtained out of “Professional Ability” and “Record of
Service” beyond the marks of the written test.
9. We are thus of the considered opinion that the applicants have
failed to show any plausible ground for interference of the selection list.
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Accordingly, the instant OA stands dismissed being misconceived. No
costs.
10. Pending M.A.(s), if any, stand disposed of.
11. Interim order, if any, stands vacated.
(SANJIV KUMAR) (RAJINDER SINGH DOGRA)
MEMBER (A) MEMBER (J)
/SK/
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