Partly allowed

Union of India and Anr. v. Surendra Gund

Rajasthan HC24 Mar 2015CW/13095/2012

Case brief

AI extract

What is this about?

This order quashes parts of the Central Administrative Tribunal's order regarding a Railway employee selection. The bench held that a recruitment ban and subsequent circular issued after the selection process commenced could not retrospectively invalidate the selection. The Tribunal's direction for appointment was modified to allow consideration based on rules existing at the time of advertisement

What did the court decide?

Petitioner-applicant's claim held only to be entitled for consideration for appointment as per rules existing when advertised; appointment direction of Tribunal modified. Authorities to consider case

Union of India and Anr. Vs Surendra Gund — Service and Employment | Rajasthan HC (2015)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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ORDER

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Union of India vs. Surendra Gund & anr. D.B. Civil Writ Petition No. 13095/2012 under Article 226 & 227 of the Constitution of India. Date of Judgment : 24.3.2015

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PRESENT

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HON'BLE MR. JUSTICE GOVIND MATHUR HON'BLE MISS JUSTICE JAISHREE THAKUR.

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Mr. Manoj Bhandari counsel for the petitioners. Mr. Kuldeep Mathur, counsel for the respondent.

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BY THE COURT:(Per Hon'ble Miss Jaishree Thakur)

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The present writ petition has been filed under Article 226 and 227 of the Constitution of India laying challenge to the order dated 18.10.2011 passed by the Central Administrative Tribunal, Jodhpur (for short 'the Tribunal' hereinafter) and to the order dated 4.10.2012 dismissing the review application.

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In order to promote sports, the railways had advertised two posts for appointment in the field of boxing. The respondent Surendra Gund had applied for appointment under sports quota. Respondent being eligible, submitted his application pursuant to the advertisement issued and was called for field trials and interview. The respondent went for the boxing trials and was successful in the same.

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After verification of the documents submitted, the respondent was assured that he would be granted appointment on the post as advertised. Further, the respondent was also asked to have a complete medical check up done at the Railway Hospital, Jodhpur. A medical test was conducted but there was no further communication received by the respondent thereafter. The respondent approached the authorities regarding the matter of appointment and was informed that there was a stay for appointments in grade-IV employees in the Department. Since the respondent was not offered a letter of appointment despite the fact that he was successful in the trials, filed an Original Application before the Tribunal at Jodhpur praying for appointment to the post as advertised by the Railways Authorities.

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Reply was filed by the petitioner to the said Original Application stating that the respondent could not be offered appointment as there was a ban by the department itself on appointments to class-D post in the Department. It is also contended that a Circular dated 25.5.2009 had been issued to the effect that the request for alternative appointment to medically unfit candidates could not be considered. Since the respondent had not cleared the medical test as required for the post of Traffic khalasi, he was not offered appointment or be considered for an appointment to an alternative post. The Tribunal, after

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hearing the parties, vide its order dated 18.10.2011 came to the conclusion that the respondent could not be denied appointment on the ground that a ban had been imposed and further gave a direction to appoint the respondent on the post he was selected within a period of three months. Aggrieved against the said order, the writ petitioner filed D.B.Civil Writ Petition No. 3696/2012 in which it was pointed out that the Railway Board had in the meantime, taken a decision to re-hold the selection process of recruitment of Shri Surendra Gund and another to see if they fulfill age, sports requirements, trial and suitability of jobs etc. The writ petition was disposed of by giving liberty to the petitioner to file a review before the Tribunal on 3.5.2012. In the review application, the petitioner relied upon communication dated 26.4.2011 which called for the selection process to be conducted afresh for recruitment of Shri Surendra Gund and Ummed Basara. The review petition was dismissed. Aggrieved against the dismissal of the review application, the petitioner has filed the present writ petition challenging the order dated 18.10.2011 passed in Original Application No. 205/2010 and the order dated 4.10.2012 passed in Review Application No. 9/2012.

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The Mr. Manoj Bhandari, learned counsel appearing on behalf of the writ petitioner has contended that the respondent was called for an interview on 9.3.2009 and he was further asked to have a complete medical check up at

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the Railway Hospital at Jodhpur. In the medical test, he was declared fit for B-2 category and not for A-1 category, therefore, could not be considered fit to be appointed as Traffic khalsi. It was submitted that as the Railway Board had imposed a ban on fresh recruitment to Group-D posts, the appointment could not have been offered to him. It is also contended that a circular had been issued on 25.5.2009 holding that alternative appointments to medically unfit persons could not be made on alternative post. Without taking all these facts into consideration, the Tribunal erred in allowing the Original Application filed by the respondent as well as erred in dismissing the review application by directing that the respondent should be appointed to the post to which he had been selected. Mr. Kuldeep Mathur, learned counsel appearing for the respondent has urged that there is no infirmity in the order passed and as such the writ petition should be dismissed.

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We have heard the learned counsel for the parties and have also perused the record of the case.

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Admittedly, the respondent-herein had applied for appointment to Class-D posts in the railways pursuant to an advertisement dated 12.1.2009. He was called upon to participate in trials and was successful in the same. His documents were duly verified and on scrutiny thereof, the petitioner herein had assured him of an appointment as against the posts advertised.

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The contention of the petitioner that the letter of appointment could not be issued since there was a ban imposed on recruitment of Class-D employees against the sports quota, has been rightly dealt with by the Tribunal in holding that the letter dated 1.6.2009 is only a communication and not a final decision of the ban imposed. The petitioner had already gone through the process of selection on 9.3.2009 and was empanelled on 19.3.2009 whereas the ban imposed was subsequent thereto.

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Mr. Manoj Bhandari has also contended that prior to the circular issued on 25.5.2009, the General Manger of different Zones had been delegated with discretionary powers for considering the case for providing alternative appointment to medically unfit empanelled candidates, now the Board's circular dated 25.5.2009 would operate against the petitioner, since the circular specified that alternative appointment to medically unfit candidates empanelled by Railway Recruitment Board in Group-C and Group-D posts could not be offered. This contention is noted only to be rejected. It is well settled principle of law that any appointments which are to be made, would be governed by the rules and law existing as on the date when the posts were advertised. Any amendment during the process of selection would only operate prospectively and would have no retrospective effect.

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In Hemani Malhotra v. High Court of Delhi,

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(2008) 7 SCC 11 , challenge was made to a selection where minimum marks were not prescribed for viva voce before the commencement of selection process and the authorities added an additional requirement/qualification that the candidate should secure minimum marks in the interview after the selection process had commenced. The Hon'ble Supreme Court held that changing rules of the game during selection process or when it was over, was not permissible. It was further held that:-

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“14. It is an admitted position that at the beginning of the selection process, no minimum cut off marks for viva-voce were prescribed for Delhi Higher Judicial Service Examination, 2006. The question, therefore, which arises for consideration of the Court is whether introduction of the requirement of minimum marks for interview, after the entire selection process was completed would amount to changing the rules of the game after the game was played. This Court notices that in K.Manjusree vs. the State of A.P., the question posed for consideration of this Court in the instant petitions was considered and answered in the following terms: (2008) 3 SCC 512)

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“33. The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt

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that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.”

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From the proposition of law laid down by this Court in the above mentioned case it is evident that previous procedure was not to have any minimum marks for viva-voce. Therefore, prescribing minimum marks for viva-voce was not permissible at all after the written test was conducted.

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15. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva-voce, but if minimum marks are not prescribed for viva-voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks

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in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva-voce, test was illegal.”

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Further reliance can be placed on other judicial pronouncements to the same effect. (1) P. Ganeshwar Rao and others v. State of Andhra Pradesh and others, 1988 (Supp) SCC 740, (2) State of Rajasthan v. R. Dayal and others, (1997) 10 SCC 419 and (3) K. Manjusree v. State of Andhra Pradesh and anr., (2008) 3 SCC 512.

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Similarly, in the present case, the Railways Board had advertised for two posts to group-D posts in the sports quota on 12.1.2009. The petitioner was duly selected and letter of appointment was to follow. Since the same was not issued, he filed the original application, which came to be allowed with a direction that he be offered the appointment. The circular dated 25.5.2009 was also issued subsequently by which alternate appointment could no longer be offered to successful candidates who were found medically unfit and the circular would have no bearing on the selection process which had already commenced. Even the decision to ban recruitment on 1.6.2009 was subsequent to the selection process having commenced.

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Considering the facts of the case, we are of the opinion that the applicant-respondent is required to be considered for appointment by the authorities concerned to the post that was advertised on 12.1.2009. The learned

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Tribunal has erred to the extent of directing that the appointment be offered to him. At best the respondentapplicant would be entitled for consideration for appointment to the post, as per the rules/circulars which existed when the advertisement was issued.

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Therefore, the order of the learned Tribunal is modified to the extent that the respondent would be entitled to be considered for appointment as per the rules/circulars which existed when the post was advertised on 12.1.2009. The authorities are required to consider the case for appointment within a period of two months from the date of receipt of certified copy of this order.

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With the above observations, the writ petition is disposed of.

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(JAISHREE THAKUR),J (GOVIND MATHUR),J.

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mlt

Union of India and Anr. v. Surendra Gund

Case brief

What is this about?

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Union of India and Anr. v. Surendra Gund

Case brief

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