OP (CAT) No. 67 of 2015 (Z) (leading case; connected with OP(CAT) 78/2015 and 80/2015)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA WEDNESDAY, THE 9TH DAY OF MARCH 2016/19TH PHALGUNA, 1937 OP (CAT).No. 67 of 2015 (Z) ---------------------------- AGAINST THE ORDER/JUDGMENT IN OA 175/2014 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED PETITIONER(S): -------------------------- 1. DHANESH T.D. AGED 31 YEARS S/O. DHARMAJAN T.N, THOTTUNGAL HOUSE, EROOR WEST TRIPUNITHURA 682 306, ERNAKULAM DISTRICT. 2. SHA AnIYAN AGED 29 YEARS S/O. ANIYAN K.V(LATE), MADATHI PARAMBIL HOUSE TRIKKAKARA P.O., KENNEDY MUKKU - 682 021 ERNAKULAM DISTRICT. 3. VIPIN JACOB P X AGED 25 YEARS S/O. XAVIER, PALLIPARAMBIL HOUSE, ARTHUNGAL P.O. CHERTHALA - 688 530, ALAPPUZHA DISTRICT. 4. MUHAMMED SADHIQUE M.M AGED 25 YEARS S/O. M.P.MOIDEEN, MULLASSERY HOUSE, NEDUVANNOOR CHOVARA P.O - 683 571, ERNAKULAM DISTRICT. 5. KANAKALATHA K.C AGED 35 YEARS W/O. SIVADAS G, KATTUPADAM HOUSE MUDALAMADA P.O - 678 507, PALAKKAD DISTRICT. 6. PRASANTH P AGED 32 YEARS S/O. NARAYANAN, PALOLI HOUSE, AVADUKKA P.O. PERUVANNAMUZHI - 673 528, CALICUT DISTRICT. 7. SOBHANA C.K AGED 36 YEARS D/O. KRISHNAN KUTTY, CHENNAM KUNNU HOUSE KIZHAKKUMPURAM P.O., MANNUR - 678 642 PALAKKAD DISTRICT. 8. SHIJI R AGED 28 YEARS D/O. RAJAN K, ANAKKAD HOUSE PATTANCHERRY P.O. - 678 532, PALAKKAD DISTRICT. 9. SEEJIN M.V AGED 26 YEARS S/O. VUSWANANTHAN, MUTHUPPARAMBIL HOUSE MANAKULANGARA P.O., KODAGARA - 680 684 TRICHUR DISTRICT. 10. SHIJU K AGED 25 YEARS S/O. KESAVAN, VADAKKE PADAM, NARAM HUZHI CHITTOR P.O., PALAKKAD DISTRICT - 678 101. 11. DIVYA PUTHAN VEETTIL AGED 31 YEARS D/O. RAGHAVAN, ARANGATHU MEETHAL, KALPATHUR P.O. MEPPAYYUR VIA, CALICUT - 673 524. 12. SHIMNA D.R AGED 25 YEARS D/O. DAMODHARAN NAIR, KOOVALE HOUSE, MEPPAYYOOR P.O. PERAMBRA VIA, CALICUT DISTRICT - 673 524. 13. BINDHU K AGED 39 YEARS D/O. DAMODHARAN, KANNAMBATU, IRINGOL P.O. CALICUT PALAKKAD DISTRICT - 673 521. 14. RAJENDRAN K.N AGED 37 YEARS S/O. CHATHU K.N, KARIMPAN NATAKKAL, PEROD PORT NALLAPURAM VIA - 673 504. 15. MOHAMMED FAISAL K.K AGED 37 YEARS S/O. MOHAMMED ABDUL REHMAN, KANAKKUZHI PADINJAREPARAMBIL HOUSE, VALIPARAMBU P.O. MALAPPURAM - 673 637. 16. MOHAMMED FAISAL T AGED 30 YEARS S/O. UMMER, THARAMANNIL HUSE, VAJAPPARAPPADI MANJERI P.O., MALAPPURAM DISTRICT - 676 121. 17. AJITH D AGED 29 YEARS S/O. DEVADAS, CHEMMINI PARAMBU HOUSE, PARLI P.O. PALAKKAD DISTRICT - 678 612. 18. MANEESH V.R AGED 22 YEARS S/O. RAVI C, VETTUKATTIL HOUSE, VADASSERI P.O. PALAKKAD DISRICT - 678 641. 19. ABHILASH C.C AGED 29 YEARS S/O. CHANDRAN, CHANGANAR HOUSE, ANAMARI P.O. KOLLENGODE PALAKKAD DISGTRICT - 678 506. 20. PRAFULLAL A.L AGED 26 YEARS S/O. LALASAN, ANCHIL HOUSE, VEZHAPRA P.O. ALAPPUZHA DISTRICT - 689 595. 21. PRASANTH K.S AGED 27 YEARS S/O. SUBRAMANIAN, KANDAMKAKKARE, KATTIKKUNNU CHEMBU P.O., KOTTAYAM DISTRICT - 686 608. 22. VAHEEDA U AGED 39 YEARS W/O. ABDU RAHMAN ARIS, CHEEDIYEDATH POYIL HOUSE EKAROOL P.O., CALICUT DISTRICT - 673 574. 23. AJESH P.R AGED 24 YEARS S/O.RAVEENDRAN P.S, PARASSERIL HOUSE, MULLARIKUDI P.O. IDUKKI DISTRICT - 685 571. 24. VINOD V AGED 38 YEARS S/O. VASU A., MUNIDYAN PARAMBU HOUSR, ANAMARI P.O. KOLLENGODE, PALAKKAD DISTRICT - 678 506. 25. MANOJ M AGED 27 YEARS S/O. MURUGESAN S, A-3, JAIL QUARTERS TRIVANDRUM ROAD, PALAYAMKOTTAI P.O. THIRUNELVEL DISTRICT - 627 002. 26. MUNIASAMY V AGED 36 YEARS S/O. VADIVEL S, NO.30, THIRUVALLURVAR NAGAR SANKARAN KOVIL, THIRUNELVELI - 627 756. 27. SINESH K.P AGED 33 YEARS S/O. PRABHAKARAN K., KOTTAYIL HOUSE NADUVATHAPARA P.O., PERINGOTTUKURISSYM PALAKKAD DISTRICT - 678 574. 28. SATHEESH K AGED 24 YEARS S/O. KALADHARAN C, THONIPALAM HOUSE, THEKKE DESOM P.O. PALAKKAD DISTRICT - 678 553. 29. RAJESH S AGED 26 YEARS S/O. SUNDARAN, NORTH VILLAGE, ANJUMOORTHY P.O. PALAKKAD DISTRICT - 673 682. BY ADVS.SRI.T.C.GOVINDA SWAMY SMT.KALA T.GOPI SMT.S.SYAMALA DEVI SMT.T.N.SREEKALA SRI.K.JAYAKUMAR (RAVIPURAM) RESPONDENT(S): ---------------------------- 1. UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY HEADQUARTERS OFFICE, PARK TOWN P.O, CHENNAI - 600 003. 2. THE DEPUTY CHIEF PERSONNEL OFFICER/RECRUITMENT SOUTHERN RAILWAY, RAILWAY RECRUITMENT CELL NO.5 DR.P.V.CHERIAN CRESCENT ROAD, EGMORE CHENNAI - 600 008. 3. THE CHIEF PERSONNEL OFFICER SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PART TOWN P.O. CHENNAI - 600 003. R-R BY ADV. SRI.C.S.DIAS,SC, RAILWAYS THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 09-03-2016, ALONG WITH OPCAT. 78/2015, OPCAT. 80/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 67 of 2015 (Z) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- P1 - A TRUE COPY OF THE ORDER OF THE HON'BLE CETRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA NO. 175/2014 DT. 24.11.14. P2 - A TRUE COPY OF THE OA NO. 175/14 DT. 24.11.14 RENDERED BY THIS HON'BLE TRIBUNAL. P3 - A TRUE COPY OF THE REPLY STAEMENT FILED HY THE RESPONDENTS IN OA NO. 175/14 DT. 27.5.14. P4 - A TRUE COPY OF THE REJOINDER DT. 10.6.14 FILED BY THE PETITIONERS IN OA NO. 175/14. P5 - A TRUE COPY OF THE AFFIDAVIT DATED 17.6.2014 FILED ON BEHALF OF THE RESPONDENTS 1 TO 3 AS PER THE DIRECTIONS OF THE HON'BLE CAT. P6 - A TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFICATION BEARING EMPLOYMENT NOTICE NO. RRC 01/2012 DT. 24.8.12 DOWNLOADED FROM THE WEBSITE OF THE RESPONDENT RAILWAY RECUITMENT CELL. RESPONDENT(S)' EXHIBITS NIL --------------------------------------- JJ /TRUE COPY/ P.S.TO JUDGE ## K. SURENDRA MOHAN & P.V.ASHA, JJ. ------------------------------O.P(CAT) NOS.67,78 & 80 OF 2015 ---------------------------------Dated this the 9[th] March, 2016. ## JUDGMENT Surendra Mohan, J. The petitioners in these cases challenge the orders of the Central Administrative Tribunal ('CAT' for short) dismissing their original applications. The petitioners in OP(CAT)67/2015 had filed O.A.175/2014 while the petitioners in OP(CAT) 78/2015 had filed O.A176/2014 and petitioner in OP(CAT) 80/2015 had filed O.A.245/2014. They had filed the original applications challenging the denial of their appointment to Group D posts in the Indian Railways. According to them, they had qualified in the written examination and had come through the other procedures that formed part of the selection process and therefore they ought to have been ranked in the list of candidates selected for appointment. Instead, the OP(CAT)67/2015 & connected cases 2 respondents had followed a policy of pick and choose, selecting only candidates of their choice. By three separate orders, the CAT has dismissed the original applications. Since the contentions raised are common, the cases are considered together and are disposed of by this common judgment. O.P (CAT)67/2015 is treated as the leading case. The facts, pleadings, parties, documents produced etc. are referred to in the manner in which they are referred to in the said case. 2. All the petitioners are persons belonging to the Other Backward Communities (OBC) who had applied for appointment to the Group D posts in the Indian Railways under the quota reserved for OBCs. They had submitted their applications pursuant to an employment notice No:5/2010 dated 15.12.2010. As per the notification, a total number of 3592 Group D vacancies were available for being filled up. The posts included Sweeper cum Porter, Helper Grade II, OP(CAT)67/2015 & connected cases 3 Trackman, Safaiwala etc. in various divisions of the Southern Railway as well as the Integral Coach Factory at Chennai. The petitioners had thereafter appeared for a written examination that was conducted at various places. Those candidates who had qualified in the written examination were subjected to a physical efficiency test (PET). Those who had qualified in the PET were directed to appear for the verification of their documents. The petitioners had completed all the above formalities and therefore, it was incumbent on the part of the respondents to have ranked them. It is alleged that there were sufficient number of vacancies for appointment of all the petitioners. 3. However, contrary to their expectations, the respondents published a first part select list dated 23.1.2013 in which 731 candidates were provisionally selected and recommended for appointment to various posts. A copy of the OP(CAT)67/2015 & connected cases 4 said select list was produced as Annexure A4 in Ext.P2. The reason stated for preparing a part select list was that, there was urgency to fill up the Safety Category vacancies. Therefore, the list of 731 candidates who were found to be fit was published. It was specifically stated that, the list was provisional and that the final select list would be published later on. 4. Later on, a second part select list consisting of 1702 candidates was prepared. Thereafter a combined list of all the candidates in both the lists was published on 15.3.2013, a copy of which is Anneuxre A5 in Ext.P2. Thus, a total number of 2929 candidates were appointed against 3592 vacancies that were notified. It was contended by the petitioners that, even out of the persons who have been included in the select list Annexure A5, there are many who have not joined. The remaining vacancies were also available for being filled up. In OP(CAT)67/2015 & connected cases 5 spite of the above, they were not appointed. It is their case that, as many as 800 of the notified vacancies remain unfilled and therefore there is no justification for not appointing all the qualified persons including the petitioners. 5. The contentions of the petitioners were disputed by the respondents. According to the reply statement filed, out of 3592 vacancies, 3087 vacancies were in the Southern Railways while 505 vacancies were in the Integrated Coach Factory. Only 9889 candidates passed the written test. After the selection process, 3456 candidates qualified in the PET. Though 20% over and above the number of vacancies notified were to be called for document verification, only 3207 candidates were available. After the verification of the documents, the candidates who were declared to be medically fit have been recommended. According to the details furnished by the respondents, the total number of candidates OP(CAT)67/2015 & connected cases 6 so recommended was 2882. It was therefore contended that, the selection process was conducted in an impartial manner and that there was no discrepancy in the procedure that was adopted. 6. The CAT considered the rival contentions, went into the figures of the vacancies as well as the number of the candidates provided by both parties and found that, there was absolutely no material or evidence available to justify a conclusion that there was any discrepancy in the recruitment procedure that was adopted. However, since no consolidated list of the recommended candidates had been published even as on the date of the order of the CAT, a direction was issued to the respondents to publish a combined list of all candidates who have been recommended for appointment. Accordingly all the O.As were dismissed. Thereafter, in compliance with the direction issued by the CAT, it is on record that, the OP(CAT)67/2015 & connected cases 7 respondents have published a combined list of the total number of candidates recommended for appointment. The list produced before us is Ext.P2 which shows that the total number of candidates recommended is 3010. 7. Adv.T.C.Govindaswamy who appears for the petitioners contends that the panel of candidates recommended should be equal to the number of vacancies notified. In the present case, the total number of vacancies originally notified was 3592. Therefore, even as per the combined list published now only 3010 candidates have been recommended, evidencing a shortfall of 582 candidates. It is contended that, the petitioners are entitled to be recommended for appointment to the said vacancies. It is further pointed out that, a consolidated list of candidates was necessary to have been published in the first place itself. The said procedure not having been adopted, the selection is bad. OP(CAT)67/2015 & connected cases 8 The procedure of publishing part lists was intended only to favour their own candidates, it is contended. It is further pointed out that candidates in excess of 20% of the notified vacancies ought to have been included in the rank list. Omission to do so has prevented the petitioner from claiming the benefit of being recommended for appointment to the non-joining vacancies as well as the vacancies that may arise during the period of validity of the list. The above aspects not having been considered by the CAT, it is contended that the impugned order is liable to be set aside. 8. Adv.C.S.Dias who appears for the Railways on the other hand contends that, since the vacancies notified were more than 3500, finalisation of the selection process in respect of all the notified vacancies was found to be cumbersome by the Railway Recruitment Cell (RRC). However, appointments had to be made without delay to the Safety OP(CAT)67/2015 & connected cases 9 Category vacancies. It was considering the above aspects that part lists were published. There is no procedural irregularity in doing so, according to the counsel. According to the learned counsel, the petitioners in these cases were all persons who had submitted their applications for being recruited under the OBC category. There were only 884 vacancies available for the OBCs. All the 884 vacancies have been filled up by empanelling the successful candidates. All the petitioners have secured marks lesser than the 884 OBC candidates. Therefore, according to the inter se merit among OBC candidates the petitioners were not ranked. It is contended that at present there are no vacancies available in the OBC category. The vacancies to which reference has been made by the petitioners are available in the general category, to which the petitioners cannot stake a claim. It is pointed out by the learned counsel that, though contentions regarding OP(CAT)67/2015 & connected cases 10 violation of procedure, favouritism etc. have been put forward , there are absolutely no evidence or material available to support the said contentions. Therefore, it is contended that the CAT had rightly dismissed the O.As. The counsel also placed reliance on the decision of the Apex Court in State of Orissa v. Rajkishore Nanda [(2010)6 SCC 777] to contend that, no appointment in respect of posts in excess of the number notified could be made. Apart from the above it is contended that the earlier selection process had also been the subject matter of challenge before this Court in OP(CAT) 1656/2013, pointing out similar discrepancies. A Division Bench of this Court has, as per judgment dated 23.8.2013 dismissed the said original petition. Therefore it is contended that these original petitions are also, only to be dismissed. 9. We have heard the respective counsel at length. We have also been taken through the elaborate pleadings that are OP(CAT)67/2015 & connected cases 11 made in these cases in the form of a counter affidavit and reply affidavit. We have been taken through the lists that are produced to point out various discrepancies. However, we do not find anything substantial in the objections that are put forward. The various discrepancies that are sought to be made out by the counsel for the petitioners are based on mere surmises and assumptions. Such circumstances, according to us, are not sufficient to find fault with the selection procedure that has been adopted. We notice that the CAT has considered the contentions in the proper perspective. As rightly pointed out by the counsel for the Railways, it may be true that some of the vacancies notified originally were remaining unfilled. But, the fact remains that the petitioners have no right to claim appointments to such vacancies. It is not in dispute that the total number of OBC vacancies available was only 884. According to the respondents, all the 884 OP(CAT)67/2015 & connected cases 12 vacancies have been filled up. The counsel for the petitioners has disputed the above assertion. However, there is nothing on record to conclude that the assertion made by the respondents is wrong. Therefore we accept the contention of the respondents that all the 884 OBC vacancies have been filled up. The petitioners being persons who had applied for selection under the category of OBC, it is not open to them to contend that they ought to be appointed to the unreserved vacancies. It is further contended that, the consolidated list containing the names of all the candidates who have been recommended was published only after the original applications were finally disposed of. It is not in dispute that, the combined list was published only pursuant to the direction issued by the CAT. However, it is contended that, the omission to publish such a combined list earlier causes prejudice to the rights of the petitioners. It is a OP(CAT)67/2015 & connected cases 13 further contention of the petitioners that though the Railways had notified the vacancies under the different categories of general merit, OBC as well as other communities separately, no separate lists of the selected candidates were published with respect to each of the categories notified. No reason is stated as to why no separate lists for each of the categories were published. Therefore, it is only appropriate that the Railways publish the lists of selected candidates under each of the categories notified, viz., the general merit, OBC etc. separately. Such separate lists of selected candidates shall be published within a period of one month of the date of receipt of a copy of this judgment. Since the combined list was published only after the order the CAT and the separate lists as directed above are yet to be published, we leave open the rights of the petitioners to seek any relief to which they are eligible, in accordance with law, if they have any subsisting OP(CAT)67/2015 & connected cases 14 grievance with respect thereof, before the appropriate forum. We do not find any grounds to interfere with the orders of the CAT. These original petitions are therefore dismissed. Sd/K. SURENDRA MOHAN Judge Sd/P.V.ASHA Judge jj /True copy/ OP(CAT)67/2015 & connected cases 15