Union of India & Others v Ajith D. S/o Devadas and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 28TH DAY OF JANUARY 2020 / 8TH MAGHA, 1941** **OP (CAT).No.275 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OA 712/2016 DATED 12-042019 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/S:** - **1 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER,SOUTHERN RAILWAY, HEADQUARTERS OFFICE,PARK TOWN.P.O, CHENNAI-600003.** - **2 THE DEPUTY PERSONNEL OFFICER, SOUTHERN RAILWAY,HEADQUARTERS OFFICE,PARK TOWN.P.O,CHENNAI-600003.** - **3 THE CHIEF PERSONNEL OFFICER, SOUTHERN RAILWAY,HEADQUARTERS OFFICE,PARK TOWN.P.O,CHENNAI-600003.** - **4 THE CHAIRMAN, RAILWAY BOARD,RAIL BHAVAN,NEW DELHI-110001. BY ADV. SRI.A.DINESH RAO, SC, RAILWAYS** ## **RESPONDENT/S:** - **1 AJITH.D. S/O DEVADAS,CHEMMINI PRAMBU HOUSE,PARLI.P.O, PALAKKAD DT.678612.** - **2 KANAKALATHA.K.C, W/O.SIVADAS,G KATTUPADAM HOUSE,MUDALAMADA.P.O,678507,PALAKKAD DISTRICT.** _**OP(CAT).275/19**_ 2 - **3 SHIJI .R.** - **D/O RAJAN.K,ANAKKAD HOUSE,PATTANCHERRY.P.O,678532, PALAKKAD DISTRICT.** - **4 SATHEESH.K, S/O KALADHARAN.CTHONIPALAAM HOUSE, THEKKE DESOM.P.O,PALAKKAD DISTRICT-678553.** - **5 ABHILASH.C.C, S/O CHANDRAN,CHANGANAR HOUSE,ANAMARI.P.O,KOLLENGODE, PALAKKAD DISTRICT-678506.** - **6 SOBHANA.C.K, D/O KRISHNAN KUTTY,CHENNAM KUNNU HOUSE,KIZHAKKUMPURAM.P.O,MANNUR-678642, PALAKKAD DISTRICT.** - **7 SEEJIN.M.V, S/O VISWANATHAN,MUTHUPPARAMBIL HOUSE, MANAKULANGARA.P.O,KODAGARA-680684, TRISCHUR DISTRICT.** - **8 RAJESH.S, S/O SUNDARAN,NORTH VILLAGE,ANJUMOORTHY.P.O, PALAKKAD DISTRICT-678682.** - **9 VINOD.V, S/O VASU.A,MUNIDYAN PARAMBU HOUSE, ANAMARI.P.O,KOLLENGODE,PALAKKAD DISTRICT-678506.** - **10 RAJENDRAN.K.N, S/O CHATHU.K.N,KARIMPAN NATAKKAL,PERODE PORT, NALLAPURAM(VIA),673504.** - **11 BINDHU.K, D/O DAMODHARAN,KANNAMBATU,IRINGOL.P.O, CALICUT,PALAKKAD DISTRICT-673521.** - **12 PRASANTH.P, S/O NARAYANAN,PALOLI HOUSE,AVADUKKA.P.O, PERUVANNAMUZHI-673528,CALICUT DISTRICT.** - **13 MOHAMMED FAISAL.K.K, S/O MOHAMMED ABDUL REHMAN,KANAKKUZHI, PADINJAREPARAMBIL HOUSE,VALIAPARAMBU.P.O, MALAPPURAM-673637.** _**OP(CAT).275/19**_ 3 - **14 SHIMNA.D.R,** - **D/O DAMODHARAN NAIR,KOOVALE HOUSE,MEPPAYOOR .P.O,PERAMBRA(VIA),CALICUT DISTRICT-673524.** - **15 SHA ANIYAN, S/O ANIYAN.K.V(LATE),MADATHI PARAMBIL HOUSE, TRIKKAKARA.P.O,KENNEDY MUKKU-682021,ERNAKULAM DISTRICT.** - **16 VIPIN JACOB.P.X, S/O XAVIER,PALLIPARAMBIL HOUSE,ARTHUNGAL.P.O, CHERTHALA-688530,ALAPPUZHA DISTRICT.** - **17 SHIJU.K, S/O KESAVAN,VADAKKE PADAM,NARAM HUZHI,CHITOOR.P.O,PALAKKAD DISTRICT-678101.** - **18 MUNIASWAMY.V, S/.O VADIVEL.S,NO.30,THIRUVALLUVAR NAGAR, SANKARAN KOVIL,THIRUNELVELI DISTRICT-627756.** - **19 PRAFULLAL.K.L, S/O.LALASAN,ANCHAL HOUSE,VEZHAPRA.P.O, ALAPPUZHA DISTRICT-689595.** - **20 MOHAMMED SADHIQUE.M.M, S/O M.P.MOIDEEN,MULLASSERY HOUSE,NEDUVANNOOR, CHOVARA.P.O-683571,ERNAKULAM DISTRICT.** - **21 DIVYA PUTHEN VEETTIL, D/O RAGHAVAN,ARANGATHU MEETHAL,KAIPATHUR.P.O,MEPPAYUR(VIA), CALICUT UNIVERSITY-673524.** - **22 PRASANTH.K.S, S/O SUBRAMANIAN,KANDAMKAKKARE, KATTIKKUNNU,CHEMBU.P.O,KOTTAYAM DISTRICT-686608.** - **23 VEHEEDA.U, W/O ABDU RAHMAN ARIZ,CHEEDIYEDATH POYIL HOUSE, EKAROOL.P.O,CALICUT DISTRICT-673574.** - **24 MOHAMMED FAIZAL.K, S/O UMMER,THARAMANNIL HOUSE,VAJAPPARAPPADI, MANJARE.P.O,MALAPPURAM DISTRICT-676121.** - **25 SINESH.K.P, S/O PRABHAKARAN.K,KOTTAYIL HOUSE,NADUVATHAPARA.P.O, PERINGOTTUKURISSYM,PALAKKAD DISTRICT-678574.** _**OP(CAT).275/19**_ 4 **26 ROSHEN.A.J, S/O A.P.JEROM,ATTIPETTY HOUSE,KUTHIRAPANTHY WARD,THIRUVAMBADY.P.O,ALLEPPEY-688002.** **R1, R3-13, R15, R17, R19, R21, R23, R25-26 BY ADV. SRI.T.C.GOVINDA SWAMY R1, R3-13, R15, R17, R19, R21, R23, R25-26 BY ADV. SMT.KALA T.GOPI** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 28-01-2020, THE COURT ON 28-01-2020 DELIVERED THE FOLLOWING:** _**OP(CAT).275/19**_ 5 ## **K.VINOD CHANDRAN & V.G.ARUN, JJ.** ## **----------------------------------------------O.P(CAT).No. 275 of 2019 ----------------------------------------------Dated this the 28[th] day of January, 2020** ## **JUDGMENT** ## _**Vinod Chandran, J.**_ The original petition has been filed on the ground that the issue arising in the instant case had been settled as per the judgment of this Court in Annexure A15, affirming the order of the Tribunal at Annexure A9. The issue agitated in the earlier round was also with respect to the entitlement of the applicants herein, for appointment to the vacancies which were left unfilled. The ground alleged to impugn the order of the CAT is _resjudicata._ 2. Annexure A1 notification was issued to fill up 3592 vacancies in the Southern Railways and 505 vacancies in the Integrated Coach Factory. The selection procedure was one comprising of a written test and physical efficiency test, after which candidates in excess of 20% of the vacancies, would be called for document verification. After document verification, there is a medical exam prescribed, on clearing which, the appointments could be made. All the applicants were called for document verification and they cleared the medical exam also. However, they were not appointed, since they were persons who were _**OP(CAT).275/19**_ 6 entitled to be called for document verification only on the basis of the relaxation available in the marks as per the notification. Annexure A1 notification provided for 40% marks for unreserved candidates (general candidates) and 30% for OBC candidates. The claim of all the persons, who obtained above 30% but below 40%, initially was for appointment to the general category vacancies left unfilled. The Tribunal by Annexure A9 categorically found that there could be no appointments made of candidates made eligible by reason only of relaxation in the notification, in the open competition or general category vacancies. The aforesaid decision was upheld by this Court as per Annexure A15. However, noticing the contention of the petitioners that the number of vacancies filled up in each category were not separately notified, this Court directed separate list to be published which was carried out as per Annexures A16 and A17. Liberty was also reserved to agitate any legitimate cause arising in accordance with law. 3. On the publication of Annexures A16 and A17 lists, the applicants again approached the Tribunal contending that all the 884 vacancies available to the OBC were not filled up and there were NJD vacancies. The Railways also admitted that there were 32 NJD vacancies. The Tribunal, relying on the decision of the Honourable Supreme Court in _**Dinesh Kumar Kashyap & Othrs v. South East Central Railway & Others**_ in SLP.No.6165 of 2018 found that the _**OP(CAT).275/19**_ 7 relief as available in the Apex Court decision should be available to the present applicants also. 4. We do not find any _res judicata_ insofar as the applicants at this point do not claim any appointment to the general category vacancies and confine their claims to the NJD vacancies of the posts set apart for OBC candidates. The denial of appointment to the applicants by the Railways is sought to be sustained and reference is made to the undertaking executed by them as is available at Annexure R1 which is asserted to be as per the prescription in Annexure R2. Annexure R2 requires the Railways to call candidates in excess of the vacancies up to 20% so as to avoid shortfall in the panel for appointment. Exhibit R2 also makes it clear that the mere calling of a candidate for document verification does not entitle appointment in the Railways. In fact, the said reservation is only insofar as the panel for appointment being filled up, even before the entire candidates called; which is in excess of the vacancies notified, are appointed. This is only to resist any claim made by the candidates called for document verification raising a claim for appointment in excess of the notified vacancies. The aforesaid reservation cannot be taken as a _carte blanche_ to the Railways to deny appointments to certain persons called for document verification without assigning any reason when there is actually a shortfall in the panel of appointment. _**OP(CAT).275/19**_ 8 5. In this context, we notice the following sentence in paragraph 4.2 in Annexure R2; “ _4.(ii)_ ... _In case, the Railway administration after giving stipulated joining time to the selected candidates, certifies that certain number of candidates have not turned up within the specified period, another panel equal to the number of candidates finally not turning up for taking appointment will be supplied by RRC.”_ 6. Hence, when certain number of candidates do not turn up within the specified period, another panel equal to the number of candidates will have to be supplied by the RRC which can only be from the persons who are called for document verification. In such circumstances, we find the contention raised by the applicants for appointment to the remaining post in the OBC category to be justified. 7. The Railways has a further contention that even if such an appointment is made to the 32 NJD vacancies, only nine out of the applicants can be accommodated. An affidavit has been filed as Exhibit P10 (page 609). In the context of the said argument, we have to notice the operative portion of the decision of the Honourable Supreme Court which has been extracted by the Tribunal also; _“13. In view of the above, the appeals are allowed. The judgment of the High Court and CAT, Jabalpur Bench are set aside. The appellants are entitled to the benefit of the letter dated 02.07.2008. While allowing the appeals we issue the following directions:_ - _(i) The benefit of this judgment shall only be available to_ _**OP(CAT).275/19**_ 9 _those appellants who had approached the CAT;_ _(ii) The appellants shall not be entitled to any back wages;_ _(iii) The appellants shall, for the purpose of seniority and fixation of pay be placed immediately above the first selected candidates of the selection process which commenced in the year 2012 and, immediately below the candidates of the selection list of 2010 in order of seniority;_ _(iv) The appellants shall be entitled to notional benefits from the date of such deemed appointment only for the purposes of fixation of pay and seniority.”_ The Honourable Supreme Court has specifically noticed that benefit of the judgment shall only be available to those appellants who approached the Central Administrative Tribunal. Any candidate figuring in the select list after document verification, capable of being appointed to the 32 NJD vacancies, who has not approached the Tribunal cannot seek the benefit of this judgment. Likewise any of the applicants who do not come within the next 32, in the list of OBC, after the last OBC candidate appointed cannot also claim the benefit of appointment, especially since as of now there is a subsequent selection carried out. In the above circumstances, we dispose of the original petition making it clear that the Railways will verify the 32 persons available in the OBC category after the last OBC candidate appointed to the 884 vacancies (minus 32) and give appointment to such persons who were among the applicants before the Tribunal. It is the specific contention of the Railways as noticed from the affidavit that only nine of the _**OP(CAT).275/19**_ 10 applicants could be so accommodated. If that be so, only the nine from among the applicants, who come within the 32 number of candidates in the OBC category could be so appointed as per the directions of the Honourable Supreme Court. The original petition is disposed off with the above directions, without any order on costs. Sd/- **VINOD CHANDRAN JUDGE** Sd/- **V.G.ARUN JUDGE** _vgsx_ _**OP(CAT).275/19**_ 11 ## **APPENDIX OF OP (CAT) 275/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE OA NO.712/2016 FILED BY THE RESPONDENTS HEREIN ON 04.8.2016** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN O.A.NO.712/2016 DATED 20.10.2016.** **EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENTS HEREIN IN O.A.NO.712/2016 DATED 15.01.2017. EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE PETITIONERS DATED 15.6.2017. EXHIBIT P5 TRUE COPY OF THE MA FILED BY THE RESPONDENTS HEREIN DATED 04.02.2018 SEEKING STAY. EXHIBIT P6 TRUE COPY OF THE MA NO.180/000320/2018 FILED BY THE RESPONDENTS HEREIN DATED 18.05.2018 SEEKING ADMISSION EXHIBIT P7 TRUE COPY OF THE MA FILED BY THE RESPONDENTS HEREIN DATED 12.8.2018 SEEKING ADMISSION. EXHIBIT P8 TRUE COPY OF THE MA NO.180/001283/2018 FILED BY THE RESPONDENTS HEREIN DATED 26.11.2018 SEEKING ADMISSION. EXHIBIT P9 TRUE COPY OF THE SUPREME COURT JUDGEMENT DATED 7.11.2018 IN CIVIL APPEAL NO.1136011363 OF 2018(ARISING OUT OF SLP(CIVIL)NOS.29668-29671/2017) EXHIBIT P10 TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONERS DATED 11.3.2019 EXHIBIT P11 TRUE COPY OF THE ORDER OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH IN O.A.NO.712/2016 DATED 12.4.2019.**