THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR: TRIPURA: MIZORAM AND ARUNACHAL PRADESH)

Writ Petition (C) No. 2562 OF 2008

SRI PRODIP SEN GUPTA, S/O. SHRI SUNIL RANJAN SEN GUPTA, R/O. NATUN PARA, COLLEGE ROAD, P.O. & P.S. – BONGAIGAON, DIST – BONGAIGAON, ASSAM, PIN NO. 783380, AT PRESENT WORKING AS SECTION ENGINEER TOOL ROAD/WORK SHOP, NEW BONGAIGAON, RAILWAY WORK SHOP, P.O. NEW BONGAIGAON, DIST – BONGAIGAON, ASSAM. ………… Petitioner -Versus-

1. UNION OF INDIA, REPRESENTED BY GENERAL MANAGER, N.F. RAILWAY, HEAD QUARTER, P.O. MALIGAON, GUWAHATI – 781011, DISTRICT – KAMRUP, ASSAM.

2. GENERAL MANAGER (P)/MLG HEAD, QUARTER MALIGAON, GUWAHATI – 781011, DIST – KAMRUP, ASSAM.

3. THE CHIEF WORKSHOP MANAGER CARRIAGE AND WAGON WORKSHOP N.F. RAILWAY/NEW BONGAIGAON, DISTRICT – BONGAIGAON, ASSAM.

4. ASSISTANT PERSONAL OFFICER/WORKSHOP/ NEW BONGAIGAON, ASSAM.

5. CENTRAL ADMINISTRATIVE TRIBUNAL, GUWAHATI BENCH, REPRESENTED BY THE VICE-CHAIRMAN/REGISTRAR, GUWAHATI RAJGARH ROAD, GUWAHATI – 781005, DISTRICT – KAMRUP (ASSAM).

6. SHRI GAUTAM DOSTIDAR, M.G/C.LS (MTRE GAUGE/CARRIAGE, LIFTING SHOP) AT PRESENT WORKING/TRAINING UNDER SUPERVISER TRAINING CENTRE, N.F. RAILWAY, NEW BONGAIGAON, DISTRICT – BONGAIGAON (ASSAM).

7. SHRI PRADIP DEY, C.B.S (CARRIAGE BOUGLE SHOP) AT PRESENT WORKING/TRAINING UNDER SUPERVISER TRAINING CENTRE, N.F. RAILWAY, NEW BONGAIGAON, DIST – BONGAIGAON (ASSAM).

8. SHRI MANOJ BAIDYA,

9. SHRI UTTAM KUMAR SARKAR,

10. SHRI NARENDRA NARAYAN ROY,

11. SHRI PANKAJ CHAKRABORTY,

12. SHRI JAVANATH BASUMATARY,

13. SHRI ANUKUL CHANDRA DAS, Sl. 6 TO 12 ALL ARE AT PRESENT WORKING/TRAINING UNDER SUPERVISOR TRAINING CENTRE, N.F. RAILWAY, NEW BONGAIGAON, DIST – BONGAIGAON, (ASSAM). ..…… Respondents

WPC No. 2562/2008 Page 2 of 2

BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE P.K. SAIKIA

For the Petitioner : Mr. BR Dey, Senior Advocate. Ms. B Sarkar, Advocate. Mr. P Sen, Advocate. Mr. R Dhar, Advocate. Mr. SK Sengupta, Advocate.

For the Respondents : Mr. UK Nair, SC, N.F. Railway. Mr. A Chetri, Advocate.

Date of Hearing : 07.05.2012 Date of Judgment : 07.05.2012

JUDGMENT AND ORDER (ORAL) Amitava Roy, J In assailment is the judgment and order dated 04.04.2008, passed by the learned Central Administrative Tribunal, Guwahati

Bench, Guwahati (for short hereafter referred to as the Tribunal), rejecting the applicant/writ petitioner’s challenge to the selection process initiated by the advertisement dated 15.12.2005 for filling up the DP Quota for JE/II in the Mechanical Wing under CWM/NFR/NBQS by selection against 25% segment, as contemplated under Rule 141 (ii) of the Indian Railway Establishment Code (for short hereafter also referred to as the Code).

02. We have heard Mr. BR Dey, Senior Advocate for the writ

petitioner and Mr. UK Nair assisted by Mr. Chetri, learned Standing

Counsel, N.F. Railway for the respondents.

03. An abridged version of the pleaded facts would project the

factual background. The writ petitioner at the relevant point of time

was Apprentice Mechanic detailed under the Workshop (M&P), WPC No. 2562/2008 Page 3 of 3

Guwahati at New Bongaigaon Railway Workshop. On 15.12.2005 an advertisement was published for filling up the following vacancies against the aforementioned quota under Rule 141 of the Code by a selection process from the Intermediate Apprentice (also designated as

Apprentice Mechanics): -

Workshop cadre comprising of Carriage & of UR = 06, SC = 01 & ST = 01 = Carriage & Other Trades except machine & 08 Millwright Trades

Workshop (M&P) Cadre-Comprising of UR = 03, SC = Nil & ST = Nil Machine & Millwright Trades. = 03

Total UR 09, SC 01 & ST 01 11

04. The academic qualifications and other conditions of

eligibility were laid down therein. This exercise, as a matter of fact,

was one to enable the Intermediate Apprentices possessed of pre

revised qualifications to partake therein. Incidentally, meanwhile, the

earlier academic qualification of matriculation or equivalent thereto

had been raised to 10 + 2 in the Science stream.

As would be apparent from the above extract, 8 and 3

vacancies respectively, in the Workshop Cadre comprising of Carriage &

Other Trades except Machine & Millwright Trades and Workshop (M&P)

Cadre respectively had been contemplated, totaling 11. The writ

petitioner, accordingly, took the written test, which was held on

26.08.2006 and in the results declared thereafter, he was shown to be

unsuccessful. By an office memorandum dated 09.10.2006, on the basis

of the performance in the written examination, 8 candidates were

selected for appointment to the post of JE/II in the scale of Rs.5000-

8000/-. The list included two candidates, namely, Sri Pradip Dey and WPC No. 2562/2008 Page 4 of 4

Sri Gautam Dastidar, who, though, belonged to the Workshop Cadre were accommodated against two vacancies with the Workshop (M&P)

Cadre. The writ petitioner perceiving that the selection of the above two candidates against the vacancies earmarked for M&P Cadre

Workshop was impermissible in law and that the selection process had been deliberately tilted towards the candidates of the Workshop Cadre, approached the learned Tribunal at the first instance with OA

No.59/2007, which was disposed of with a direction to the respondents

to dispose of his representation ventilating identical grievances. The

representation having been rejected, the applicant/writ petitioner

again approached the Tribunal with OA No.196/2007, which, by the

impugned judgment and order, has been dismissed, negating the

assailments.

05. The respondents/Railways in their written statement before

the learned Tribunal, in substance, had pleaded that though, while

disclosing the vacancies, those were projected vis-a-vis Workshop

Cadre and Workshop (M&P) Cadre, these, in fact, belong to the

Mechanical Department under the Railways and it had never been

intended to compartmentalize the same for the purpose of selection

and accommodation of the candidates cadre wise. According to the

respondents/Railways, a common written test was held for all the

candidates, who were construed to be a homogeneous class and after

the selection, allotments were made against the vacancies depending

on administrative exigencies. Moreover, the applicant/writ petitioner

having failed in the common written test, he has no locus standi, either WPC No. 2562/2008 Page 5 of 5 to impugn the selection process or the allotment of vacancies to the successful candidates.

06. Whereas, Mr. Dey, has insisted that having regard to the

unambiguous disclosures in the advertisement and the clearly intended

bifurcation of the posts cadre wise, no appointment of any candidate

of Workshop Cadre against any vacancy in the Workshop (M&P) Cadre

was allowable in law, Mr. Nair, has abided by the pleaded stand of the

N.F. Railways as summarized hereinabove. In order to substantiate the

challenge laid by the writ petitioner, Mr. Dey has placed reliance on a

decision of the Apex Court in R.S. JAYAKUMAR & ORS. VS. STATE OF

KERALA & ORS., IX (2007) SLT 614.

07. We have extended our thoughtful consideration to the rival

pleadings and the arguments advanced. That the selection process had

been conducted in terms of Rule 141 of the Code is an admitted fact.

The writ petitioner as well as the candidates selected and appointed

vide office memorandum dated 09.10.2006 were eligible in terms of

the prescriptions of this provision of the Code. That the writ petitioner

in the written test held commonly for all the candidates had been

unsuccessful is also not disputed.

08. The above quoted extract from the advertisement makes it

obvious that while disclosing the vacancies, the concerned authorities

had indicated those cadre wise. To reiterate, 8 vacancies were in the

Workshop Cadre and 3 for the Workshop (M&P) Cadre. There is no

wrangle at the Bar that a common written test was held for all the

candidates vying for these posts. No other provision, except Rule 141 of WPC No. 2562/2008 Page 6 of 6 the Code, has been brought to our notice to demonstrate any distinguishing feature either in the conditions of eligibility or the measure of assessment of the candidates for the purpose of their selection against the vacancies cadre wise. The plea advanced on behalf of the respondent/Railways that the Apprentice Mechanics also designated as Intermediate Apprentice Mechanics in the feeder cadre for promotion/selection to the post of JE/II constitute a homogeneous category has remained unrefuted by the writ petitioners. More importantly, the writ applicant/petitioner has failed in the written test. Though, a representation about 6 weeks after the written test had been submitted by him along with those before the authority concerned (Annexure III), there is no whisper with regard to their reservation and cavil on the grounds as urged by them initially before the learned Tribunal and ventilating before this Court.

09. In R.S. JAYAKUMAR & ORS. (Supra), the process involved was

one for selection for undergoing Rangers’ training so as to render the

successful candidates eligible for promotion to the post of Dy.

Rangers/Foresters in the Kerala Forest Subordinate Service. In the

advertisement issued by the Kerala Public Service Commission, it was,

inter alia, mentioned in categorical terms that only approved

probationers and members in the respective category of service would

be eligible to participate in the process of selection. The respondents

in the reported case, though, were neither appointed to the service nor

were approved probationers applied for and were allowed to

participate in the selection and were recommended for the training

course. The challenge to their eligibility qua the prescriptions in the WPC No. 2562/2008 Page 7 of 7 advertisement, they being neither appointed to the service nor approved probationers, were upheld by the Apex Court, propounding

such a departure was impermissible.

Though, incidentally, the learned Senior Counsel for the

writ petitioner has pressed into service this decision to bring home the

point that deviation from the advertised norms is not sanctioned in

law, we, in the facts and circumstances of the case, are unable to lend

our concurrence to this proposition in absence of any material

demonstrating in unmistakable terms that the respondent-Railways in

advertising the vacancies as above, had intended to maintain a distinct

and clear compartmentalization of the vacancies so much so to prohibit

any selected candidate working under the Workshop Cadre to be

appointed against a vacancy in the Workshop (M&P) Cadre. In the

factual premise as above, this decision is of no avail to the writ

petitioners.

10. In the above view of the matter, we find no merit in the

challenge. This petition is, therefore, dismissed. No costs.

JUDGE JUDGE Bc/-