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PETITIONER:

V. CHARULATHA & ORS.

Vs.

RESPONDENT:

S. GUNALAN, CHAIRMAN, RAILWAY RECRUITMENT BOARD, MADRAS, &

DATE OF JUDGMENT04/04/1995

BENCH:

SAHAI, R.M. (J)

BENCH:

SAHAI, R.M. (J)

MAJMUDAR S.B. (J)

CITATION:

JT 1995 (3) 557 1995 SCALE (2)614

ACT:

HEADNOTE:

JUDGMENT:

ORDER

R.M. SAHAI, J.

1. These applications have arisen in extremely unfortunate

circumstance. The anxiety of this Court to avoid taking any

drastic action appears to have not been property appreciated

and even though two years have elapsed since the learned Ad-

ditional Solicitor General assured the Court that the orders

passed by the High Court and this Court shall be compiled

with latest by March, 1995 and persuaded the Court to frame

a time schedule, but are sorry to say that except gaining

time and putting excuses nothing has been done leaving no

option to this Court except to pass this order.

2. A little background is necessary to appreciate the

unpleasant observation made by us. In 1987 the Railway

Recruitment Board, Madras, advertised nearly 500 posts in

the non-technical categories like Commercial Clerks, Ticket

Collectors, Train Clerks, etc. in the Indian Railways.

Written examinations were held on 15th November, 1987 in

3997 centres as large number of candidates had applied

pursuant to the employment notice. On the next day a news

item was published in one of the newspapers expressing

concern about the possible leakage of the question papers,

but nothing happened and the results were published on 7th

September, 1988. Interviews were held on 10th October,

1988. Since some of the candidates who had secured very

high marks in the written examination secured very poor

marks in the interview, the authorities decided to hold a

second written examination. Letters were issued in April,

1989. On the very next day, some of the aggrieved can-

didates, who had appeared in the examination and had been

called for interview approached the Central Administrative

Tribunal and some others approached the High Court. On 13th

June, 1989 the Central Administrative Tribunal held that the

Railway Recruitment Board was entitled to conduct the second

written examination in respect of those candidates who had

been declared eligible for interview. It further held that

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the marks obtained in the first written examination as well

as in the second written examination should be totalled and

the average be obtained and it should be considered to be

the final marks for purposes of selection. Other batch of

petitions was heard by the High Court. The appellants

claimed that after constitution of Tribunal, the High Court

had no jurisdiction. It was negatived. The appeals filed

before the Division Bench were also dismissed. Against this

order the Railways approached this Court and obtained leave

(C.A. Nos. 32-70/91). Since no interim order was granted by

this Court, the learned Single Judge of the Madras High

559

Court heard writ petitions and quashed the order passed by

the authorities on 15th April, 1989 for holding second

examination. He further directed that the list of

successful candidates may be published on or before 31st

March, 1991. This judgment was affirmed by the Division

Bench on 15th April, 1991. Against this judgment the

Railways approached this Court and leave was granted on 3rd

June, 1991 and it was directed that these appeals may be

connected with the earlier Civil Appeals which were directed

against the order passed by the High Court repelling the

claim of the appellants that the High Court had no

jurisdiction to decide the petitions. Both the sets of

appeals were listed on various dates in 1991 but they could

not be decided.

3. Therefore, on 18th September, 1992 this Court directed

the appellants to appoint the selected candidates according

to their merits in the existing vacancies within a period of

two weeks from the date the order was passed. But nothing

substantial was done with the result that contempt ap-

plications were filed. These applications and the appeals

came to be disposed of on 30th April, 1993. The order is

extracted below:

"The learned Additional Solicitor General

appearing on behalf of the appellant

(Chairman, Railway Recruitment Board, Madras)

and for the respondents (alleged contemner in

the contempt petitions) states that the

appellant has selected the candidates and sent

a list containing 775 selected candidates as

per the original requisition pursuant to the

order of this Court to three authorities,

namely, (1) Chief Personnel Officer, Southern

Railway, Madras (2) Financial Advisor and

Chief Accounts Officer, Southern Railway, Ma-

dras, (3) Chief Personnel Officer, Integral

Coach, Parambur, Madras. He further states

that as on present date the appellant has

nothing to do with the appointments of the

selected candidates and it is for the

appointing authorities to appoint and fill up

the vacancies as notified from the list of the

selected candidates according to their merit.

Since this matter is pending for quite a long

time since the institution of the proceedings

before the High Court, we hope and trust that

the appointing authorities to whom a separate

selected list of candidates is stated to have

been sent, would take appropriate and

expeditious steps in appointing the

candidates, if necessary, by relaxing their

age limit by taking into consideration their

age on the date of submission of the

applications. The interim order passed on

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18.9.92 is modified to this extent.

As the learned Solicitor General has stated

that the appellant has nothing to do with the

appointments and the selected list has already

been forwarded, under these circumstances the

appeals have practically become infructuous

and hence the appeals are dismissed. I.As. in

the appeals consequently stand dismissed.

The Office is directed to send a copy of the

order to above mentioned appointing

authorities.

As we have now dismissed the appeals, no

action is called for in the contempt

petitions. Accordingly, these contempt

petitions are disposed of."

Thus it was after a lapse of nearly two years since the

order was passed that it was brought to the notice of this

Court that the appellant had nothing to do with appointments

and it was the responsibility of the appointing authority.

Therefore, on 27th September, 1993 this Court di-

560

rected notice to be issued to the Chief Personnel Officer,

Southern Railway, Madras, Financial Advisor and Chief

Accounts Officer, Southern Railway, Madras, and the Chief

Personnel Officer, Integral Coach, Parambur, Madras. It was

only after the notices were issued to these officers that a

counter- affidavit was filed by the Deputy Chief Personnel

Officer, Southern Railway, Madras. After hearing parties,

this Court passed an order on 8th December, 1993 which is

extracted below:-

"Learned Additional Solicitor Gen. appearing

on behalf of respondents, i.e., appointing

authorities assure before us that all the

candidates selected in pursuance of notice No.

1/87 dated 15th of April, 1987 amounting to a

number of 775 vacancies will be appointed

according to the merit list already prepared

and that some of these candidates will be

absorbed under first phase by 10th March,

1994. Out of them 100 are going to the posts

of artisans and the remaining shall be ab-

sorbed in the posts, namely, Commercial

Clerks, Ticket Collectors, Train Clerks in the

Indian Railways on or before the end of March,

1995. Regarding these other artisans posts

amounting to 100 will be filled up by the

selected candidates only if the candidates are

willing to accept that post otherwise they

will be appointed only in the posts for which

the selection was made. The respondents have

given also an undertaking that till all the

selected candidates arc appointed no selection

will be made in the normal course and no other

new appointments will be made except the

appointments on the compassionate grounds.

These selections as assured should be made

without fail. All the candidates should be

given the age relaxation till their

appointments are complete. List this matter

on 11th of March, 1994".

When these applications came up for hearing, it was stated

on behalf of the appellants that 197 letters of appointment

had been issued. On 1st September, 1994 this Court directed

the Railways to explain as to why the Order passed by this

Court has not been complied with. The additional affidavit

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was filed on 15th September, 1994. It was stated that 105

unreserved, 70 Scheduled Casts and 4 Scheduled Tribes were

offered appointment in Non-Technical Popular Category in

Southern Railway and Integral Coach Factory. 70 unreserved,

26 Scheduled Casts and 4 Scheduled Tribes were offered to

express willingness for the post Skilled-Artisan in Southern

Railway on 8th March, 1994. Out of this, 46 gave their

consent. It is further stated that since there were large

number of candidates it became necessary to locate vacancies

in the Indian Railways and a reference was made to Railway

Board accordingly. It agreed to employ them in Central

Railway. Therefore, 40 unreserved, 12 scheduled castes and

2 scheduled tribes candidates who did not express their

willingness for acceptance of Skilled Artisan post as stated

earlier were offered to express their willingness to join

the Central Railway as Ticket Collectors. Over and above

these 54 candidates, 53 unreserved, 40 scheduled castes and

18 scheduled tribes candidates were also offered to express

their willingness to join the Central Railway. Out of these

17 scheduled castes and 4 scheduled tribes and 41 unreserved

candidates expressed their willingness. The affidavit

stated that after ascertaining the number of candidates who

actually joined the Central Railway the shortfall was

proposed to be made good by appointing the willing

candidates in order of merit. The affidavit stated that

even after all this and excluding those candidates who ex-

561

pressed their unwillingness to join Central Railway

approximately 319 candidates remained who were proposed to

be offered appointment before March 1995. It was,

therefore, prayed that extension of one year may be granted

to comply with the order.

4. From a chart filed by the learned Additional Solicitor

General on the last day of hearing, 27th March 1995, it

appears 147 candidates have been appointed in non-technical

categories in Southern Railways and Integral Coach Factory,

Madras, and 38 have been appointed as Skilled Artisans in

Southern Railways. Reason for non-compliance of the order,

as stated in the affidavit of the Chief Personnel Officer

filed in November 1993, is two fold; one, that number of

posts had been abolished due to introduction of computers

and closing down of various works units. Second reason

explained in the affidavit and which has been vehemently

pressed by the learned Additional Solicitor General is that

by the time the writ petitions were decided by the High

Court and the order that no fresh examinations could be held

became final, it became 1992 and by that time the

appellants/Railway Recruitment Board had received two panels

of 1989 and 1990 consisting of 998 candidates on 8th August,

1990 and 28th March, 1991 respectively. According to the

learned Additional Solicitor General, the availability of

the vacancies thus totally changed and by the time the

disputed panels were received by the Southern Railway on

23rd September, 1992 the number of vacancies got so reduced

that it became impossible to appoint the selected

candidates. The affidavit further states that for this

change in situation the Railways cannot be blamed. Conse-

quently, the learned Additional Solicitor General urged that

there was no way out except to appoint these persons as and

when vacancies arise. He also stated that so long as all

the candidates are not absorbed, no further selection shall

be held. He produced a Chart showing that out of 775

candidates, 106 expressed unwillingness to accept the offer

of appointment made and 66 should be deemed to be unwilling

to accept the offer of appointment in NTPC category in

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Southern Railway or the post of Skilled-Artisan in Southern

Railway followed by the post of NTPC category in Central

Railway in spite of repeated offers. The Chart further

indicates that offer is being made to 111 willing candidates

for the post of NTPC category in Central Railway and in

1995-96 it is estimated to offer appointment for the left

over numbering 304 in NTPC category in Western Railway,

numbering about 70 in Southern Railway, numbering about 50

in South Eastern Railway and the balance in different

Railways suitably.

5. From what has been narrated above, it is more than

apparent that the problem is the creation of the Railways

themselves. Consequently difficulties have arisen. But

they cannot be permitted to remain unsolved for such a long

time that the purpose of selection and its benefit stand

frustrated. Eight years have elapsed since advertisement

was issued. Even the result was declared in 1988. The

explanation in the affidavit for not implementing the order

passed by this Court is not satisfactory. The authorities

have not honoured their own commitments to appoint the can-

didates by March, 1995. It is not disputed that 775

candidates were selected in 1987. Decision to hold fresh

examination was taken in 1989. Immediately the candidates

approached the Tribunal and the High Court. The Railways

562

were, therefore, aware that disputes in respect of these

vacancies were pending adjudication before courts. They

could not, therefore, hold a fresh selection subsequently

for these posts either in 1989 or in 1990. The statement in

the affidavit of the Chief Personnel Officer that two panels

were received in 1989 and 1990 is indeed surprising. These

panels could have been only in respect of vacancies which

could have accrued after 1987. It was nowhere stated either

in the advertisement issued in 1989 or 1990 nor it was

stated before the High Court that vacancies for which se-

lection was held in 1987 were again put up for advertisement

in 1989 or 1990. It is thus not understandable how these

vacancies which existed in 1987 vanished in 1989, 1990 and

1992. The learned Single Judge had quashed the order for

holding second examination as far back as 1991. In absence

of any stay order obtained from any court, the Railways were

not entitled to take upon themselves a decision not to

appoint these persons or to act in such a manner as to

deprive the candidates selected in 1987 from being

appointed. Even the claim of abolition of posts or a reduc-

tion in number appears to have been made with little

responsibility. It was not stated before the High Court

when petition was decided in 1991. Nor it was stated in

Special leave Petition. The abolition of posts according to

affidavit of the Chief Personnel Officer took place between

1987 to 1993-94. Yet till the petitions were decided, no

such difficulty was raised. In any case, even if this be so

then how selections were held in 1989-90. We are further

not satisfied by the explanation of the appellants that the

candidates who were selected for Southern Railway having

been offered appointment in other Railways and they having

expressed unwillingness to join the post, they have no claim

to be appointed. The entire exercise of the appellants was

wholly contrary to fairplay. It may not be out of place to

mention that it was brought to our notice that some of the

selected candidates due to delay and the attitude of the

Railways were so frustrated that they committed suicide.

6. We accordingly direct the appellants-the Railways to

appoint all the remaining candidates within a period of

twelve weeks from today. The letters of appointment shall

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be issued for appointment in Southern Zone. Letters shall

be issued even to those candidates who did not agree to go

outside as we are informed that they are now willing to join

even other zones. But so far as female candidates are

concerned they shall be offered appointment only in Southern

Zone. Those who have joined outside the zone shall have no

claim for Southern Zone by virtue of this order. In case

there are no vacancies, the Railways may take appropriate

steps to get the vacancies created within the same time. It

is made clear that no further time shall be granted and in

case the appointments are not made of all the candidates

within twelve weeks, it shall be taken as violation of the

order passed by this Court and the persons responsible shall

be proceeded against. We are not very happy to pass this

order. But the Railways have not left any option in view of

the order passed in September, 1992 and then the order

passed in December, 1993 on the assurances given by the

learned Additional Solicitor General that all the selected

candidates shall be accommodated in a phased manner by

March, 1995. These appointments shall not be subject to

question in any further proceedings.

7. The I.As. are disposed of accordingly.

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