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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. 565