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CASE NO.: Special Leave Petition (civil) 14656  of  2000

PETITIONER: ALL INDIA SC & ST EMPLOYEES ASSN.& ANR.

       Vs.

RESPONDENT: A. ARTHUR JEEN & ORS.

DATE OF JUDGMENT:       12/04/2001

BENCH: S. Rajendra Babu & Shivaraj V. Patil

JUDGMENT:

WITH SPECIAL LEAVE PETITION (C) NO. 2377 OF 2001

J U D G M E N T

Shivaraj V. Patil, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   In these Special Leave Petitions, the judgment and order dated  10.4.2000 passed by the Division Bench of Madras High Court  in  Writ  Petition Nos.16766-16772  of  1999,  17167, 17878,  18834  &  20598 of 1999 and 4064 of 2000  are  under challenge.   S.L.P.   No.   14656 of 2000 is  filed  by  the applicants   in   O.A.   No.    93/99  before  the   Central Administrative   Tribunal,  Chennai  Bench   who  were   the respondents  in  the  writ petition before the  High  Court. S.L.P.   No.   2377 of 2001 is filed by the  petitioners  in W.P.   No.   16766 of 2000 in the writ petition  before  the High Court.

   In  short,  the  facts and events leading to  filing  of these Special Leave Petitions are :-

   The  Railway Board issued Employment Notification No.  1 of  1995 dated 7.9.1995 inviting applications for 330  posts of  Khalasis (Group-D) reserving 19% of posts for  Scheduled Castes,  1% for Scheduled Tribes and 27% for OBCs besides 3% for  Physically  Handicapped and 20% for Ex-Servicemen.   In response  to  the  Notification,  58,675  applications  were received,  out of them 32,563 candidates were found eligible and  called for interview.  The Railway Board by its  letter dated 17.5.1996 communicated its decision to prepare a panel for  917  vacancies on the ground of increase  of  vacancies from 330 to 917.  The selection of candidates was to be made on  viva  voce test only.  The candidates  were  interviewed from  July  1996 to February 1997 by  different  committees. The  composition  of the committees was challenged  in  O.A. No.   28/1997  before the Central  Administrative  Tribunal, Chennai  Bench.   The Tribunal by its order dated  17.9.1997 struck down the Railway Boards instructions on the basis of which committees were constituted for interview.  Thereafter the Railway board issued fresh instructions on 29.4.1998 for

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constituting  committees  as  per  para 179  of  the  Indian Railway  Establishment Manual (I.R.E.M.).  The second  round of  interviews  were  conducted afresh  from  26.06.1998  to 28.09.1998  for  75  days by different committees.   Out  of 32,563  candidates, only 25,271 candidates appeared for  the interview.   Another  O.A.  No.  543/1998 was filed  seeking direction  that the course completed Act Apprentices  should be given preference but the same was dismissed on 17.9.1998. Ultimately  merit  list  was published on 22.12.1998  and  a panel  of  917  selected  candidates was  published  in  the newspapers  on  30.1.1999.   The  candidates  selected  were informed about their selection.

   O.A.   No.93 of 1999, O.A.  No.  103 of 1999, O.A.   No. 153  of 1999, O.A.  No.  202 of 1999, O.A.  No.  260 of 1999 and  O.A.   No.  294 of 1999 were filed before the  Tribunal challenging the selection of the candidates.  O.A.  No.  367 of  1999 was filed by a selected candidate seeking direction to  complete  the  process and to  issue  appointment.   The respondents  resisted these O.As.  on the grounds that O.As. filed  in  the  nature of PIL were  not  maintainable;   the applicants could not be said to be aggrieved persons without showing  whether  they were members of the  association  and whether  they applied for the said posts;  all the  material allegations  contrary to their stand made in the O.As.  were denied;   that  the Railway Administration did not give  any particular  direction  or  instruction  in  the  matter   of selection  and that no mala fide practice was followed.   It was  also  pleaded  that there was no violation  of  settled procedure  and  guidelines;  the selection was made  on  the basis  of  performance of the candidates in the  viva  voce; further  there  was  no arbitrariness in  the  selection  of candidates  and  that the procedure followed in the  earlier selection  made  in  1989-90  was followed  in  the  present selection as well.

   The  Tribunal  quashed the panel of selected  candidates giving  the  reasons  that number  of  vacancies  originally notified  were 330 but the panel of selected candidates  had been drawn for 917 without earlier notifying the increase in vacancies;   only  18 Physically Handicapped candidates  had been  selected  instead of 27 candidates on the basis of  3% reservation  for  the entire 917 posts;  instead of  finding the  selection zone, applications of SC/STs were received on inter-State  basis  and  that  the marking  pattern  in  the selection  in the absence of guidelines to 80% marks had led to  wide  variations.  The Tribunal, however,  noticed  that allegations of mala fide and bias had not been established.

   Aggrieved and affected by the order of the Tribunal, the successful  candidates,  who  were  provisionally  selected, filed  the writ petitions in the High Court challenging  the order passed by the Tribunal.  The High Court, on a detailed examination   of  respective  contentions   raised  by   the contesting  parties,  held that the rule of reservation  was properly followed except to the extent of shortfall by 1% in regard   to  the  Physically   Handicapped  category;    the procedure   prescribed   in  para   179  of  I.R.E.M.    was substantially  complied with;  the awarding of marks in  two categories  to  the  extent  of  80%  was  in  order;   that association  could not agitate the case of all persons as it depended  on the facts of each individual member and that no resolution  of authorization to file the O.A.  was produced. The High Court also observed that the Tribunal could not act as  a court of appeal in appreciating the contentions  urged

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before  it.   Having  due regard to the  long-drawn  process involved  in  the  selection  of  candidates,  the   revised assessment  of vacancies coming to only 382 in Group ‘D for the period upto March 2002 and considering totality of facts and  circumstances  of  the case as indicated in  the  order under  challenge, the High Court directed the authorities to proceed  with the selection made and to appoint the selected candidates  in  the available vacancies.  It was made  clear that  the  authority concerned should select and appoint  3% Physically  Handicapped  candidates  out of  the  candidates already selected instead of 2%.

   Before  us, Mr.  K.R.  Chowdhary, learned Senior Counsel appearing  for  petitioners in S.L.P.  No.  14656  of  2000, urged that the High Court failed to appreciate that the writ petitions  had  become infructuous as stated in the  counter affidavit  filed by the respondents in view of the fact that the  Indian  Coach  Factory   (I.C.F.)  Administration   had accepted  the  order  of  the  Tribunal  and  cancelled  the employment notification dated 7.9.1995 itself, on 3.10.1999; after   3.10.1999  pursuant  to   the  cancellation  of  the employment  notification,  no  right subsisted to  the  writ petitioners before the High Court and as such the High Court committed  an  error in proceeding to decide the case;   the High Court also committed an error in holding that there was substantial compliance of para 179 IREM;  the High Court was not right in holding that non-shortlisting and not confining preference to local candidates did not affect the selection.

   On  the other hand, Mr.  A.L.  Somayaji, learned  Senior Counsel   for  petitioners  in   SLP  No.   2377/2001,  made submissions supporting the order of the High Court except to the extent of the observation made in para 34 taking note of revised  assessment of vacancies coming to only 382 in Group ‘D  for the period upto 2002, and confining appointment  to the  available  vacancies  only.   Although  originally  the notification was issued to fill up 330 vacancies, later they were  increased  to  917 after getting the approval  of  the Railway  Board for additional 587 vacancies;  since as  many as  58,675  applications were received, out of  them  32,563 candidates  were called for interview and 25,271  candidates actually  attended interview including large number of local candidates,   no  prejudice  was   caused  by  not  inviting applications  for additional vacancies;  as observed by  the High court, selected candidates were made to run from pillar to  post for one reason or the other and they were asked  to appear  twice  for  the  interview   in  pursuance  of   the notification  No.  1/95 and that after a long drawn  process the panel of selected candidates was prepared;  the Tribunal committed  a serious error in quashing the panel of selected candidates in its entirety when the selected candidates were not  impleaded in the O.As.  On this short ground alone, the High  Court  ought to have granted relief to the  successful candidates  fully  covering  all the  917  candidates.   The learned  Senior Counsel also submitted that no mala fides or arbitrariness  was  found in the procedure of  selection  of candidates.   He  urged that there was no  justification  to reduce  the  vacancies to be filed from 917 to  382,  having prepared  and published a panel of 917 selected  candidates. He  added  that after the High Court passed the order,  some candidates  have been appointed;  it may not be  appropriate to upset the selection of candidates at this stage.

   Mr.   Ranjit Kumar, learned Senior Counsel appearing  on behalf  of the Union of India, made submissions drawing  our

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attention  to counter-affidavit filed by the Union of  India and  urged that the selected candidates did not acquire  any indefeasible  right  to  be appointed against  the  existing vacancies  and  the authorities are under no legal  duty  to fill up all or any of the vacancies and particularly so when there  are  no vacancies to accommodate all the  candidates; the  authorities  accepting  the decision  of  the  Tribunal cancelled the employment notification and subsequently after the  High  Court passed the order, further steps were  taken and  about  100 out of the selected candidates  are  already appointed.

   We have given our consideration to the rival contentions urged on behalf of the contesting parties.  It is clear from the counter affidavits filed on behalf of Union of India and I.C.F.   Administration  that after the Tribunal passed  the order  in  O.As.  on 23.8.1999 and on implementation of  the decision  of the Ministry of Railways to enhance the  hourly rate of incentive, concurrently by reducing the allowed time and  in  terms  of their letter No.   PC-V/98/1/7/4/1  dated 21.6.1999  with  effect  from.1.9.1999,  there  was  drastic reduction  of vacancies leading to surrendering of 866 posts of    technicians    (artisans)    and    327    posts    of Khalasis(helpers).   In  the changed situation,  the  I.C.F. Administration  decided  to  implement   the  order  of  the Tribunal   quashing   the  selection    and   issued   press notification   on   3.10.1999   canceling   the   employment notification  dated 7.9.1995 and canceling the panel of  the selected  candidates.  After issuing employment notification on  7.9.1995  to  cover further two years  recruitment  for subsequent  years,  with  the approval of  the  Ministry  of Railways  in  1996,  it  was decided  to  empanel  587  more candidates in the same recruitment process.  The recruitment process  was getting prolonged due to litigation.  A  number of  appointments on compassionate grounds had to be made  in the  intervening period;  owing to the raising of the age of superannuation  from 58 to 60 years by the Government, there were  no  retirements from May, 1998 to April,  2000;   more than  these,  implementation of Railway Boards decision  to enhance  the hourly rate of incentive and reduce the allowed time by 12% resulted in reduction of vacancies both in Group ‘C and Group ‘D.  Vacancies in Group ‘D depend on arising of  vacancies  in  Group  ‘C   technicians  cadre  and  the progression of Khalasis (helpers) by Khalasis against 75% of technician   vacancies;   because  of   these  reasons   the anticipated  vacancies did not materialize and the  exercise of  reassessment  of  vacancies   made  in  September,  1999 indicated  that  only 382 vacancies would be available  upto March,  2002.  Responding to the allegation that these facts were  not  brought to the notice of the Tribunal during  the arguments in O.A.  No.  93/99, it was pointed out that after the  closing of arguments before the Tribunal and on receipt of  Boards  instructions  dated  21.6.1999  effective  from 1.9.1999,  the vacancies had to be re-assessed having regard to  the reduction of manpower requirements and the vacancies so reduced came to 382 for the period upto March, 2002;  the variance  between  the  vacancies notified at  330  and  the revised  vacancies  at 382 was not much.  Neither  any  mala fides  were attributed nor any arbitrariness was established on  the  part of the Railway Administration in  re-assessing the vacancy position.

   Merely because the names of the candidates were included in  the  panel indicating their provisional selection,  they did  not acquire any indefeasible right for appointment even

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against  the  existing vacancies and the State is  under  no legal  duty  to fill up all or any of the vacancies as  laid down  by  the  Constitution  Bench   of  this  Court,  after referring  to earlier cases in Shankarsan Dash Vs.  Union of India  [1991 (3) SCC 47].  Para 7 of the said judgment reads thus :-

   It  is not correct to say that if a number of vacancies are   notified  for  appointment   and  adequate  number  of candidates  are found fit, the successful candidates acquire an  indefeasible  right  to  be appointed  which  cannot  be legitimately  denied.   Ordinarily the  notification  merely amounts  to  an invitation to qualified candidates to  apply for  recruitment and on their selection they do not  acquire any  right  to  the post.  Unless the  relevant  recruitment rules  so indicate, the State is under no legal duty to fill up  all or any of the vacancies.  However, it does not  mean that  the  State has the licence of acting in  an  arbitrary manner.  The decision not to fill up the vacancies has to be taken  bona  fide  for  appropriate  reasons.   And  if  the vacancies  or any of them are filled up, the State is  bound to  respect  the  comparative merit of  the  candidates,  as reflected at the recruitment test, and no discrimination can be  permitted.  This correct position has been  consistently followed  by  this Court, and we do not find any  discordant note  in  the  decisions in State of  Haryana  vs.   Subhash Chander  Marwaha  [(1974)  3 SCC 220], Neelima  Shangla  vs. State  of  Haryana [(1986) 4 SCC 268] or Jatendra Kumar  vs. State of Punjab [(1985) 1 SCC 122].

   Hence  the contentions raised in SLP No.  2377/2001  are untenable.

   Similarly the contention that the vacancies to be filled up  could  not  be  increased to  917  from  330  originally notified  without  there  being subsequent  notification  is untenable  in  view  of the changed situation  as  explained above.  No fault can be found with the direction of the High Court  to issue appointments only to available vacancies  on merit  out  of  the  candidates included  in  the  panel  of selected  candidates following rules of reservation and that too  reserving 3% seats to Physically Handicapped instead of 2%.   382  vacancies  would  be available  upto  March  2002 possibly  as of now all the 382 candidates may not be  given appointment;   the  appointments  may be given upto  330  or less.   Further,  the  purpose of issuing  notification  and giving  due  publicity is to provide opportunity to as  many eligible   candidates   as     possible.    The   employment notification  No.   1/1995  was issued on 7.9.1995  and  the decision  was taken to increase the posts on 17.5.1996,  the time  gap  was  hardly  8 months;  as many  as  58,675  made applications  and 32,563 were called for interview.  It  was quite  probable that all candidates eligible and  interested including  large number of local candidates, applied for the posts.   The time gap of about 8 months between the original notification  and  the decision to increase posts not  being much, it cannot be said that many of the eligible candidates were  deprived  of  applying for the posts  looking  to  the requirements  of  eligibility.  As already stated above,  in the changed situation only 382 posts are to be filed up upto March, 2002.  The selected candidates are to be appointed on the basis of merit following rules of reservation applicable to  different  categories.   The process  of  selection  was long-drawn  and  the  candidates  were made  to  appear  for interview  twice.   The candidates and their  families  have

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been  waiting  for  long time from 1995 with great  hope  of getting  jobs.  Enormous money and man hours have been spent in  completing  the  process of selection in  preparing  the panel  of  selected candidates.  In this view there  was  no justification  for the Tribunal to quash the entire panel of selected candidates.

   Although  the  candidates included in the panel  showing their  provisional  selection  do not get  vested  right  to appointment,  they  will be surely interested in  protecting and  defending the select list.  It is the admitted position that  before  the Tribunal the successful  candidates  whose names  were included in the panel of selection were not made parties.  The argument of the learned counsel that since the names  and particulars of the successful candidates included in the panel were not given, they could not be made parties, has no force.  The applicants before the Tribunal could have made efforts to get the particulars;  at least they ought to have impleaded some of the successful candidates may be in a representative  capacity;  if the large number of candidates were  there  and if there was any difficulty in  service  of notices  on them, they could have taken appropriate steps to serve  them by any one of the modes permissible in law  with the  leave of the Tribunal.  This Court in Prabodh Verma and Ors.  Vs.  State of Uttar Pradesh & Ors.  [1984 (4) SCC 251] has  held  that  in writ petitions filed against  the  State questioning the validity of recruitment of a large number of persons  in service could not be proceeded with to hear  and take  decision  adverse  to those affected  persons  without getting  them or their representatives impleaded as parties. In para 50 of the said judgment, summarizing the conclusions this Court in regard to impleading of respondents has stated that :-

   A  High  Court ought not to hear and dispose of a  writ petition  under Article 226 of the Constitution without  the persons  who would be vitally affected by its judgment being before  it  as  respondents or at least some of  them  being before  it  as respondents in a representative  capacity  if their  number  is  too  large to join  them  as  respondents individually,  and,  if  the petitioners refuse to  so  join them,  the  High  court ought to dismiss  the  petition  for non-joinder of necessary parties.

   This court in para 4 of the judgment in A.M.S.  Sushanth &  Ors.   Vs.   M.Sujatha & Ors.  (2000 (10)  SCC  197)  has stated thus:-

   We  find that none of the persons who were selected and whose appointments were set aside by the High Court had been impleaded  as a party-respondent.  It appears that a  public notice  was  given  in a representative capacity  only  with regard  to  the  appointment  to   the  post  of   Assistant Sericulture  Officer.   The  direction of  the  High  Court, however,  is  not confined to that post alone and it is  the appointments  to  the other posts also which have  been  set aside.   This could not be done.  The principles of  natural justice  demanded  that  any  person who  was  going  to  be adversely  affected  by  the  order   should  have  had   an opportunity  of  being  heard.  That apart, one  would  have expected  the  High  Court  to have  considered  the  report submitted  under  Section 65 on its merits and then  decided whether the said report should be accepted or not.

   Be that as it may, on the facts and in the circumstances

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of the present cases, we do not find any merit in any one of the contentions urged on behalf of the petitioners in S.L.P. No.  14656 of 2000.

   The High Court found that rules of reservation in regard to  all other categories were followed and the Tribunal also found   so;    as  regards   Physically   Handicapped,   the reservation  was  to be increased to 3% instead of 2%  among the candidates included in the panel on the basis of merits. Hence  the grievance as to increase of posts from 330 to 917 without  issuing notification was of no consequence.  It  is also  noticed  by  the High Court that the large  number  of applications were received and interviewed including a large number  of local candidates;  the employment notification of 95  had  been  published  in  the  employment  exchanges  in Chennai,  Kanchipuram  and Tiruvallur of the local  unit  of I.C.F.,  Chennai.  Further it is also stated in the  counter affidavit  that  the upper age limit itself has been  raised upto  to  33 years besides relaxation in the age  limit  for reserved  community  candidates and P.H./Ex.Servicemen  etc. In  our view, no prejudice was caused to the petitioners  in S.L.P.  No.  14656/2000.

   In  regard  to the other contention that 80% marks  were awarded  to the candidates without any guidelines, the  High Court  has taken the view that there was no arbitrariness in awarding  80%  marks  under two heads.  We will do  well  to remember  that The candidates were interviewed for Group ‘D posts  (Khalasis);  the selection was to be made only on the basis of viva voce test.  The marks were to be awarded under the four heads as stated below.

i) Personality / address                - 40 marks ii) Ability to do the job             - 40 marks. iii) Technical / academic qualification-10 marks. iv) Sports etc.  - 10 marks.

   Under  the  head   ability to do the job, marks  to  be awarded was on the basis of the candidates ability to lift a weight  of 35 kg.  without any physical strain.  Marks  were to   be   awarded  looking  to   the   technical   /academic qualifications;   so  also for sports and marks were  to  be awarded  for personality and address.  Having regard to  the nature of different heads for which marks were to be awarded that  too  for  filling up Group D posts  of  Khalasis,  it cannot  be  said  that  there  could  be  wide  variance  or arbitrariness  in awarding narks.  The procedure followed in viva  voce  test is again indicated in the  reply  statement filed  on  behalf of the Railway Administration  before  the Tribunal  itself.   It  is  stated that  the  interview  was conducted  by 3 committees with 4 members each  representing SC/ST/Minority/OBC  for  75  days.  To maintain  secrecy,  a system  which was evolved in the previous selection with the approval  of  the then Chief Personnel Officer (CPO) in  the year  1989-90  for nomination of the Committee  Members  was adopted this time also, as detailed below:-

   On  the  previous  day afternoon, the  three  selection committees with four officers will be formed by Deputy Chief Personnel    Officer/General   [Dy.      CPO/G]   with   due representation  of  SC/ST/OBC/Minority.  These  12  officers will  be  intimated over phone by Dy.  CPO/G or through  his Confidential  Assistant  without mentioning which  committee they   belong  to.   The   sealed  cover  containing   three committees   will   be  handed   over  to  Senor   Personnel

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Officer/Recruitment and training (SPO/R&T) and the same will be  opened  by  SPO/R&T in the presence of  the  all  twelve officers  on  the day of viva voce after  getting  signature from  one or two offices on the sealed cover to  acknowledge that  the  sealed cover is in tact.  On the first  two  days [viz.   22nd  and  23rd  June 1998] CPO  has  nominated  the committees.   Thereafter the Dy.  CPO/G.  had nominated  the committees.   In  pursuance there of, the committee  members will  take  position  in their  respective  committee  rooms allocated  and conduct the interviews.  After the closure of the  interview,  on each day, the signed mark statements  of each  committee  will be kept in a cover duly signed by  the officers in the outer cover and sealed.  These sealed covers will be handed over to Dy.  CPO/G by the Personal Officer of the  respective committee, for safe custody.  In the absence of  Dy.  CPO/G, SPO/R&T will receive and hand over the  same to  Dy.   CPO/G, when he resumes duty.  After the  interview were  over,  a  decision  was taken to hand  over  the  mark statement  in  220  sealed  covers  to  Railway  Recruitment board/Chennai[RRB]  for  data entry and form a  draft  panel following  all the reservation rules for SC/ST/OBC etc.  The 220  sealed covers were taken to RRB by D.DPO/G and  SPO/R&T in  2  sealed  boxes  and handed  over  on  12.10.1998.   On 22.12.1998,  the RRB returned the mark lists along with  the merit  lists an a floppy containing date for all the  25,271 candidates.   The data entries were verified and a panel  of 917  selected  candidates formed with CPOs approval,  after following  the  reservation rules  for  SC/ST/OBC/Physically Handicapped  and Ex- servicemen.  Thereafter, the panel  was published  in the Newspapers viz, Indian Express and Daily Thanthi  on  30.01.1999.   Simultaneously,  the  successful candidates  were informed that they have been  provisionally selected  for Gr.  D posts and further action will follow in due  course.   At this stage, the applicants have filed  the present OA and this Honble Tribunal on 08.02.1999 passed an order directing the respondents to maintain ‘statusquo.

   S.L.P.   No.  14656 of 2000 is filed by the  petitioners in  O.A.  No.  93 of 1999 before the Tribunal.  In the  said O.A.,  petitioner no.  1 was an association named All  India Scheduled  Caste  and Scheduled Tribe Employees  Association and petitioner no.  2 was an individual.  The High Court has held  that such a writ petition filed by an association  was not  maintainable.  In our view it is unnecessary to examine this  question  in  the light of conclusion reached  on  the merits of the respective contentions.

   The  contention  urged on behalf of the  petitioners  in S.L.P.   No.   14656  of 2000 that the  writ  petitions  had become  infructuous  in  view  of   the  fact  that   I.F.C. Administration   itself   had   cancelled   the   employment notification  No.   1 of 1995 dated 7.9.1995  accepting  the judgment  of the Tribunal cannot be accepted.  The  selected candidates  who  were seriously affected had every right  to challenge  the  decision of the Tribunal on all the  grounds available  to  them.   The  I.C.F.   administration  by  its decision to cancel the employment notification and the panel of  selected  candidates  unilaterally could not  defeat  or destroy  the  interest of the successful candidates.  It  is also  submitted  before us that the  I.C.F.   Administration pursuant  to  the judgment of the High court passed  in  the writ petitions has given appointment to about 100 candidates from  out  of  the panel of the selected  candidates.   This being  the  position,  we  are of the  view  that  the  writ

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petitions  had  not become infructuous.  The High Court  has also  noticed that those candidates who had participated  in the  interview could not challenge the selection before  the Tribunal.   Thus having regard to all aspects including  the changed  situation as to the reduction of vacancies from 917 to  382 on the basis of the revised assessment of  vacancies as  already  stated above, the impugned order passed by  the High Court is just and appropriate.  In the light of what is stated  above,  we  do not find any justification  or  valid reason  to  interfere with the impugned order passed by  the High  Court.   Therefore, both the S.L.Ps.  being devoid  of any merit are liable to be dismissed.  Accordingly, they are dismissed but with no order as to costs in the circumstances of these cases.