Arif Khan v. Union Of India

M. Nagarajan, J.M.:— The prayer of the applicant in Original Application is an under:-

“That, the notification dated 09.12.2011, to fill 27 posts to Tech. III, departmental quota must be kept in abeyance till such time the applicant's grievances sought out. Therefore it is humbly requested to grant stay on the notification (Annexure A-1).”

2. On perusal of the averments, grounds urged and the prayer in the Original Application we find that the applicant is challenging the notification dated 09.12.2011 (Annexure A-1) by which applications were invited by the respondents to fill up 27 posts of Technicians Grade III in the pay scale of Rs. 5200-20200 + Grade Pay of Rs. 1900/- under 20% departmental quota. One of the eligibility criteria prescribed under notification dated 09.12.2011 at Annexure A-1 is that a candidate who is seeking selection and appointment to the post of Technician Gr. III must have completed three years of continuous service after screening as on 09.12.2011. The claim of the applicant in this Original Application is that as on 09.12.2011 he has completed three years of continuous service of TRS department.

3. The facts stated by the applicant in support of his grievance and claim are that he was working as Helper in Divisional Railway Manager, West Central Railway, Bhopal since 05.05.2007 and that he was given temporary status w.e.f. 06.09.2007 after completion of 120 days of substitute service vide order dated 24.09.2007 (Annexure A-3). He claims that he was granted temporary status with effect from 06.09.2007 vide the letter dated 24.09.2007 (Annexure A-3).

4. The applicant further submits that the respondents issued a notification dated 22.11.2010 vide Annexure A-8 and invited applications to fill up 12 posts of Technicians Gr. III under 20% departmental quota. He responded to the same. Vide letter dated 13.03.2011 (Annexure A-11) he was informed that his name is on the scrutiny list. The applicant appeared in the written examination and he was qualified. But, the result was cancelled vide letter dated 09.09.2011 (Annexure A-8). He submits that he fulfills all the eligibility criteria prescribed in notification dated 22.11.2010 and hence he was permitted to participate in the written examination and his results was also declared. Therefore the respondents can not subsequently turn round and contend that he does not have the eligibility criteria prescribed in the notification dated 09.12.2011 (Annexure A-1). Being aggrieved by the fact that as per the order/letter dated 24.10.2011 vide Annexure A-6 he does not have the eligibility criteria prescribed in the notification dated 09.12.2011 the applicant has filed the instant Original Application with the prayer as extracted at Paragraph 1 above.

5. Pursuant to the notice of the Original Application, the respondents entered appearance and filed their detailed reply. The applicant has also filed his rejoinder reiterating the averments and the grounds urged in the Original Application. The respondents have also filed their additional reply to the rejoinder of the applicant.

6. Heard Shri D.P. Pandian learned counsel for the applicant and Shri A.K. Jaiswal, learned counsel for the respondents. Pursued the pleadings and the documents annexed thereto.

7. Shri D.P. Pandian learned counsel for the applicant argued that Divisional Railway Manager (Personnel), West Central Railway, Bhopal vide his office order No. 735/2007 dated 24.09.2007 already granted temporary status to the applicant with effect from 06.09.2007 as per the order at Annexure A-3. Taking into account of the order dated 24.09.2007 at Annexure A-3 the applicant was permitted to participate in all the process, pursuant to the notification dated 22.11.2010 at Annexure A-8. In fact he was successful in the written examination, but unfortunately the result was cancelled, Shri D.P. Pandian submitted.

8. Shri D.P. Pandian, learned counsel for the applicant submitted that the respondents having permitted the applicant to participate in the examination pursuant to the notification dated 22.11.2010 and thereby treated that he is having three years of continuous service, subsequently ought not to have issued letter dated 24.10.2011 (Annexure A-6) by which he was given temporary status with effect from 22.11.2010. Referring to the fact that as per the order at Annexure A-3 the applicant was granted temporary status on 06.09.2007, Shri D.P. Pandian argued that the applicant is entitled to the relief as sought by him. He prayed that the notification dated 09.12.2011 vide Annexure A-1 shall be kept in abeyance till such time his grievance relating to the date of grant of temporary status is redressed.

9. Per contra, the learned counsel for the respondents argued that the grievance of the applicant relating to the date with effect from which he is entitled for grant of temporary status shall not be linked with the impugned notification dated 09.12.2011 by which applications were invited to fill up 27 posts of Technician Grade III under 20% departmental quota. He pointed out that, if it all, the applicant has any grievance as to the date with effect from which he is entitled for grant of temporary status, there should have been a specific prayer to that effect. It is unfortunate that no such prayer is there in the Original Application. Learned counsel for the respondents pointed out and submitted that the entire process pursuant to impugned notification dated 09.12.2011 has been completed and as of now there remains nothing to be kept in abeyance as prayed by him and hence the prayer of the applicant in this Original Application to keep the impugned notification dated 09.12.2011 does not survive for consideration, the learned counsel for the applicant argued.

10. Upon hearing the learned counsels for both the parties and on perusal of the pleadings and documents annexed thereto we find that the main grievance of the applicant is as to his ineligibility to respond to the impugned notification dated 09.12.2011. By the order at Annexure A-6 dated 24.10.2011 the applicant was granted temporary status only with effect from 24.10.2011 and if that date were to be reckoned, it is clear that as on the date of impugned notification dated 09.12.2011 he did not possess the three years of continuous service as prescribed therein. But, the applicant claims that in view of the order dated 24.09.2007 at Annexure A-3 by which he was granted temporary status on completion of 120 days of substitute service he is entitled to participate, since he had the eligibility criteria prescribed in notification dated 09.12.2011. If that were to be accepted then the applicant should have prayed for an interim direction to the respondents to permit him to participate in the selection process pursuant to the impugned notification dated 09.12.2011. But no such interim direction was sought by the applicant. The interim prayer sought at Para 9 of the Original Application is under:-

“9. It is most humbly prayed that the respondents may kindly be restrained from filling the departmental post of Tech-III under 20% of quota till the applicant's request is considered. Therefore it prayed that stay on the notification may kindly be granted.”

11. The above interim relief prayed was not granted and as a result this selection process initiated by issuing the impugned notification dated 09.12.2011 at Annexure A-1 has already come to an end. There is no challenge to any of the outcome of the impugned notification dated 09.12.2011. Since the recruitment process initiated by issuing the impugned notification dated 09.12.2011 Annexure A-1 has come to an end and particularly in view of the fact that there is no challenge whatsoever as to the outcome of the recruitment process initiated by issuing impugned notification dated 09.12.2011, we find that there is nothing to the adjudicated.

12. The prayer of the applicant in this Original Application is “to keep the impugned notification dated 09.12.2011 in abeyance till such time his grievance relating to the date from which he is entitled for grant of temporary status is redressed.” Therefore, we are in full agreement with the submissions of the learned counsel for the respondents. We reiterate and hold that the process initiated by issuing the impugned notification dated 09.12.2011 Annexure A-1, since come to an end and since there is no challenge whatsoever to the outcome of the same, we find that the claim of the applicant in this Original Application does not survive for consideration and hence the Original Application deserves to be dismissed as having become infructuous.

13. Accordingly, Original Application is dismissed. We, however make it clear that the applicant is at liberty to agitate his grievance with regard to the date from which he is entitled for grant of temporary status. Under the circumstances, there shall be no order as to costs.