Dr. Veena Chhotray, Member (A):— The applicants, 5 in number, are Confidential Assistants under the Northern Railways. Through this OA they have challenged the selection process for the posts of Private Secretary-II Grade Rs. 6500-10500 initiated by the Respondents vide their Office Orders dated 22.2.2008 and 13.5.2008 Besides quashing the impugned orders, a direction for cancellation of the process of selection held so far and for holding a fresh selection after deciding the issue of eligibility zone have also been prayed.
2. Briefly, the post of Confidential Assistant is the feeder cadre for promotion to the post of PS-II, which is a selection post. Earlier the Respondents had in the year 2006 initiated the selection process for promotion to this post. The number of vacancies notified at that time was 20 which included 18 General, 0 S.C and 2 S. Ts. The names of the applicants had been included in the list of the eligible candidates circulated vide Office Order dated 7.9.2006 A written test was held on 14.10.2006 and the results were declared on 13.11.2006 (Annexure A/4). Out of 54, 33 candidates were declared successful in the written test and were found eligible for viva voce test. Among the 5 applicants only one Shri Krishan Kumar, (applicant No. 2) was included in the list. The grievance of the applicants is that without pursuing this selection process to its logical end, the Respondents first shelved it for more than a year and then reinitiated the whole process afresh. This action on the part of the Respondents has been challenged.
2.1 The revised selection process was initiated by the Respondents vide their Notice dated 22.2.2008 (Annexure A/1). It mentioned that as per the instructions received from the Railway Board vide its letter dated 27.2.2007, the 20 vacancies already assessed had been redistributed (14 UR + 3 SC + 3 ST). Consequently names of 5 candidates from the general category had been deleted from the list of eligible candidates and 2 SC candidates had been included in the zone of consideration. The aforesaid deletion of 5 names was done after issue of a speaking show cause notice to the affected persons vide OM dated 6.2.2008 (Annexure-R-3 with the counter). For the 2 additionally included SC candidates, a written test was fixed to be held on 17.3.2008 Subsequently, vide their Office Order dated 13.5.2008 (Annexure A-1-a), list of 35 candidates was notified as having been found eligible to be called for viva voce test. The names of the applicants do not find place in this list. The viva voce test has been completed on 24.6.2008 However, further proceedings have been kept in abeyance as per the order dated 10.6.2008 by the Tribunal.
3. On behalf of the Applicants the reinitiated selection process has been challenged, inter alia, on grounds of violating the Railway Board instructions, which precluded any alteration in the number of vacancies once the selection process had been set in motion. The learned counsel would also refer to the contention in the counter reply which mentions about adding 15 posts reported by Construction/COFMOW to the existing strength of 35 and object to the allegedly additional inclusion of vacancies of an autonomous statutory organization.
4. These contentions have been rebutted by the respondents with the submissions that there has been no additional inclusion of any vacancies and in fact, the 15 vacant posts of Construction/COFMOW formed a part of the originally calculated vacancies themselves as per the extant instructions. As per the respondents, they have only revised the distribution of the same number of vacancies among General, SC and ST considering the representation from the Employees Association about extension of the reservation quota to the posts reported by other organizations. It is also averred that there has been no violation of any Government instructions and this point has been got confirmed from the Railway Board.
4.2 The learned counsel for the respondents, Shri V.S.R Krishna, would vehemently contest the OA by terming it as frivolous and denying any locus standi to four among the total five applicants. He would also submit that since even in the initial written test only Krishan Kumar, applicant No. 2, had qualified, the other four have no legally enforceable right at all. On this ground, the OA is also said to suffer the infirmity of misjoinder of parties. The learned counsel would further submit that even in the case of Krishan Kumar, a show cause notice had been issued before passing the speaking order dated 6.2.2008 (Annexure R/3), which has not been challenged in the present OA.
5. We have heard both the learned counsels and perused the material on record.
6. On a perusal of the records produced before us, we find the preliminary objections raised by the learned counsel for the respondents are borne out by facts. While the names of all the five applicants were mentioned (at Serial Nos. 9, 51, 41, 23 and 3 respectively) in the list of 54 persons found eligible to appear in the written test to be held on 30.9.2006 (A-2), in the subsequent OM dated 13.11.2006 indicating the results of the aforesaid written test held on 14.10.2006, only the name of Krishan Kumar (Applicant No. 2) was included at Serial No. 32. These four applicants having failed in the test are now precluded from challenging the process of subsequent selection. As was held by the Apex Court in Sadananda Halo v. Momtaz Ali Sheikh, (2008) 2 SCC (L&S) 9, it is a settled position that unsuccessful candidates cannot turn back and assail the selection process. We also find that the applicant No. 2 having qualified the written test is not similarly situated with the rest of the applicants and therefore, cannot be clubbed together. The MA No. 929/2008 for joining the parties under Rule 4(5) of CAT (Procedure) Rules. 1987 is not found entertainable in this situation.
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