G.P. Singhal, AM:— These Original Applications are being disposed of by this common order as in all these Original Applications the applicants are seeking direction to consider their candidature for appointment on Group-D posts in respect of Employment Notification No. 2/2010 dated 15.12.2010 (Annexure A-1) issued by the South-East Central Railway (for brevity SECR), Bilaspur. For the purposes of this order, reference is made to the facts pleaded and documents annexed in Original Application No. 203/00586/14.

2. The brief facts of the case are that the respondents advertised for appointment of 5798 posts in the scale of Rs. 5200-20200 plus Grade Pay of Rs. 1800/- in Raipur, Bilaspur and Nagpur Divisions and workshops of SECR. It is claimed that all the applicants had applied for these posts and after participating in the written test they were found eligible for Physical Eligibility Test (for brevity PET) also, and that all the applicants had cleared PET and were called for verification of documents as well as medical check up. Number of persons called for verification of documents was equal to number of posts plus 20% extra, who were called to meet shortfall, if any, in the panel. The respondents have already issued appointment orders to the persons selected against the notified vacancies.

3. The contention of the applicants is that they have collected information under the Right to Information Act and according to it, large number of vacancies are still existing in these three divisions for these posts. Therefore, the applicants, who are all in the 20% extra candidates list, deserve to be considered and appointed against the available vacancies with the respondents in these categories. According to letter dated 11.2.2014 (Annexure A-4) a large number of persons appointed against the notified vacancies have not joined. Further, according to another information supplied by the respondents vide their letter dated 10.2.2014 (Annexure A-5), 144 appointees had not reported for joining against this employment notification till that date. The applicants have, therefore prayed for consideration of their cases for appointment on the vacancies which have remained unfilled due to non-joining of persons appointed on these posts against the Employment Notification No. 2/2010.

4. The respondents have submitted in their reply that 20% extra candidates are called to take care of eventualities of some of the candidates being declared unfit at the stage of medical examination or not turning up for document verification. As per the letter dated 2.7.2008 (Annexure R-4) by which the provision of calling 20% extra candidates for document verification was made, these extra candidates are to be called primarily to avoid shortfall in the panel. It is further mentioned in this letter that merely calling a candidate for document verification does not in any way entitle him/her to an appointment in the railways. The respondents have further submitted that vide Railway Board's Circular RBE No. 6/2014 dated 10.01.2014 (Annexure R-5) the respondents have changed this system and now no replacement panels are to be called against non-joining of selected candidates. Therefore, in spite of vacancies remaining unfilled due to non-joining of selected candidates no appointments from the list of 20% extra candidates, who were called for document verification, can be made. Hence these Original Applications, being without any merit, deserve to be dismissed.

5. Heard the learned counsel of parties and carefully perused the pleadings of the respective parties and the documents annexed therewith.

6. The learned counsel for the applicants vehemently argued that the Railway Board's circular dated 10.1.2014 prohibiting replacement panels against non-joining of selected candidates, cannot be made effective retrospectively. The applicants participated in the selection against Employment Notification No. 2/2010 and at that time there was no bar on calling replacement panels from Railway Recruitment Cell (for brevity RRC) against non-joining of selected candidates.

7. Learned counsel for the applicants relied on following relevant decisions of Hon'ble Supreme:—

7.1 R.S Mittal v. Union Of India., 1995 Supp (2) SCC 230 wherein it has been held that where there is a vacancy which can be offered to a selected candidate on the basis of his merit position, denial of appointment to him without a proper reason is unjustified for the analogy that the policy cannot be changed retrospectively.

7.2 Director, SCTI for Medical Science & Technology v. M. Pushkaran wherein the select list was abandoned after making some appointments and decision taken to contract out work relating to security guards. The said decision was taken after respondent's turn had come for issue of offer of appointment. On said facts, Hon'ble Supreme Court held that there was no reason for denying appointment to the respondent.

7.3 K. Manjushree v. State of Andhra Pradesh, (2008) 3 SCC 512 wherein their Lordships have held that selection criterion has to be prescribed in advance and rules of game cannot be changed afterwards.

8. On the other hand learned counsel for the respondents submits that while earlier, recruitments for the posts in Pay Band-I with grade pay of Rs. 1800/- were held once in two years, now they are being held annually in terms of the instructions contained in Railway Board's letter No. E(NG)II 2007RR-I/58 dated 8.12.2011 (as mentioned in Annexure R-5). Therefore, the department has now stopped the practice of calling for replacement panels against non-joining of selected candidates. The learned counsel for the respondents has stated that in catena of judgments the Hon'ble Supreme Court has held that policy decision is in the domain of the executive authority of the State and the court should not question the efficacy or otherwise of such policy so long the same does not offend any provision of the statute or the Constitution of India.

9. On perusal of Railway Board's letter dated 2.7.2008 (Annexure R-4), we find that according to it replacement panel may be called after following certain procedure. In this regard relevant para 4(ii) of this circular is reproduced as under:

Even where the number of candidates available after document verification exceeds the number of vacancies, the panel finalized by RRC (Railway Recruitment Cell) shall be equal to number of vacancies only. In case, the Railway administration after giving stipulated joining time to the selected candidates, certifies that certain number of candidates have not turned up within the specified period, another panel equal to the number of candidates finally not turning up for taking appointment will be supplied by RRC. Before calling for replacement in-lieu of the candidates finally not turning up for taking appointment, CPO shall personally satisfy himself that the procedure for cancellation of the order of appointment to the originally empanelled candidates has been strictly followed. Under no circumstances, the number of candidates covered in the original as well as replacement panels shall exceed the number of the vacancies intended by the railway.

(emphasis supplied by us)

10. The right of candidates in 20% extra list begins only after a demand is made for replacement panel to Railway Recruitment Cell after duly following aforesaid procedure. The procedure for working out requirement of replacement panel is not part of either the employment notification or selection procedure. The right of applicants for consideration starts only after certain appointment orders of originally empanelled candidates are cancelled and thereafter a demand is raised for replacement panel. Since no demand has been made in view of the procedure specified in notification dated 2.7.2008 (Annexure R-4) no right for consideration of the applicants has either acquiesced or been infringed.

11. The Hon'ble Supreme Court in the matters of Bajaj Hindustan Ltd. v. Sir Shadi Lal Enterprises Ltd., (2011) 1 SCC 640, has considered the matters pertaining to policy decision taken by the executive and has held that it is in the domain of the executive authority of the State and the court should not question the efficacy or otherwise of such policy so long the same does not offend any provision of the statute or the Constitution of India. Paragraph 41 of the said judgment reads thus:

41. The executive authority of the State must be held to be within its competence to frame a policy for the administration of the State. Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the executive functionaries thereby offending Article 14 of the Constitution or such policy offends other constitutional provisions or comes into conflict with any statutory provision, the court cannot and should not outstep its limit and tinker with the policy decision of the executive functionary of the State. This Court, in no uncertain terms, has sounded a note of caution by indicating that policy decision is in the domain of the executive authority of the State and the court should not embark on the unchartered ocean of public policy and should not question the efficacy or otherwise of such policy so long the same does not offend any provision of the statute or the Constitution of India. The supremacy of each of the three organs of the State i.e. legislature, executive and judiciary in their respective fields of operation needs to be emphasised. The power of judicial review of the executive and legislative action must be kept within the bounds of constitutional scheme so that there may not be any occasion to entertain misgivings about the role of judiciary in outstepping its limit by unwarranted judicial activism being very often talked of in these days. The democratic set-up to which the polity is so deeply committed cannot function properly unless each of the three organs appreciate the need for mutual respect and supremacy in their respective fields.

(emphasis added by us)

12. After considering all pros and cons of the matter and the settled legal position as narrated above, we are of the considered opinion that the applicants are not entitled to the reliefs sought for in these Original Applications. Accordingly, all these Original Applications are dismissed, however, without any order as to costs.