Hon'ble Rohit Ranjan Agarwal,J.
The learned counsel for the petitioners prays for permission to correct the array of the parties.
The permission is granted. The necessary correction may be made during the course of the day.
Heard Sri Praveen Kumar Srivastava, learned counsel for the petitioners; and Sri Pradeep Kumar Mishra along with Sri Rajesh Kumar; learned counsel for the respondents.
This writ petition has been filed assailing the order dated 26.11.2020, passed by Central Administrative Tribunal, Allahabad Bench, Allahabad, whereby order dated 13.11.2018 passed by Railway authorities was quashed and the department was directed to invoke Para 219(1) of the Indian Railways Establishment Manual (for short "IREM") to make amends for procedural irregularities.
The facts in brief are that private respondent was working as Signal Maintainer, Grade-I in the Indian Railways, and had applied for promotion to the post of Staff and Welfare Inspector (for brevity "SWI"). A notification was issued on 31.07.2017 by Railway authorities to fill up 11 vacancies of SWI. Private respondent applied and appeared in written examination. Result was declared on 13.04.2018, wherein a total of 19 candidates were declared successful, including the private respondent. However, a final panel of the selected candidates was declared on 25.05.2018 for only 10 candidates but name of private respondent did not find place. While one post of unreserved candidate was left vacant.
As the contesting respondent was provided a copy of Annual Confidential Report, now called as Annual Performance Appraisal Report (for brevity "APAR"), for the year 2017 on 06.06.2018, being not satisfied with the grading, a representation was moved and, on 25.06.2018, it was upgraded. However, in between, final panel of the selected candidates was declared on 25.05.2018. Accordingly, the contesting respondent made a representation to the Railways authorities on the ground that as APAR was upgraded, his candidature be considered in terms of the upgraded APAR. On 13.11.2018, the representation was rejected by the railway authorities.
Aggrieved by the said action, OA No. 330/ 00037 of 2019 was filed by the contesting respondent. The Tribunal relying upon the instructions of DOPT and Railway Board as well as Para 219(1) of IREM held that as there was a procedural irregularity, Railway authorities should make amends by invoking Para 219(1) of IREM.
Learned counsel for the petitioners submitted that there was no irregularity in the constitution of the select list or in the selection process therefore, the Tribunal fell in error in quashing the order dated 13.11.2018. Reliance has been placed upon a decision of the Apex Court in the case of Union Public Service Commission vs. M.Sathiya Priya and others 2018 (15) SCC 796 so as to contend that the Tribunal cannot interfere in the selection process and it is not open for it to sit over the assessment made by the selection committee unless the process of assessment is vitiated on the ground of bias, mala fide or arbitrariness. As, in the present case, the final select panel was declared on 25.05.2018 whereas the APAR of the contesting respondent for the year 2017 was upgraded on 25.06.2018, in view of Para 219(1) of the IREM, the select list cannot be cancelled or amended.
Sri P.K. Mishra, learned counsel appearing for the respondent, submitted that the copy of APAR for the year 2017 was provided to the contesting respondenton 06.06.2018 and, on representation, it was upgraded on 25.06.2018, as such, claim of contesting respondent should be considered as per Para 219(1) of IREM. He further submitted that as per own departmental instructions, borne out from circular letter dated 21.08.2008 (at page 117 of the paper-book), it is clear that before calling a selection it has to be ensured that the ACRs of all candidates under zone of consideration are available and complete in all respects, which implies that all entries below the benchmark must be communicated to the person concerned and representation, if any, be dealt with before the selection. Whereas, in the instant case, the select panel was drawn even before the communication of entry. Hence, once the entry was upgraded, upon representation, the procedural irregularity that crept in was liable to be corrected under Para 219(1) of IREM. Further, in the present case, select panel of only 10 candidates was declared, while promotion was to be made against 11 vacancies, and there stood one vacancy of unreserved candidate lying vacant, therefore order of the Tribunal calls for no interference. Reliance has been placed upon a decision of the Apex Court in Special Leave to Appeal (Civil) No(s). 26556 of 2004, Abhijit Ghosh Dastidar vs. Union of India and others to contend that all entries below the benchmark entry need be communicated to the incumbent.
We have heard learned counsel for the parties and perused the material on record.
A perusal of Para 219(1) of IREM clearly reveals that if after the formation and announcement of the panel with the approval of the competent authority it is found subsequently that there were procedural irregularities or other defects and it is considered necessary to cancel or amend such a panel, the same should be done after obtaining approval of the authority next higher than the one that approves the panel. Relevant para is extracted below:-
"Para 2019(1) After the competent authority has accepted the recommendations of the Selection Board, the names of candidates selected will be notified to the candidates. A panel once approved should normally not be cancelled or amended. If after the formation and announcement of the panel with the approval of the competent authority it is found subsequently that there were procedural irregularities or other defects and it is considered necessary to cancel or amend such a panel, this should be done after obtaining the approval of the authority next higher than the one that approved the panel."
(Authority-Railway Board's L.No.E(NG) 1-67 PM 1-47 dt. 5-2-69)"
As it is not in dispute that the contesting respondent was provided copy of the APAR for the relevant year 2017 on 06.06.2018, that is after declaration of final panel on 25.05.2018 and, on representation of the contesting respondent, the APAR of the contesting respondent for the year 2017 was upgraded on 25.06.2018, while the panel list was declared on 25.05.2018, at the time of selection, the APARs of the contesting respondent was not complete before being put to the Departmental Promotion Committee (DPC), while the letter dated 21.08.2008 of the Railway authorities clearly shows that APARs should be completed before any selection is considered, hence, in our considered view, a procedural irregularity had crept in declaration of the final select panel which was amenable to correction under Para 219(1) of IREM. Thus, keeping in mind that the APAR of the contesting respondent was not complete when the DPC met, the Tribunal rightly interfered in the matter and quashed the order dated 13.11.2018 with direction to the Railway authorities to invoke Para 219(1) of the IREM to make amends for the procedural irregularity.
We therefore find no error in the order of Tribunal more so, when, admittedly, one post lies vacant.
Accordingly, writ petition fails and is dismissed.
Order Date :- 22.2.2021 V.S.Singh