Central Administrative Tribunal - MumbaiAll India Sc And St Railway Employee'S ... vs Union Of India (Uoi) And Ors. on 17 March, 2006Equivalent citations: 2007(1)SLJ243(CAT)ORDER
 

Anand Kumar Bhatt, Member (A)1. The following relief has been sought by the applicants in the present case.(a) This Hon'ble Tribunal may graciously be pleased to call for the records of the case and after perusing the same, be pleased to declare that the order dated 19.4.2005 is legal and valid.(b) It may be declared that the order dated 11.11.2005 is illegal and be quashed.(c) The Hon'ble Tribunal is requested to reconsider its decision dated 7.10.2005 rendered in O.A. Nos. 282 of 2005 and 307 of 2005, in the light of judgment in K. Ajit Babu's case, rendered by the Hon'ble Supreme Court on the same question.(d) It may be ordered that the Notifications dated 17.11.2004 by which the respondents have called selection the post of Loco Pilot (Goods) is illegal on the ground that there is a bunching of vacancies.(e) Hold and declare that the official respondents must conduct selection of Loco Pilot (Goods) based on year-wise vacancies separately and not by bunching of vacancies.(e-1) It may be declared that the order date 30.12.2005 (Annexure A-11) is illegal and the same be quashed.(e-2) It may be declared that the impending and imminent reversion of the applicants be declared as illegal.(f) Cost of this original application be provided for.(g) Any other and further order as this Hon'ble Tribunal may deem fit, proper and necessary in the circumstances of the case.2. The facts in brief are that a written examination was conducted for promotion of shunters to the post of Goods Driver on five different dates namely 10.12.2004, 14.12.2004, 18.12.2004, 22.12.2004 and 26.12.2004. As the examination was held on different dates and different papers were set for different dates, it so happened that the written paper of 10.12.2004 was allegedly out of syllabus and was unduly tough and therefore, there were large number of failures on 10.12.2004 as compared to other dates. On 10.12.2004 out of 35 candidates who appeared only 22 were declared as failed and out of 22 failed candidates, 19 were SC/ST. On representation, the matter was considered by the respondents and vide order dated 19.4.2005 (Annexure A-5), selection of Goods Driver for which written test was held in the month of December, 2004 and further result of the same was declared on 14.2.2005 was treated as canceled and it was decided that the same selection shall be processed denovo. The part cancellation of the selection as requested by the aggrieved employees was not agreed to. In two O As. 282/2005 and 307/2005, 41 and 47 applicants respectively came before the Tribunal. These were the people who had qualified in the written examination. The Tribunal in their order dated 7.10.2005 quashed and set aside the order dated 19.4.2005 by which the entire selection was canceled and the respondents were directed to give another opportunity to the persons who had failed in the written test held on 10.12.2004 and thereafter complete the process of selection as per rules. The Tribunal relied heavily on the verdict of the Apex Court inAnamica Mishra and Ors. v. U.P. Public Service Commission, Allahabad and Ors.1990(1) SLJ 78 (SC) : (1991 SCC (L&S) 461 wherein it was held:Quote
 

Cancellation of the entire examination was unjustified and holding fresh interviews on the basis of the same written examination would have sufficed
 

Unquote3. In compliance of the said order of the Tribunal, respondents vide their order dated 11.11.2005, decided to conduct the written test of the candidates who had failed in the written test held on 10.12.2004 and the said fresh written test was scheduled on 10.12.2005. This was meant only for the 22 candidates who failed in the examination conducted on 10.12.2004 out of whom 19 were SC/ST and 3 were general candidates. However, nobody appeared for the written test which was scheduled on 10.12.2005. The applicants i.e. All India Scheduled Castes and Scheduled Tribes Railway Employees Association, Running Staff Branch, Mumbai Division through its Secretary and one of the affected persons have now come in the present O.A. The relief sought is that the Tribunal declare the order dated 19.4.2005 of the respondents by which the entire selection was canceled as legal and valid and hold that the order dated 11.11.2005 by which re-test was scheduled for the failed candidates of 10.12.2004 is illegal and be quashed. It has also been prayed that the Tribunal re-consider its decision dated 7.10.2005 in O.A. Nos. 282/2005 and 307/2005. Reliance was placed on the Apex Court judgment in K. Ajit Babu's case. Further, it was prayed that the notification dated 17.11.2004 by which the respondents had called selection for Loco Pilot (Goods) is illegal and selection of loco pilot be based on year-wise vacancies.4. Applicants were represented by Mr. D.V. Gangal. Official respondents 1 to 3 by Mr. S.C. Dhawan. Respondents 4 to 7 by Mr. G.K. Masand with Mrs. S.R. Sawant whereas respondents 8 to 11 by Mr. G.S. Walia.5. Mr. G.K. Masand represented the interests, of those candidates who had passed the selection on various dated. Respondents 8 to 11 were represented by Mr. Walia who supported the present O.A. In the written submission which has been submitted on their behalf prayer is that they also want the order dated 11.11.2005 to be held as null and void. They have supported the contention of the O.A. that the order of the Tribunal dated 7.10.2005 is illegal and against the law and there is no provision to cancel part of the panel. It may be noted that these respondents (respondents 8, 9 and 10) had appeared on 10.12.2004 and had failed because allegedly there was out of syllabus question paper and there was no option and therefore their case is similar to applicants 1 to 19 of the list at page 71 of the paperbook.6. We have heard all the four Counsel in detail. It is appropriate that the preliminary question as to whether we can hear the present O.A. which questions the validity of the order of the Tribunal dated 7.10.2005 in O.A. Nos. 282/2005 and 307/2005 is decided first. Mr. D.V. Gangal relied on the judgment ofK. Ajit Babu and Ors. v. Union of India and Ors.. The following is the relevant portion of the Apex Court judgment:Consistency, certainty and uniformity in the field of judicial decisions are considered to be the benefits arising out of the "Doctrine of Precedent". The precedent sets a pattern upon which a future conduct may be based. One of the basic principles of administration of justice is, that the cases should be decided alike. Thus the doctrine of precedent is applicable to the Central Administrative Tribunal also. Whenever an application under Section 19 of the Act is filed and the question involved in the said application stands concluded by some earlier decision of the Tribunal, the Tribunal necessarily has to take into account the judgment rendered in earlier case, as a precedent and decide the application accordingly. The Tribunal may either agree with the view taken in the earlier judgment or it may dissent. If it dissents, then the matter can be referred to a larger Bench/full Bench and place the matter before the Chairman for constituting a large Bench so that there may be no conflict upon the two Benches. The larger Bench then has to consider the correctness of earlier decision in disposing of the later application. The larger Bench can over-rule the view taken in the earlier judgment and declared the law, which would be binding on all the Benches [See John Lucas (supra)]. In the present case, what we find is that the Tribunal rejected the application of the appellants thinking that appellants are seeking setting aside of the decision of the Tribunal in transfer application No. 263 of 1986. This view taken by the Tribunal was not correct. The application of the appellant was required to be decided in accordance with law.Often in service matters the judgments rendered either by the Tribunal or by the Court also affect other persons who are not parties to the cases. It may held one class of employees and at the same time adversely affect another class of employees. In such circumstances the judgments of the Courts or the Tribunals may not be strictly judgments in personam affecting only to the parties to the cases, they would be judgments in rem. In such a situation, the question arises, what remedy is available to such affected persons who are not parties to a case, yet the decision in such a case adversely affect to their rights in the matter of their seniority. In the present case, the view taken by the Tribunal that the only remedy available to the affected persons is to file a review of the judgment which affects them and not to file a fresh application under Section 19 of the Act.Further held that:...Section 22(3)(f) of the Act empowers the Tribunal to review its decisions. Rule 17 of the Central Administrative Tribunal (Procedure and Rules) (hereinafter referred to as "the Rules") provides that no application for review shall be entertained unless it is filed within 30 days from the date of receipt of the copy of the order sought to be reviewed. Ordinarily, right of review is available only to those who are party to a case. However, even if we give wider meaning to the expression "a person feeling aggrieved" occurring in Section 22 of the Act whether such person aggrieved can seek review by opening the right of review is not a right of appeal where all questions decided are open to challenge. The right of review is possible only on limited grounds, mentioned inOrder 47 of the Code of Civil Proceduremay not be applicable to the Tribunals but the principles contained therein surely have to be extended. Otherwise there being no limitation on the power of review it would be an appeal and there would be no certainty of finality of a decision. Besides that, the right of review is available if such an application is filed within the period of limitation. The decision given by the Tribunal unless reviewed or appealed against, attains finality. If such a power to review is permitted, no decision is final, as the decision would be subject to review at any time at the instance of party feeling adversely affected by the said decision. A party in whose favour a decision has been given can not monitor the case for all times to come. Public policy demands that there should be end to law suits and if the view of the Tribunal is accepted the proceedings in a case will never come to an end. We, therefore, find that a right of review is available to the aggrieved persons on restricted ground mentioned inOrder 47 of the Code of Civil Procedureif filed within the period of limitation.(Emphasis ours)7. If we come to the facts of the present case notification was issued on 17.11.2004 for conducting selection for the post of Loco Pilot (Goods) in the grade of Rs. 5000-8000 for 303 posts, 251-General, 18-SC, 34-ST candidates. Only 175 employees were found to be eligible who appeared in the written test on five different dates, those who failed on one of the dates i.e. 10.12.2004 had made representation to the respondents on the basis of which the entire result of the written test was canceled. The passed candidates being aggrieved by the cancellation of the entire list came in two as to the Tribunal where the Tribunal after hearing them decided that it is not possible to cancel the entire selection and had directed the respondents to give another opportunity to the persons who had failed in the written test held on 10.12.2004. The respondents in compliance of the order of the Tribunal fixed another date for written test for the candidates who had failed on 10.12.2005. As the facts stand nobody appeared on the date fixed for re-test and the All India Scheduled Castes and Scheduled Tribes Railway Employees Association has now come before the Tribunal questioning the validity of the order of the Tribunal and the action taken by the respondents in compliance of the order of the Tribunal dated 7.10.2005. The applicants have relied on the judgment of the Apex Court in K. Ajit Babu. The basic issue decided by the Apex Court is that in case there is a decision of the Tribunal which is affecting persons who were not parties in the application decided by the Tribunal, the matter can always be brought by them before the Tribunal in a review petition. However, the Apex Court opined that the aggrieved person cannot seek review by opening the whole case decided by the Tribunal. Review is permissible only on limited grounds as mentioned inOrder 47 of CPCand it is filed within the period of limitation. The Apex Court also discussed the doctrine of precedent and stated that if a question stands concluded by earlier decision of the Tribunal, this has to be taken as a precedent. Further that the Tribunal may either agree with the view taken by the earlier judgment or dissent. If it dissents, then the matter can be referred to Larger Bench/Full Bench. Now the point is that Mr. Gangal in this oral submissions stated that the present bench may consider referring the matter to larger Bench to re-consider the decision of the Tribunal dated 7.10.2005. However, we find that the doctrine of precedent has been interpreted by the Apex Court so that if a principle or a question has been decided by earlier decision, the same question cannot be considered by a co-ordinate Bench and a different conclusion drawn and it has to be referred to a larger Bench. The Apex Court has further held that a review petition can be brought by affected parties within the limited scope of review and not otherwise. The Apex Court has also said that if there was no power of limitation in review it would become appeal and there would be no certainty or finality to a decision. In the present case, an Association by the name of All India Scheduled Castes/ Scheduled Tribes Railway Employees Association, Running Staff Branch, Mumbai Division has come before the Tribunal and have stated they were quite happy with the earlier order of the respondents for total cancellation of the selection. Mr. Gangal in the O.A. has alleged that the result of the written test is heavily biased against SC/ST employees, there is bunching of vacancies and there was bias against SC/ST employees.8. It is apparent that the ratio established inAjit Babu's case is that if a question or principle has been decided and another O.A. is brought to decide the issue on the same principles, the Tribunal has to refer the case to a larger Bench if it does not agree with the earlier view taken by the Tribunal. However, the Apex Court ratio cannot be interpreted so as to allow any of the affected parties to question the decision of the Tribunal in the same cause of action except in a review petition which is to be within the limited scope of review. It is worth noting that if any of the affected parties being dissatisfied with an order of the Tribunal come before a co-ordinate Bench of the Tribunal, on the same or related cause of action (and not the same issue or principles) it would create chaos in that the decision of a Division Bench will not be final and can always be brought for re-hearing. If this principle is accepted, this will open a flood gate and the entire purpose of establishment of Administrative Tribunal to expedite the disposal of the grievance of Government employees will be defeated. A written test was conducted by the respondents for promotion to the post of Goods Driver on five different dates in December 2004. The grievance was raised by the failed candidates on 10.12.2004 that there is a very large number of failure on that date especially of SC/ST candidates and the respondents thought it prudent to cancel the entire selection. This gave rise to grievance by the candidates who had passed and had come before the Tribunal in O.As. 282/2005 and 307/2005 where the respondents were directed not to cancel the entire selection but give another opportunity to failed candidates on 10.12.2005. The issue was raised before the respondents by the two recognized unions and a decision was taken. Being aggrieved by the decision the passed candidates had come before the Tribunal where after hearing the parties only a sectional cancellation was directed. Now those candidates who failed on 10.12.2004 were given another chance to appear which they did not avail of. Instead they have come in the present O. A. saying that the total cancellation which was done by the respondents earlier was correct and not the sectional cancellation which has been decided by the Tribunal. It is not very clear how the present applicants are affected by the order of the Tribunal where relief was given keeping in view large number of failures on 10.12.2004 and which included out of 22 failed candidates 19 SC/ST candidates. It would have been understandable if the candidates who had failed on other four dates including SC/ST candidates were aggrieved by this order of the Tribunal and how the present applicant Association is protecting the interest of SC/ST employees by insisting on the earlier cancellation of the entire result of the written test is not understood.9. To sum up, we do not think that in the same matter, and for the same selection for which a decision has been given by the Tribunal on 7.10.2005 can be re-heard by a coordinate Bench so as to result in a reversal of the earlier judgment. The remedy available to the present applicants would be going to the higher forum.In our view, the reliance placed by the applicants on the ratio ofAjit Babu's case is mis-conceived and we cannot re-hear what has been already heard and decided by the Tribunal in the order dated 7.10.2005. In view of this there is no need to go into the merits of the case.10. The O.A. is dismissed. No cost.