IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY THIRD DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 12070 of 1999 Between: 1 D.Kalyan Ram son of D.V.G.L.N.Moorthy South Central Railway, Rail Nilayam Secunderabad 2 M.Manickam son of T.U. Muthu Ambalam South Central Railway, Rail Nilayam Secunderabad ..... PETITIONERS AND 1 General Manager, Union of India South Central Railway, Rail Nilayam. Secunderabad-500 071 2 Financial Adviser and Chief Accounts Officer, Union of India South Central Railways, Rail Nilayam, Secunderabad. 500 071 3 Cheif Personal Officer, Union of India South Central Railway, Rail Nilayam, Secunderabad-500 071 4 S.Balasubramaniam son of S.Satyanarayana, Financial Adviser and Cheif Accounts Officer South Central Railway, Rail Nilayam, Secunderabad-500 0071 5 S.Sujata D/o S.Sitaramaiah, Financial Adviser and Chief Accounts Officer South Central Railway, Rail Nilayam, Secunderabad-500 071 .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ or order or direction or writ, more particularly one in the nature of Writ of Certiorari to call for records pertaining to O.A.No. 232/97 dt. 8/01/99 of Central Administrative Tribunal, Hyderabad Bench, Hyderabad and quash the same as illegal, arbitrary and contrary to the law and consequently quash Memo.No.FA/Con/2/3/3, dt. 4/10/94 in so far as respondents 4 and 5 are concerned and consequently direct the official respondents to promote the petitioners as Asst. Accounts Officers w.e.f.4.10.94 with all consequential benefits. Counsel for the Petitioners : DR.K.LAKSHMI NARASIMHA Counsel for the Respondent No.: MR.GOURI SHANKAR SANGHI The Court made the following : ORDER: (PER HON’BLE SRI JUSTICE GHULAM MOHAMMED) This Writ Petition has been filed by the petitioners seeking to issue a writ of Certiorari calling for the records pertaining to the order dated 08.01.1999 passed in O.A.No.232 of 1997 on the file of the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short, ‘the Tribunal’) and quash the same and consequently quash the Memo.No.FA/Con/2/3/3, dated 04.101994 insofar as respondents 4 and 5 are concerned and consequently direct the respondents 1 to 3 to promote the petitioners as Assistant Accounts Officers w.e.f. 04.10.1994 with all consequential benefits. 2. Initially the petitioners herein approached the Tribunal under Section 19 of the Administrative Tribunals Act, 1985, with a prayer to issue an order or direction directing the respondents 1 and 2 to rectify the panel published under proceedings vide No.FA/Con/2/3/3, dated 04.10.1994 in respect of Assistant Accounts Officers by including the names of the petitioners at appropriate places with consequential and attendant benefits including promotion to the post of Assistant Accounts Officers from due dates with seniority and arrears of pay. 3. The brief facts of the case are: Both the petitioners were initially appointed as Junior Clerks Gr.II in the Accounts Department of South Central Railway and they progressed in their career to the posts of Clerk Gr.I and further to Senior Section Officers with effect from 01.01.1986. At the time of filing the O.A., they were working as Assistant Accounts Officers with effect from 12.05.1995. On 21.06.1991, a notification bearing No.AAD/EO1 was issued for holding written test for formation of a panel for filling up the Group-B posts in the Accounts Department against 75% quota. Thereafter, on 02.11.1993, a further notification bearing No.AAD/E.02/93 was issued calling for applications from Group-C staff of the Accounts Department holding the post in the grade with minimum Rs.1400/- or in the higher Group-C grades and have put in a minimum of 5 years of regular service in the grade as on 23.01.1994 and who have qualified in the Appendix 3 IREM Examination for filling up vacancies against 25% quota of selection for the post of AAO in continuation of the 75% selection. The total vacancies, which are to be filled from Group-C staff in accordance with the Rule 201.1, were calculated as 32 and those 32 vacancies were to be filled to the extent of 24 vacancies through 75% selection and 8 vacancies through LDCE 25% selection. The petitioners competed in 25% selection against OC quota. The written examination for the 75% selection was fixed by the notification dated 21.06.1991 and the date of examination was fixed as 31.07.1991. In the meantime, there was litigation with regard to certain circulars issued by the Railway Board by filing OAs before the Tribunal which were pending upto December, 1993. Thus, only after two years of the written test for 75% selection was completed and pending cases were disposed of, the selection against 25% quota was taken up and finalized by empanelling 8 employees by notification dated 04.10.1994. In this list, the names of the petitioners were not finding place. The contention of the petitioners was that there were ineligible candidates numbering about 6 who were admitted in the selection process and among them respondents 4 and 5 were selected and empanelled. They relied on the Railway Board’s Circular No.E(GP)79/2/101, dated 16.06.1985, to state that notice for the LDCE should generally be issued along with the notice issued for the selection against 75% vacancies with the indication that the dates for the LDCE would be announced later and also the number of vacancies to be filled on the basis of the LDCE should be mentioned in the notice for the information of the employees. The eligibility criteria for minimum service requirement of five years mentioned in para.2 of the notification dated 02.11.1993 should be in lieu with the date of notification of 75% and it should not relates to any other date later than 21.06.1991 i.e. the date of notification of 75 %. They further added that para.2 of the notification dated 02.11.1993 should state that those who appeared for the 25% selection as per that notification should have put in a minimum of 5 years of regular service in the post of Rs.1400/- or in higher Group-C grade as on 21.06.1991 and not as on 23.01.1994 as stipulated in the notification. If the later date of 23.01.1994 is fixed for considering the minimum 5 years of regular service, then those who had not completed 5 years of service as on 21.06.1991 will also compete with others. That is against the spirit of the Railway Board’s letter dated 16.06.1985. As the 25% selection for which the notification was issued on 02.11.1993 stipulated the date for service eligibility later than 21.06.1991, the date on which the notification for 75% selection was issued, the Railway Board’s instruction dated 16.06.1985 was violated. Apparently, the ineligible candidates who had not completed 5 years of regular service on 21.06.1991 were admitted for 25% selection and 2 of them namely respondents 4 and 5 were also empanelled. Thus, chances of promotion for the petitioners herein have been jeopardized. Had the above irregularity not been committed, respondents 4 and 5 would not have come in the panel and the petitioners would have been empanelled. It is the further case of the petitioners that the Southern Railways followed the direction given by the Railway Board in their letter dated 16.06.1985 in regard to the service eligibility condition and hence, the South Central Railway was obliged to follow that practice. In this connection, they submitted representation dt.26.07.1996 to the 2nd respondent. The 2nd respondent issued a corrigendum to reckon the related service eligibility period for the 25% selection on par with issue of notification for 75% selection for the assessment period 01.07.1994 to 30.06.1996, as seen from letter No.AAD/E02/1994/1995, dated 14.08.1996. After the issue of the letter dated 14.08.1996 the petitioners also took up the matter with the 2nd respondent for correcting the error which had crept in LDCE selection held in 1994 by the representations dated 10.12.1996 and 08.01.1997. As the said representations were not considered by the 2nd respondent the petitioners filed O.A. with the prayer stated supra which was dismissed. Hence, this writ petition by the petitioners. 4. Heard learned Dr.K.Lakshmi Narasimha, learned counsel appearing for the petitioners and Sri Gouri Shanker Sanghi, learned counsel appearing for the respondents 1 to 3 and Sri K. Siva Reddy, learned counsel appearing for the respondents 4 and 5. 5. Learned counsel appearing for the petitioners contended that the petitioners are eligible and qualified to be promoted to Group-B as Assistant Account Officers against 25% quota through LDCE in 1994, but they were denied due to non-implementation of eligibility criteria stipulated in the Rules and given scope to the respondents 4 and 5 for unintended benefit. It is further contended that though instructions were issued by the Railway Board vide its letter dated 16.06.1985, stipulating the date of eligibility to be reckoned for LDCE examination, the same was not followed. Learned counsel vehemently argued that the date of eligibility to be reckoned for LDCE should also be the same as 21.06.1991 with that of 75%. It is further contended that the respondents 4 and 5 though not eligible to be considered for selection as they have not fulfilled the required minimum regular service of five years as on 21.06.1991, their subsequent fulfillment of the criteria is erroneous. It is further contended that the Tribunal was carried away with a thought that floodgates would be opened if the case of the petitioners herein was considered. Learned counsel has drawn our attention to Rule 228 of the Rules Governing Promotion of Subordinate Staff, relevant portion of which reads as hereunder: “228. Erroneous Promotions.—(1) Sometimes due to administrative errors, staff are over-looked for promotion to higher grades could either be on account of wrong assignment of relative seniority of the eligible staff or full facts not being placed before the competent authority at the time of ordering promotion or some other reasons. Broadly, loss of seniority due to the administrative errors can be of two types:- (i) Where a person has not been promoted at all because of administrative error, and (ii) Where a person has been promoted but not on the date from which he would have been promoted but for the administrative error. Each such case should be dealt with on its merits. The staff, who have lost promotion on account of administrative error, should on promotion be assigned correct seniority vis-à-vis their juniors already promoted, irrespective of the date of promotion. Pay in the higher grade on promotion may be fixed proforma at the proper time. The enhanced pay may be allowed from the date of actual promotion. No arrears on this account shall be payable as he did not actually shoulder the duties and responsibilities of the higher posts. 228.II. (a)….. (b)…… [c] …. (d) Cases of erroneous promotion/appointment in a substantive or officiating capacity should be viewed with serious concern, and suitable disciplinary action should be taken against the officers and staff responsible for such erroneous promotion or appointment. The orders refixing the pay should be issued expressly under Rule 2927 (1327)-R.II. He has also drawn our attention to paras.3, 4 and 5 of the judgment of this Court in D.Viswanatham v. Union of India[1], which read as hereunder: (3) The post of Assistant Accounts Officer, a Gazetted post in Group-B (previously known as Class II) is the next grade of promotion in the Accounts Department. Prior to the coming into force of the Constitution of India, promotion to the gazetted posts of Assistant Accounts Officers in the Indian Railways was made on the basis of the rules issued by the Governor General in Council acting in exercise of his powers under Section 241(2) of the Government of India Act, 1935. The said Rules were known as the Indian Railway Establishment Code Volume I. The Indian Railway Establishment Code was being revised from time to time and after coming into force of the Constitution of India, the said rules were revised by the President of India in exercise of the power conferred by the proviso to Article 309 of the Constitution of India. Rule 133 which deals with promotion to the gazetted post of Assistant Accounts Officer provides that the posts of Assistant Accounts Officers shall ordinarily be filled by selection from Non-Gazetted Railway Servants who had passed the examination qualifying for promotion as Accountants or were exempted from passing the examination. This rule did not provide for any quota for promotion to the posts of Assistant Accounts Officers had to be filled up by selection by considering the cases of the railway employees who had passed the examination qualifying for promotion to the posts of Accountants. Para.205 of Chapter II of the manual relating to rules governing promotion of subordinate staff provides that certain facts mentioned therein should be taken into account. But in the case of promotion of accounts department staff, it was not necessary to pass the tests stipulated in para.205 of Chapter II. (4) While so, the President of India in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India issued a notification on 6-1-1965 making rules regarding recruitment to the posts of Assistant Accounts Officers Class II in the Accounts Department of the Indian Railways. According to the special rules issued in 1965, the posts of Assistant Accounts Officers (Class II) are selection posts. The posts of Junior Accountants/Junior Inspectors of Station Accounts/Junior Inspectors of Stores accounts mentioned in Para.167 of the manual, and the posts of Senior Accountants/Senior Inspectors, of Station Accounts/Senior Inspectors of Stores accounts were merged into one category in the year 1971. Subsequently, in 1974, the posts of Junior Accountants and Senior Accountants were merged into one category and re- designated as Section Officers (Accounts). The posts of Section Officers (Accounts) and other equivalent posts held by the petitioners are Class III posts in the Accounts Department of the Indian Railways. Promotions to the pots of Assistant Accounts Officers (Class II) have to be made in accordance with the Indian Railways Accounts Department, Assistant Accounts Officers (Class II) recruitment Rules of 1965 issued by the President of India under the proviso to Article 309 of the Constitution. According to Special Rules, the posts of Assistant Accounts Officers (Class II) are selection posts and they have to be filled up by promotion through selection, the selection being made on the basis of viva voce test and written test. The source of promotion to Class II Posts are the permanent Class III staff of Accounts Department. The selection will normally be made from the staff of the highest Class high scales of pay. But if the field of selection is not adequate, those in one or two scales of pay below could also be considered. Ordinarily, candidates with 5 years of service in all the three scales of pay are eligible for promotion. Direct recruitment or other modes of recruitment has to be resorted to only where the posts could not be filled up by promotion. (5) While the said 1965 Rules for promotion to Assistant Accounts Officers were in force, the Railway Board issued certain administrative instructions in their letter E(G)76/2/96, dated 3-8-1977 addressed to the General Managers of All Indian Railways and others. According to the administrative instructions, 25% of the vacancies arising in the category of Assistant Accounts Officers (Class II) had to be filled up by limited departmental competitive examination as mentioned in the scheme annexed to the said letter. The rest of the 75% of the vacancies in the posts of Assistant Accounts Officers (Class II) were to be filled up in accordance with the 1965 Rules.” He has also relied on the following decisions: 1) Ramesh Kumar Choudha v. State of M.P.[2] 2) Jasbir Rani & Ors. V. State of Punjab[3] 3) R.P.Bhardwaj v. Union of India[4] 6. On the other hand, learned Counsel appearing for the respondents 1 to 3 contends that the prayer in the writ petition is only to rectify the seniority of the petitioners. He further contended that the petitioners though aware of the statutory rules and regulations, they have not challenged the notification itself, but having participated in the examination, and having unsuccessful in viva-voce they cannot turn back and say that the authorities have committed illegality and the same cannot be allowed to continue after a long lapse of time since settled things cannot be unsettled at this point of time. He placed reliance on the judgments of the Supreme Court in DHANANJAY MALIK & ORS. V. STATE OF UTTARANCHAL & ORS[5] and MARRIPATI NAGARAJA & ORS V. GOVT. OF A.P. & ORS[6]. 7. Learned counsel appearing for R4 and R5 sail with the official respondents and contend that the petitioners have astutely worded the relief portion so as to get their names included without challenging the notification, which is not tenable. Learned counsel appearing for the respondents 4 and 5 contended that the respondents 4 and 5 were successful in the written examination and interview and as such settled things cannot be unsettled at this length of time. It is also contended that by the date of notification they were having five years or required qualifying service in the feeder category. 8. In view of the rival contentions, the point that arises for consideration is – when once the petitioners though fully aware of the contents of notification, appeared and succeeded in the written examination, though they were unsuccessful in the viva voce, they kept quiet for years together and made representations to rectify the mistakes is tenable in law? 9. In short the prayer of the petitioners was to empanel them in the panel issued on 4.10.94 by deleting the names of R4 and R5 without challenging the notification. In view of the nature of the relief as sought for, we have perused the selection proceedings and all other material. Indisputably the applicants herein have competed in 25% selection against OC quota and they belong to unreserved community. Though number of employees responded to the said notification dated 2.11.1993, only 19 candidates were qualified for viva-voce and out of them 8 candidates i.e. 7 from OC and 1 from SC community were empanelled. The names of the petitioners did not find place amongst the empanelled OC candidates. R4 and R5 were selected in the notification dated 2.11.1993. 24 vacancies were earmarked for 75% selection quota and 8 vacancies were earmarked for 25% selection quota. Admittedly, the applicants have not challenged the notification dated 2.11.1993 and especially the conditions laid down with regard to the possession of minimum 5 years of regular service in the grade as on 23.1.1994 as laid down in para 2 of that notification. Without challenging the said notification, the petitioners cannot ask for their empanelment in the final selected list issued by notification dated 04.10.1994. 10. As rightly considered by the Tribunal Railway Board’s letter dated 16.6.1985 does not clearly indicate the date upto which it should be reckoned for the purpose of fixing the minimum eligibility service condition for 25% selection. 11. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the notification and selection with regard to the requisite service criteria. The petitioners succeeded in the written test and contested in the viva voce have taken a chance to get themselves selected through the notification. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at the written test and oral interview they have filed these writ petitions at this length of time. If a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of the examination was unfair or was not in accordance with the rules. In the present case, as already pointed out, the writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the notification and selection process without participating in the selection process. This has not been done. The petitioners after having appeared at the examination and viva voce without any demur are, therefore, estopped and precluded from questioning the selection process on being unsuccessful. 12. In the circumstances of the case and in view of the law laid down by the apex Court that when once a person appears for an examination duly fulfilling the selection criteria and kept quiet years together without challenging the notification, we are not inclined to differ with the judgment of the Tribunal and hence, this writ petition fails and the same is hereby dismissed. No costs. GHULAM MOHAMMED,J 23rd December, 2008. B.SESHASAYANA REDDY,J TNB/CS ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{LOBIS} THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 12070 of 1999 (Order of the Division Bench delivered by Hon’ble Sri Justice Ghulam Mohammed) Date:23rd December, 2008. [1] 1985 (1) An.W.R. 89 [2] (1996) 11 SCC 242 [3] 2001 AIRSCW 4568 [4] (2005) 10 SCC 244 [5] 2008(2) SUPREME 328 [6] 2007(7) SUPREME 274