IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8628 of 2010 1. RAJ KUMAR PODDAR, SON OF SHRI MAHENDRA PODDAR, QR. NO.67 (L), STATION ROAD, SAMASTIPUR, DISTRICT- SAMASTIPUR. 2. PREM SHANKAR KUMAR, SON OF LATE DHYANI MANDAL, RESIDENT OF SAHARSA STATION, SAHARSA. 3. PANKAJ KUMAR, SON OF BASUDEO NARAYAN, RESIDENT OF BHAGRADAHI, WARD NO.15, SAMASTIPUR. 4. RAMASHANKAR PRASAD, SON OF KANTAWALA, KAMTAUL, DARBHANGA. 5. SARN KUMAR, SON OF LATE DHANESHWAR DAS, RESIDENT OF SONBARSA KACHHARI, STATION SONBARSA. 6. MAHENDRA PRASAD SAH, SON OF LATE DHANUKI SAH, RESIDENT OF SAHARSA STATION SAH RAKSHA. 7. MITHILESH RAM, SON OF LATE YUGESHWAR RAM, RAILWAY COLONY, DARBHANGA, QR.NO.7/14 G. 8. RAJ KUMAR RAM, SON OF SHRI SUKHDEO MOCHI, RESIDENT OF MOHALLA-CHUNAMARI, P.O. LAXMI SAGAR, DISTRICT DARBHANGA. 9. KUNDAN KUMAR, SON OF LATE ASHOK RAM, RESIDENT OF VILLAGE AND P.O. GHOPPARDIHA, DISTRICT MADHUBANI, AT PRESENT DARBHANGA RAILWAY QR. NO.T/20. 10. BHARTENDU PD. KUSHWAHA, SON OF LATE NAGA MAHTO, RESIDENT OF VILLAGE AND P.O. BHARJDAWA, DISTRICT WEST CHAMPARAN. 11. CHANDRA PRAKASH KARN, SON OF LATE GOPI KRISHNA VERMA, RESIDENT OF VILLATGE BETAUNA, P.O. AND P.S. BENIPATTI, DISTRICT MADHUBANI. ….PETITIONERS Versus 1. THE UNION OF INDIA, THROUGH GENERAL MANAGER, EAST CENTRAL RAILWAY, HAJIPUR. 2. THE GENERAL MANAGER (P), EAST CENTRAL RAILWAY, HAZIPUR. 3. THE DIVISIONAL RAILWAY MANAGER, SAMASTIPUR DIVISION, EAST CENTRAL RAILWAY, SAMASTIPUR. 4. THE DIVISIONAL RAILWAY MANAGER (PERSONNEL) SAMASTIPUR. 5. THE DIVISIONAL COMMERCIAL MANAGER, SAMASTIPUR DIVISION, EAST CENTRAL RAILWAY, SAMASTIPUR. …RESPONDENTS ----------- 02. 17.05.2010 Heard Mr. Gautam Bose for the petitioner, and Mr. Ahsan Amannulah for the respondents. 2. This writ petition is directed against the order dated 8.3.2010, passed by the Central Administrative Tribunal, Patna Bench, in O.A.No.228 of 2009(Raj Kumar Poddar & Ors. Vs. The Union of India & Ors.), whereby the original application has been dismissed, and cancellation of the examination for in-house promotion to the post in question, has been upheld. - 2 - The learned Tribunal by the same order, disposed of O.A.No.179 of 2009 and O.A.No.544 of 2008, which is not the subject-matter of the present writ petition and is, therefore, beyond our consideration. This writ petition is confined to that part of the order of the learned Tribunal whereby O.A. No.228 of 2009 has been disposed of. 3. A brief statement of facts essential for disposal of the writ petition may be indicated. The petitioners are Category ‘D’ employees of the Indian Railways. 33 ½ % of Group ‘C’ post are reserved for the employees of Group ‘D’. The present selection process dealt with the issue relating to promotion to the next higher post of Booking Clerk in the pay-scale of Rs.3200-4900/-, and the Ticket Collector in the pay-scale of Rs.3050-4590/-. The selection process took place and was cancelled by the authorities on certain ground(s), leading to O.A.No.434 of 2008, which was deposed of by the Patna Bench of the Tribunal by its order dated 01.09.2008, whereby those petitioners/applicants were directed to submit an appropriate representation before the authorities which had to be disposed of by a reasoned order. The representation has since been considered and rejected by a reasoned order dated 22.09.2008 (Annexure-5,) on the ground that the minimum qualifying marks for unreserved category was 60% of marks obtained at the selection process, and 50% marks obtained at the selection process for the candidates of the reserved category. The advertisement erroneously mentioned 50% and 40% respectively. The second ground on the basis of which the order of cancellation has been reiterated by the learned authority is that the two posts of - 3 - Booking Clerk and Ticket Collector carried different pay-scales and, therefore, different selection process ought to have been held, but a common selection process has taken place. The petitioner challenged the same by preferring the present O.A. 228 of 2009, which has been rejected. 4. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears from the materials placed before us that 60% is the minimum qualifying marks to be obtained by a member of the unreserved category, and 50% is the minimum marks to be obtained by a member of the reserved category. The advertisement erroneously mentioned 50% and 40% respectively, and the examination took place. Law is well- settled that the terms and conditions, or the mode and manner of selection, cannot be altered after it has commenced. Reference may be made to a Division Bench judgment of the Himachal Pradesh High Court in the case of Anuj Gupta & Ors. Vs. State of Himachal Pradesh & Ors., reported in 1990 Vol. 6 Service Law Reporter, page 79, the relevant portion of which is reproduced hereinbelow for the facility of quick reference: 25. It has been held that when the prospectus for admission to Engineering Colleges laid down that the admission would be given on the basis of the results of 10+2 examinations, the same method can not subsequently be altered. It was held: The point arose for consideration before the Supreme Court in a case arising out of the Kerala Education Rules, in State of Kerala and others v. K.G.Madhavan Pillai and others, A.I.R. 1989 SC 49. In that case it was held that the applicant who had been granted sanction under Rule 2-A of Chapter 5 of the Kerala Education Rules for the opening of new schools or upgrading of existing schools are entitled to the continuance of the statutory procedural stream and to have their applications considered and - 4 - dealt with under Rules 9 and 11. Quoting with approval the passage from Wade extracted in the earlier part of this judgment the Supreme Court held that having granted sanction to the applicants under Rule 2-A(5) of the Kerala Education Rules, to open/upgrade the schools subject to satisfying the conditions under Rule 9 and obtaining a clearance under Rule 11, it is not open to the Government to stop the procedure mid-stream and cancel the order of sanction on the ground that there is no need for the establishment of new recognized schools, without giving the applicants an opportunity to put forward their case. The learned Advocate General submits that the concept of legitimate expectation demands only fairness in action and that is only an aspect of the principles of natural justice and not of promissory estoppel. He further submits that by mere change in the criteria for selection it can not be said that there is change in the policy depriving the petitioners of any of their rights. The petitioners had acquired no right of being selected but have only a right to apply for being selected and under the changed policy, they still have a right to apply and then complete with the other candidates. Even so, the change of policy after the issue of the prospectus was unfair to these candidates and can not be sustained in law. On the principle laid down in these decisions, were are clearly of the view that the petitioners having secured very high marks in the qualifying examination had a ‘legitimate expectation’ of selection for admission to the Engineering Courses on merit basis as held out in the prospectus issued in that behalf. Merit based on the result of PET cannot, therefore, be imposed on them without even giving them an opportunity of sustaining the principle held out in the prospectus. The superimposition of PET after the issue of the prospectus is for that reason unfair and is also unsustainable in law. A Division Bench of this Court had the occasion to follow the same in the case of Namita jayaswal vs. State of Bihar, reported in 1993(1) PLJR 391. The observation of the Supreme Court in the case of Maharashtra State Road Transport Corporation vs. Rajendra Bhimrao Mandave, reported in 2002(1) ATJ 541= (2001) - 5 - 10 S.C.C. 51, is to the same effect. We, therefore, agree with the decision taken by the learned authority in cancelling the examination, which has rightly been upheld by the Tribunal. 5. The second reason assigned for setting aside the selection process is that the two posts for which the in-house promotion is being sought to be made to the posts of Booking Clerk in the pay- scale of Rs.3200-4900/-, and Ticket Collector in the pay-scale of Rs.3050-4590/-. The learned authorities in their order dated 22.9.2008 (Annexure-5) have set aside the selection process on this ground also. The learned Tribunal has noticed this point but has really not adjudicated the same. Prima Facie the ground taken by the learned authorities does not appear to us to be convincing. We do not express ourselves on this point which, however, does not make any difference in the conclusion of our order. 6. In the result, this writ petition is dismissed. hr ( S. K. Katriar ) ( Kishore K. Mandal )