/ 1/ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7010 OF 2003 Vijay Singh Chandrawat ...Petitioner V/s. Union of India & Anr. ...Respondents Mr.Rahul G. Wadia for Petitioner. Mr.T.J. Padian for Respondents. CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. DATED : 18th MARCH, 2008. P.C.:- 1. By this Petition, the Petitioner is challenging the judgment and order dated 27/08/2003 in Original Application No.303 of 2003 as also impugned order dated 22/07/2002 passed by the Respondents. 2. Brief facts, in nutshell, are as under:- The Petitioner was appointed in 1996 as Goods Driver in the Indian Railways. On 10/01/2002, DRM(P)'s office issued a certificate to the Petitioner certifying that the Petitioner has three years Foot Plate / 2/ Experience. On 15/01/2002, the Respondents issued notification calling applications for selection to one post of Loco Inspector in the scale of Rs.6500-10500(RSRP). The Petitioner alongwith others applied for the selection to the post of Loco Inspector. On 25/01/2002, the Respondents issued a certificate to the Petitioner stating that since August, 1996, the Petitioner was working in lieu of regular Loco Inspector(HQRs) in the existence vacancy to assist AME(Fuel), Dy.CME(P&F), CME (O&C) on Foot Plate Inspection/Monitoring etc. and also monitoring/counseling drivers/ Foot Plate Inspection individually as per instructions of Dy. CME (P&F) from time to time to check the performances of the drivers on mechanical/technical and fuel efficient driving techniques. It is case of the Petitioner that the period from August, 1996 to July, 1999, he was treated as Foot Plate Experience and he was already working as Loco Inspector (in lieu of regular Loco Inspector). On 14/03/2002, the Respondents issued a list of candidates, who were eligible for the selection to the post of Loco Inspector and name of the Petitioner was shown as one of the eligible candidates. On 09/04/2002, a written test to the post of Loco Inspector was conducted. The Petitioner appeared in the written test and was finally declared to have passed in the written test on 16/04/2002 alongwith three other candidates and therefore, he became eligible to / 3/ appear for Viva Voce test. 3. On 21/05/2002, the Petitioner was invited for Viva Voce test which was fixed on 05/06/2002. The test was held on 06/06/2002 and the Petitioner did very well in the Viva Voce test. 4. The Respondents, however, cancelled entire selection on 22/07/2002 without giving any intimation to the Petitioner or assigning any reason why said selection was cancelled. The Petitioner filed Original Application No.303/2003 before the Central Administrative Tribunal, Mumbai. The Central Administrative Tribunal vide judgment and order dated 27/08/2003 rejected the Original Application filed by the Petitioner. Being aggrieved by the aforesaid order, the Petitioner has filed this Writ Petition under Article 226 and 227 of the Constitution of India. 5. It is submitted by the learned counsel appearing on behalf of the Petitioner that the Petitioner was given a certificate dated 25/01/2002 by the Respondents that he was eligible to appear for the post of Loco Inspector and that he had completed three years' Foot Plate experience which was one of the eligibility criteria for the post of Loco Inspector. He submitted that even on the earlier occasion prior to 2002 also the Petitioner had appeared for the said post. However, at that time, he did / 4/ not qualify though he was allowed to appear in the written test. He submitted that on this occasion he successfully passed the written test on 16/04/2002 and he was also invited to appear in the Viva Voce test. It was submitted that the Respondents could not have cancelled his selection by alleging that procedure which was followed for selection was not proper. It is an admitted position that other three candidates had not passed viva Voce test and as such the Petitioner was merely selected. Learned counsel for the Petitioner, however, submitted that even thereafter from time to time, the Petitioner's name has been shown in the list of persons who were eligible to appear for the post of Loco Inspector. In support of his submissions, he relied on the judgment of the Apex Court in the case of Shri Krishan V/s. The Kurukshetra University, Kurukshetra, reported in AIR 1976 SC 376 and also the Division Bench judgment of this Court in the case of Arshdeep d/o Gurudeo Singh Puri V/s. Maharashtra State Board of Secondary and Higher Secondary Education, Nagpur Divisional Board reported in 1991 Mh.L.J. 304. 6. The learned counsel for the Respondents, on the other hand, submitted that the Petitioner did not have a requisite eligibility criteria of three years' actual Foot Plate experience which was necessary for being / 5/ selected to the post of Loco Inspector. He submitted that the inquiry was made after selection procedure was over and it was found that the Petitioner did not possess said qualification and therefore, selection process was set aside. He submitted that the Petitioner did not have any right to the post merely because he had appeared for the interview and even if his name has appeared in the select list, he did not get right of being appointed on the basis of said select list. He relied on the judgment of the Apex Court in the case of Union Territory of Chandigarh V/s. Dilbagh Singh and Ors. reported in (1993) 1 SCC 154 . 7. We are unable to accept the submissions made by the learned counsel for the Respondents. It is an admitted position that the Respondents themselves had issued a certificate to the Petitioner on 25/01/2002 certifying that he had three years Foot Plate Experience. The Petitioner was permitted to appear in the written test and thereafter, he was invited for the interview. At no point of time, show cause notice was issued to the Petitioner stating therein that he did not possess three years' Foot Plate Experience. Finding of the internal inquiry made by the Respondents also was not made available to the Petitioner. The Certificate dated 25/01/2002 also was not withdrawn. Therefore, the / 6/ Respondents could not have arbitrarily cancelled the selection for the post of Loco Inspector by the impugned order dated 22/07/2002. In the order dated 22/07/2002 what is mentioned is as under:- “Sub: Selection for the post of Loco Inspector in Gr.Rs.6500-10500(RSRP) in COM's Office, CSTM. The selection for the post of Loco Inspector Gr.6500-10500(RSRP) in COM's Office, CSTM, processed vide Notification No.HPB/661/T/B/Loco/ COM dated 15-1-2001, has now been cancelled due to procedural lapses noticed. The concerned employees should be informed accordingly. This has the approval of the Competent Authority.” 8. What has to be noted here is that the Respondents did not inform the Petitioner that he did not possess three years Foot Plate Experience. It is obvious that the Petitioner was the only person who was selected since no other person was issued an appointment letter. It is not mentioned what was the procedural lapses noticed due to which selection to the post of Loco Inspector was cancelled. It is a matter of record that the Petitioner had earlier applied for the post of Loco Inspector and was made to appear for the said selection to the post of Loco Inspector. / 7/ However, he failed to qualify in the said examination. Therefore, reason which is given by the Respondents in their affidavit before the Tribunal and before this Court that the Petitioner did not possess eligibility criteria of three years' Foot Plate Experience is clearly an after-thought. If they had so felt that he did not possess said qualification, they would have withdrawn the certificate which was issued to the Petitioner and appointed next person who was selected. Another fact which has to be noted here is that even subsequently, the Petitioner's name has appeared in the selection list in the list of 31/10/2006 which is at serial No.53, which shows the list of employees who have completed three years Foot Plate service. Even by letter dated 27/02/2008 Dy. CME(P&F) HQ COM's office CSTM has given a certificate that the Petitioner was performing duties of Loco Inspector HQ. from August, 1996 to July, 1999 as certified by letter dated 25/01/2002. 9. Submissions made by the learned counsel for the Respondents that the selection was cancelled on account of procedural lapses, cannot be accepted. 10. Judgment on which reliance is placed by the Respondents, in the case of Union Territory of Chandigarh V/s. Dilbagh Singh and Ors. / 8/ (supra) will not apply to the facts of the present case. In the said case, it was observed that the select list was prepared in unfair and injudicious manner and under these circumstances, select list was cancelled. In the present case, the Petitioner is not seeking order that he should be appointed pursuant to his name being shown in the select list. The Petitioner is challenging the cancellation of the selection by the Respondents. In the said case, the Apex Court has observed that the select list was not prepared in fair and in judicious manner and therefore, it was cancelled. Ratio of the said judgment will not apply to the facts of the present case. Therefore, there is substance in the submissions made by the learned counsel for the Petitioner. Ratio of the judgment in the case of Shri Krishan V/s. The Kurukshetra University(supra) will apply to the facts of the present case. In the said case, the Petitioner was allowed to participate in LLB(I) examination and also in the subsequent examination. His result was withdrawn on the ground that he had failed to attend the prescribed course of lectures and he was not qualified for the examination. The Apex Court had held that once the candidate is allowed to appear in the examination, Board has no jurisdiction to cancel his candidature of that candidate. In the present case, the Respondents had issued a certificate to the Petitioner and pursuant to the said certificate being issued, he was / 9/ permitted to appear for the written test. After having successfully passed in the written test, he was invited for the interview. That being a position, the Respondents could not have cancelled the select list. The Tribunal has totally ignored this aspect of the matter and in fact, has not taken into consideration this specific case of the Petitioner. The Tribunal has, therefore, committed error of law which is apparent on the face of record. Impugned order passed by the Tribunal is liable to be set aside. Writ Petition is allowed and Rule is made absolute in terms of prayer clause(a) and (b). In the circumstances, there shall be no order as to costs. ( D.K. DESHMUKH, J.) (V.M. KANADE, J.)