CIVIL WRIT JURISDICTION CASE No.1497 OF 2008 (In the matter of an application under Article 226 of the Constitution of India) PREM NATH RAM, S/o Late Baij Nath Ram, resident of Village Jaguli, PO Jaguli, District Ballia (U.P.), working as Station Manager, Railway, Shitalpur Railway Station, District Saran (Bihar) …. Petitioner Versus 1. The Union of India through General Manager, E C Railway, Hajipur 2. General Manager (Personnel), E C Railway, Hajipur 3. The Division Railway Manager, E C Railway, Sonepur 4. The Sr. D P O, E C Railway,Hajipur 5. The Sr. D O M, E C Railway, Sonepur…. Respondents with CWJC No.3166 of 2007 1. HARE KRISHNA KUMAR, Son of Late Ram Padarath, resident of Village Desari, PO & PS Desari, District Vaishali 2. Mahendra Rai, son of Late Mewalal Rai, resident of Village Mahanpur, PS Bidupur, District Vaishali….Petitioners Versus 1. THE UNION OF INDIA through General Manager, East Central Railway, Hajipur 2. General Manager (Personnel), E C Railway, Hajipur 3. The Division Railway Manager, E C Railway, Sonepur 4. The Sr. D P O, E C Railway,Sonepur 5. The Sr. D O M, E C Railway, Sonepur…. Respondents ******** For the Petitioners : Mr. GAJENDRA KUMAR JHA For the Respondents : Mr.MADHU PRASAD (in CWJC No.1497 of 2008) For the Respondents: Mr. Vindhyachal Singh (in CWJC No.3166 of 2007) P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR.KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S K Katriar, K K Mandal, J.J. Both the writ petitions deal with identical issues and are, therefore, being disposed of by a common judgment. We first deal with CWJC No. 1497 of 2008. This writ petition is directed against the order dated 29.8.2006 (Annexure 2), passed by the Central Administrative Tribunal, Patna Bench, Patna, in OA No.308 of 2006 (Prem Nath Ram vs. The Union of India & Others), whereby it has refused to interfere with the order dated 23.2.2006 (Annexure 9), passed by the General Manager of the Railways, and the follow-up action of 28.4.2006 (Annexure 10). 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. The petitioner joined the railway service as a Points 2 Man. He along with three others were considered for promotion to the next higher post of Assistant Station Master against 25% quota for the ranks to which the petitioner herein belonged. The four candidates were found fit for promotion, vide order dated 18.3.98 (Annexure 5). It is relevant to state that there were four vacancies and four persons mentioned therein including the petitioner herein were considered and found fit. Aggrieved by the order dated 18.3.98 (Annexure 5), an adversely affected employee preferred OA No.489 of 1999 (Jitendra Kumar Rai vs. The Union of India & Ors.), which was allowed by order dated 3.6.2005 (Annexure 11), whereby the Tribunal found serious errors in the selection process, and directed the concerned General Manager to enquire into the matter for the purpose of fresh selection process. It is relevant to state that the petitioner herein was respondent no.5 to OA No.489 of 1999, and the Tribunal had passed the order after due notice to him. Consequently, the General Manager considered the entire matter in depth, and passed the order dated 23.2.2006 (Annexure 9), setting aside the entire selection process, and directed to hold a fresh selection process after giving opportunity to all eligible candidates. By the consequential order dated 28.4.2006 (Annexure 10), the petitioner along with three others were reverted from their posts of Assistant Station Master to the substantive post of Points Man. The petitioner challenged the same by preferring the aforesaid OA No.308 of 2006, which has been rejected by the impugned order. The petitioner’s review application has also been rejected by the impugned order dated 15.2.2007 (Annexure 1), passed in RA No.46 of 2006. 3. While assailing the validity of the impugned order, learned counsel for the petitioner submits that, though he was impleaded as a party and was served with the notice of the proceeding in OA No.489 of 1999, the General Manager did not issue any notice to him. He also submits that no notice was issued to him before the said order of reversion dated 28.4.2006 (Annexure 10) was passed. In his submission, therefore, the orders marked Annexures 9 and 10, may be set aside, and the General Manager may be directed to reconsider the matter after affording adequate opportunity to present his case. 3 4. Mr. Vindhyachal Singh, learned counsel for the respondents has supported the impugned orders. He has relied on the judgment of Supreme Court in Md. Swalleh vs. 3rd Addl. District Judge [(1988)1 SCC 40. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. It is evident on a perusal of the said order dated 3.6.2005 (Annexure 11), passed in OA No.489 of 1999, that the Tribunal found serious fault(s) with the selection process. It further appears on a perusal of the order of the General Manager dated 23.2.2006 (Annexure 9), that he found that 24 persons had opted for consideration who are in the zone of consideration, notwithstanding which only four persons including the present petitioner were considered. This was perhaps the result, speaking euphemistically, of some kind of serious error on the part of the Zonal Manager who had changed the very criteria for the selection process at his own level. The General Manager in his exhaustive report found various other faults. 6. We have proceeded on the footing that the General Manager did not serve notice on the present petitioner. We are of the view that, in a matter like the present one which is of a general nature, and the selection process is afflicted by large-scale malaise, the principles of natural justice are not attracted, and individual notices need not be served to the persons who are likely to be adversely affected. We are reminded of the line of cases with respect to the school and university examinations where notices need not be served on individual candidates if it is a case of large-scale malaise, for example, mass copying. In that view of the matter, we are not inclined to set aside the orders marked Annexures-9 and 10, on the ground of non-issuance of notices to the petitioner and others. In our view the present case is covered by the aforesaid judgment. 7. On a perusal of the orders dated 23.2.2006 (Annexure 9) of the General Manager, the order dated 28.4.2006 (Annexure 10) reverting the petitioner, and the orders of the Tribunal, we are of the view that all the three orders are legally correct and valid orders which we uphold. Setting aside these orders would result in revival of an illegal order of promotion of the petitioner 4 to the post of Assistant Station Master, a situation we cannot countenance. Learned counsel for the respondents has rightly relied on the judgment of the Supreme Court in Md. Swalleh (supra). In the case of Mohd. Swalleh, the Supreme Court was faced with a situation where the District Judge had set aside the order of the first authority under the U.P. Urban Buildings (Regulations of Lettings, Rent and Eviction) Act, 1972. In exercise of the writ jurisdiction under Article 226 of the Constitution, the Allahabad High Court upheld the order of the District Judge even though it came to the conclusion that no appeal lay before the District Judge, because setting aside the order of the District Judge would have resulted in reviving and perpetuating a patently illegal order of the first authority under the Act. In other words, the District Judge had exercised a jurisdiction under the Act where none was vested in him, notwithstanding which the Allahabad High Court has upheld his order. In one sense, the order of the District Judge will be deemed in law to have been substituted by the order of the High Court on the writ petition on a thorough consideration of the entire matter. We are in no doubt that the present case is squarely covered by the judgment of the Supreme Court in the case of Md. Swalleh. One of us (S K Katriar, J.) had the occasion to apply the judgment in the case of Swalleh vs. 3rd Addl. District Judge, in the decision of this Court in Sri Prakash Singh vs. State of Bihar [2002(1) BLJR 600]. 8. In order to remedy the situation, we have afforded full opportunity to the petitioner to present his case to discredit the orders marked Annexures -9 and 10. He has not been able to advance any worthwhile argument before us in that behalf. We are thus convinced that the selection process suffered from serious errors, inasmuch as four out of twenty-four persons within the zone of consideration were alone considered and promoted. It is undoubtedly a case of large-scale malaise and local manipulation. It is evident on a plain reading of Annexures- 9 and 10 that the petitioner is within the zone of consideration. He shall also be considered. We are mindful of the position that the petitioner may be hit by age-bar as provided in the advertisement dated 3.2.97 (Annexure 4). We, therefore, direct that the age-bar as prescribed in Annexure-4 shall not be 5 applicable with respect to all the eligible candidates who were within the zone of consideration as per Annexure-4. 9. In the result, we do not find any merit in this writ petition. It is accordingly dismissed. In view of the facts and circumstances of the case that the issue related to promotion of the concerned persons including the present petitioner got enmeshed in litigation wasting a lot of time, the respondent authorities would be well advised to complete the selection process and announce the appointments/promotion without further loss of time. 8. We now take up CWJC No. 3166 of 2007. The petitioner in this case figures in the aforesaid order of promotion dated 18.3.98, and was consequently promoted to the post of Assistant Station Master. In view of the said order dated 3.6.2005, passed in OA No.489 of 1999, the same selection process was found to be erroneous, the General Manager was directed to enquire into the matter. The present petitioner was respondent no.4 in OA No.489 of 1999, and was duly noticed about the said proceeding. Aggrieved by the aforesaid order dated 23.2.2006 of the General Manager, and the consequential order of reversal dated 28.4.2006, the present petitioner preferred OA No.319 of 2006 (Annexure 1 hereto), which has been dismissed on grounds stated in the aforesaid order dated 29.8.2006, whereby OA No.308 of 2006 (Prem Nath Ram vs. The Union of India & Ors.), was rejected. For the reasons assigned and the observations made hereinabove, dismissing CWJC No.1497 of 2008, we dismiss the present CWJC No.3166 of 2007, also. 11. In the net result, CWJC No. 1497 of 2008, and CWJC No.3166 of 2007, are dismissed with the aforesaid observations. ( S K Katriar ) ( Kishore K Mandal ) Patna High Court, Patna The 9th of February 2010 NAFR/mrl. 6