IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL WRIT No. 782 of 1999 JITENDRA SINGH V/S C.A.T.JODHPUR & ORS Mr. MS SINGHVI, for the appellant / petitioner Mr. VIVEK SHRIMALI for Mr. RAVI BHANSALI, for the respondent Date of Order : 25.2.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI SANGEET LODHA,J. ORDER ----- This writ petition has been filed challenging the order of the Central Administrative Tribunal dated 18.11.98, whereby the petitioner's application has been dismissed. As per the impugned order Annexure-6, the original application was filed, particularly challenging the second supplementary test, held on 10.01.97, in respect of private respondent Harish Chand, hereafter to be referred as “private respondent”. The necessary facts that emerge from the impugned order are, that the selection/written test was held for promotion, to the post of Hindi Superintendent grade Rs.2000-3200 on 20.04.96. The result was declared on 28.05.96, and thereafter viva voce test was conducted on 02.07.96, and a panel of seven persons was declared on 13.11.96. It is alleged, that after first written test, supplementary test should not have been held beyond the prescribed period of six months, in terms of the relevant provisions comprised in Rule 223. Then, it is also contended, that in view of Circular dated 04.01.63, and another Circular dated 22.6.67, the private respondent could not be subjected to second supplementary test on 10.01.97. Learned Tribunal considered, that it is borne out from the representation of the private respondent dated 4.9.96, that he remained under treatment of a Railway Doctor from 18.4.96 to 22.4.96, and thereafter from 17.5.96 to 4.7.96, then it was found, that admittedly the private respondent was senior to the petitioner, the private respondent was called for written test on 20.4.96. He could not appear due to his sickness. Thereafter, the representation of the private respondent was considered by the competent authority, and he was allowed to appear in second supplementary test on 10.01.97, in terms of the Railway Board Circular dated 31.12.80. Since, the private respondent remained under the treatment of a Railway Doctor from 17.6.96 to 20.6.96, and from 20.6.96 to 28.6.96 remained under treatment of private Doctor, and was sent to the Railway Doctor for obtaining fitness certificate, but he had to remain under the treatment of the Railway Doctor 2 from 30.6.96 to 4.7.96, his representation was considered, and he was permitted to appear in second supplementary test. Thus, the application of the petitioner was dismissed. Learned counsel has invited our attention to the Railway Board Circular dated 31.12.80, and submitted, that from a bare reading thereof it is clear, that in these circumstances, second supplementary test could not be permitted, and therefore, whole exercise is bad. It was also contended, that even at the time of first ailment, the private respondent was given a sick memo under the signature of Chief Workshop Manager, which was bearing an endorsement in the red ink, about the incumbent being required to appear in the selection on 20.4.96, but then, the private respondent suppressed that memo, and obtained another memo from another person, then second time, he did not report to the Railway Doctor, and claims to have remained under treatment by private Doctor. In such circumstances, simply because the private respondent submitted representations R1 and R2, copies whereof have been produced before the learned Tribunal by the respondents, the private respondent could not be allowed to appear in second supplementary examination, in a light hearted manner, and thus the whole action is bad. The matter was taken up for hearing on 24.4.03, and it was observed on that day, that the respondents have to 3 produce waiting list prepared, and had earlier taken time successively to produce the record, and they were permitted to produce the record, if any, by the next date. It was further directed, that if the record is not produced, the Court shall presume, that the said record goes in favour of the petitioner, and an adverse inference will be drawn against the respondents. Admittedly, thereafter the record has not been produced. We have gone through the Circular dated 31.12.80, and find, that it inter alia provides, “the administration must ensure that the candidates are released for selection in time particularly for the supplementary examination. For the case of sickness indicated in sub-item (a), one supplementary examination should be sufficient to cater to such needs. There should be no incidence of any eligible staff remaining absent even after the chance of one supplementary examination is given. However, if any case comes to the Railway's notice, which has to be very rare, the C.P.O. should personally take a decision to hold the second supplementary examination on the merits of the case.” (Emphasis Supplied) In our view, this leaves no manner of doubt, that only one supplementary examination is contemplated to be sufficient to cater the needs of it, and further providing that second supplementary examination should be very rare, and that also can be ordered by the C.P.O. “personally taking a decision” “on the merits of the case”. This content of the Circular clearly means, that 4 the things are not to be taken very lightly, and the incumbent absenting in the main examination, or first supplementary examination, then, choosing to submit representation, should not at all be taken in a light hearted manner. Here, the representation submitted by the private respondent has been produced by the respondent before the learned Tribunal, as Annexures R1, copy whereof was made available for our perusal, show, that the representation is of September, 1996, giving details, that he was suffering from very high Blood Pressure, and therefore, could not appear in the examination, and the Railway Doctor advised him to take rest from 18.4.96 to 22.4.96, (Examination was scheduled to be held on 20.4.96), in the said representation, para No.3 reads, that vide letter referred, being dated 13.6.96, the supplementary examination was held on 24.6.96, wherein also he could not appear, as the Railway Doctor advised him to take rest from 17.5.96 to 04.7.96. Even at the cost of repetition, it may be observed that this representation is said to have been submitted in September 1996, and not immediately after recovery from the first ailment, wherefrom he is said to have recovered on 22.4.1996. That apart, as alleged, he is said to have recovered on 4.7.1996, and the letter dated 13.6.1996 is replied only in September 1996, since he did not request 5 for the first supplementary examination, after the main examination was over, wherein he did/could not appear, soon after his allegedly recovering, nor did he submit any medical certificate etc. for absence in the first examination held on 20.4.1996; we need not to go into the question of conduct of the petitioner, about his having submitted another sick memo. Likewise, the prayer has been made to be given second opportunity, in supplementary test, for which consent from CPO is necessary. The representation is addressed to the General Manager, then, Annexure-R-2 is forwarding letter, forwarding the representation by the Chief Workshop Manager to the General Manager, for sympathetical consideration, without making any comment about the ailment of the petitioner. Even with the representation Annexure-R-1, the petitioner has not been purported to annex any medical certificate. Be that as it may. It is in these circumstances, that it is not shown before us, by the production of the record, that the requisite decision was taken by the CPO, treating it as a very rare case, and that he took personal decision, on the merits of the case. In over view though the second supplementary examination is permissible, but on the very stringent constraints, and cannot be allowed to be taken so lightly, 6 as done by the authorities, and as upheld by the learned Tribunal. It may also be noticed, that the private respondent did not appear before the Tribunal, and also did not choose to appear before this Court, at least to satisfy the conscious of this Court, about the genuineness of the reasons, by which he absented, and about the circumstances, on the basis of which, the concerned authority may have taken the decision. In view of the above, we do not find ourselves able to sustain the order impugned (Annexure-6), passed by the learned Tribunal, being the order dated 18.11.98. Consequently, the writ petition is allowed, the order impugned of the Tribunal is set aside, and the second supplementary test, conducted for the private respondent, is quashed, with all consequence. ( SANGEET LODHA ),J. ( N P GUPTA ),J. /vij/ 7