WP/34976/2015 of Gangineni Nayudamma, Vs The Union of India, on 31 December 2015

COMMON ORDER:

These writ petitions are interconnected, hence, they were heardtogether and are being disposed of by this common order.

2. The present writ petitions relate to appointment of Halt Agent atGurazala Station under the South Central Railway represented by the SeniorDivisional Commercial Manger, Guntur. Petitioners in these writ petitions areaspirants for the said post. To avoid confusion, petitioners herein are referredto by names.

3. Petitioner (hereinafter referred to as ‘Irugula Subhashini’) in this writpetition states that her husband late Sembi Reddy was appointed as haltagent through a notification given by the South Central Railway in the year2010. She claims that her husband worked to the utmost satisfaction of theauthorities but, unfortunately, he died in an accident on 25.04.2010. It isstated that during the life time of her husband, the South Central Railwayissued a notification, which was questioned by him in WP.No.18914 of 2007and that he died pending the writ petition and she and her children are statedto have filed application to come on record as legal representatives.Subsequently, the Senior Divisional Commercial Manager issuedadvertisement No.1/2014 inviting applications for filing up of the post of HaltAgent at Gurazala Station. She also states that such appointments aregoverned by the guidelines issued by the Railway Board under CommercialCircular No.26/2005 dated 24.06.2005. She is stated to be one of theapplicants, who was called for interview. She states that as per therequirement under the guidelines it was necessary for the respondent railwayofficials to conduct lots among the candidates interviewed but withoutfollowing the said procedure, she is stated to have been forcibly discontinued and evicted on 09.08.2014.

4. Later, she states that she came to know of the appointment issued tothe seventh respondent (hereinafter referred to as ‘Gangineni Nayudamma’)vide proceedings of the Senior Divisional Commercial Manager, Gunturdated 08.08.2014 wherein Gangineni Nayudamma was appointed as HaltAgent for Gurazala Station. Questioning the same, the present writ petition isfiled, primarily, contending that the procedure adopted by the respondents iscontrary to the Railway Board’s Circular dated 24.06.2005, referred to above.

5. Notice before admission was ordered by this Court on 13.08.2014.Thereafter, counter affidavit was filed by the Senior Divisional CommercialManager and though Gangineni Nayudamma is represented though hercounsel, there is no counter affidavit filed on her behalf.

6. Gangineni Nayudamma is the petitioner herein, who states that shewas appointed as Halt Agent under provisional appointment orders dated05.08.2014 and on 08.08.2014 and she entered into an agreement on11.09.2014 and since then, continuing as halt agent. She states that theperiod for which she was appointed was for five years and claims that shehas been running the halt agency successfully and without any blemishdischarging her duties.

She is, however, aggrieved by the show cause notice issued to her by theSenior Divisional Commercial Manager proposing to terminate her as haltagent and by order dated 19.10.2015 her appointment was cancelled basedupon the procedural lapses pointed out by the Railway Board’s proceedingsin selection of candidates, as the procedure of draw of lots was not followed.The same is, therefore, questioned in this writ petition, inter alia, on theground that her appointment was already subjudice and questioned and ispending consideration in WP.No.23147 of 2014 and WP.No.23148 of 2014,

7. Respondent railways filed counter affidavit in this writ petition throughtheir standing counsel

8. While the above two writ petitions are pending, the respondent railwaysissued another advertisement No.2/2015 dated 26.10.2015 seeking toappoint Halt Agent at Gurazala Gate and Penumarru Halts. Questioning thesaid action, Irugula Subhashini, petitioner in WP.No.23147 of 2014, has filedthe present writ petition.

9. The main contention raised by Irugula Subhashini in this writ petition isthat while WP.Nos.23147 of 2014 and 34976 of 2015 are pendingconsideration before this Court, initiating fresh process by the impugnedadvertisement to appoint halt agents would frustrate both the writ petitionsinasmuch as that WP.No.23147 of 2014 not only challenges the appointmentof Gangineni Nayudamma but also seeks consequential direction tocomplete the selection process in terms of the Commercial CircularNo.26/2005. The respondent railways filed counter affidavit in this writ petitionalso.

10. It would be evident from the pleadings of the petitioners in these writpetitions that the procedure adopted by the Senior Divisional CommercialManager, while appointing Gangineni Nayudamma in his proceedings dated05.08.2014 and further proceedings dated 08.08.2014, is questioned,primarily, on the ground that it is contrary to the circular of the RailwayBoard. Hence, at this stage, it is relevant to notice the circular of the railwayboard.

11. The said Commercial Circular No.26/2005 issued by the Ministry ofRailways dated 24.06.2005 states that under previous letters of the Railway Board various guidelines for opening of halt station, closure of uneconomichalt stations, appointment of halt contractors etc. were issued. A committeewas constituted by the Ministry of Railways to review the guidelinespertaining to award of contract of halt stations and based on therecommendations of the committee and with the approval of the competentauthority following amendments are made. So far as appointment of haltcontractors is concerned, the following para is relevant:

“IV. Appointment of Halt Contractors:

Para IV(a)(1) of Board’s letter No.99/TGIV/Halts/Policy dated 17.5.99– No Change.

In continuation to Para IV(a)(2) of Board’s letterNo.99/TGIV/Halts/Policy dated 17.5.99 the following may be added.

Minimum educational qualification should be at least 10[th] standardpass for new contractors.

Para IV(a)(3) of Board’s letter No.99/TGIV/Halts/Policy dated 17.5.99which was modified vide Board’s letter of even number dated 8.699may now read as under:

A Selection Committee of Sr. Scale Officers from Commercial,Finance and Operating Deptts shall scrutinize and shortlist theeligible offers. Selection will be by a draw of lots, drawn by any childif there is more than one suitable candidate.

All the eligible candidates should be advised the date, time andvenue of the draw though Courier/Regd. AD so that they may attendthe draw if they so desire.”

12. Respondent railways through their counter affidavit in WP.No.23147 of2014 have defended the order of appointment of Gangineni Nayudamma asHalt Agent under their proceedings dated 08.08.2014. It is stated that 14applicants including Irugula Subhashini were called for interview, which wasfixed on 23.07.2014 and signatures of 13 applicants, who had attended theinterview, were obtained. The Divisional Operations Manager (Co-ordination)had conducted the interview and there was no violation of rules andregulations. The committee after scrutinizing/short listing the applicationsrecommended the name of Gangineni Nayudamma as halt agent atGurazala Gate Halt and the recommendation was accepted by the DivisionalRailway Manager. The proceedings of the said committee is also annexed to the counter affidavit, which shows that total 19 applications were receivedand on finding that 5 applicants are not eligible, the committee, therefore,invited 13 candidates and had adopted realistic and scientific method forshort listing and awarding the marks and as only one suitable candidatesecured highest marks and fulfilled all the parameters, the committee was ofthe opinion that the application of Gangineni Nayudamma be recommendedfor consideration for appointment as Halt Agent at Gurazala Gate Halt.Accordingly, the competent authority accepted the recommendation andappointed Gangineni Nayudamma as halt agent.

13. Curiously, however, the said Gangineni Nayudamma’s appointment isterminated as per the impugned order in WP.No.34976 of 2015. Therespondent railways filed a counter affidavit in that writ petition also.

14. The counter affidavit states that on the complaint of the petitioner inWP.No.23147 of 2014, a Vigilance Enquiry was ordered and the procedureadopted by the committee in awarding marks while conducting interviewinstead of selecting the candidate by draw of lots was found to be in deviationof the Railway Board’s Circular.

Hence, as per the recommendations of the Vigilance Department, a show cause notice was given to Gangineni Nayudamma on 15.06.2015.Gangineni Nayudamma made a representation to the said show causenotice on 22.06.2015 and after duly considering the same, the appointment ofGangineni Nayudamma was terminated under the impugned proceedingsdated 19.10.2015. It is stated that Gangineni Nayudamma ceases to be haltagent from 23/24.10.2014 and halt agency is being operated departmentallywith effect from 24.10.2015.

15. It would, thus, be evident that the very same respondents, who defended their action in appointing Gangineni Nayudamma inWP.No.23147 of 2014, have also contended in the counter affidavits filed inthe subsequent two writ petitions justifying their action in terminating Gangineni Nayudamma. Hence, learned standing counsel appearing for therespondent railways was required to obtain the records and explain thecontradiction in the stand of the railways.

16. Learned counsel appearing for Gangineni Nayudamma contends thather appointment as halt agent was in accordance with the circular inasmuchthe respondents have followed the circular and question of draw of lots didnot arise, as Gangineni Nayudamma was alone found to have secured thehighest marks. Learned counsel submits that the criteria adopted by thecommittee cannot be said to be arbitrary inasmuch they have interviewedthe shortlisted candidates and on the basis of general parameters adoptedby the committee, they awarded marks wherein Gangineni Nayudamma,who had secured highest marks, was, accordingly, recommended andappointed. Learned counsel, therefore, submits that the circular of theRailway Board is not violated and the recommendations of the VigilanceDepartment, which are followed by the respondents in issuing the showcause notice and terminating Gangineni Nayudamma is equally vitiated andcontends that Gangineni Nayudamma, having been appointed as percircular, is entitled to continue for five years.

17. Per contra, learned counsel for petitioner, Irugula Subhashini, in WP.Nos.23147 of 2014 and 35823 of 2015, contends that the RailwayBoard’s circular does not leave any room for doubt and clearly stipulates thatthe selection committee shall select the candidate among the shortlistedcandidates by draw of lots. Hence, the procedure of awarding marks to theeligible candidates by adopting any criteria is clearly violative of the saidcircular.

18. Learned standing counsel for the railways, however, had on oneroustask of justifying the contrary counter affidavits on behalf of railways in thesewrit petitions, as referred to above. Learned counsel, however, fairlycontended that the examination of the record and the procedure followed bythe committee has clearly shown that the criteria adopted by the committee in awarding marks was clearly unscientific inasmuch as the committeeawarded marks on educational qualification, nativity, police clearance,financial status, age factor, physical fitness, appearance, behaviormannerism and general knowledge, which, in any case, was not provided forby the circular of the Railway Board and there was no other method availableto the committee except conducing draw of lots among the eligiblecandidates. Learned standing counsel, therefore, submitted that since thiswas noticed only after the vigilance report and recommendations,appropriate steps were taken by the respondent railways to rectify themistake and in that regard, show cause notice was given to GangineniNayudamma and after considering her representation, the appointment of Gangineni Nayudamma was terminated.

Learned standing counsel also justified the subsequent action of the railwaysin issuing a further advertisement No.2/2015 dated 29.10.2015 for appointingnew halt agent.

19. During hearing of these writ petitions, this Court was of the opinion thatthe result in WP.No.23147 of 2014 and WP.No.35823 of 2015 would have abearing on the appointment of Gangineni Nayudamma as halt agent viz.either her appointment would be confirmed or termination would be upheldand in either situation, fresh notification issued under advertisement No.2/2015 cannot besustained, as that would frustrate both the aforesaid writ petitions.

20. Faced with the aforesaid situation, therefore, learned standing counselhas taken fresh instructions and submitted that the respondent railwayswould not press and not proceed further with reference to advertisementNo.2/2015 so far as Gurazala Halt Station is concerned and offered tocommence the process of appointing halt agent for Gurazala Station fromthe stage at which the error was committed by the committee. Learnedstanding counsel, therefore, fairly submitted that the South Central Railwaywould cancel the advertisement No.2/2015 and would proceed from the stage onwards where the committee awarded marked on criteria referred toabove.

21. The Senior Divisional Commercial Manager, Guntur, specificallystates in para 10 of the counter affidavit in WP.No.35823 of 2015, as follows:

“10. I submit that however, at the time of arguments on 04.11.2015,when the matters were argued in W.P.No.23147/2014,W.P.No.23148/2014, W.P.No.34036/2015 and W.P.No.35823/2015and another matter the Hon’ble court clearly observed that theprocedure followed earlier is contrary to guidelines and the counteraffidavit filed earlier is contra to present stand taken by Respondent 3s now prepared to follow the earlier and the present policy of drawinglots among the applicants by lottery and finalize the same. Thenotification issued now i.e. 26.10.2015 will not be given effect to.”

22. Learned counsel appearing for Irugula Subhashini, however,expressed no objection for the aforesaid course to be followed, while Gangineni Nayudamma, through her counsel, defended herappointment.

23. I have considered the contentions on behalf of the contestingpetitioners as well as the respondent railways. It is well settled that thedirections given by the Railway Board are general in nature and are bindingon all the Railways in India. The Railway Board’s circular, extracted above,therefore, is inviolable and is required to be followed by all the railways.Applying the mandate in the said circular, which is highlighted, as above, it isevident that awarding of marks on the basis of physical appearance,mannerism, financial status etc. is clearly not envisaged under the circularand all eligible shortlisted candidates were required to be put to the procedureof draw of lots and no other criteria to eliminate any one of them ispermissible under the said circular. In view of that, therefore, in my view, itwould be just and appropriate to adopt the said course and direct therespondent railways to conduct draw of lots among all eligible 13 candidateswhose candidature was considered in pursuance of advertisementNo.1/2014 including the contesting petitioners herein viz. Irugula Subhashini as well as Gangineni Nayudamma by draw of lots and complete theselection process and appoint the successful candidate as halt agent atGurazala station. Subsequent advertisement No.2/2015, issued by therespondent railways, shall not be proceeded with any further and shall standcancelled to the extent of Gurazala Station.

In the result, WP.No.23147 of 2014 is allowed; WP.No.34976 of 2015is dismissed and WP.No.35823 of 2015 is disposed of.

As a sequel, the miscellaneous applications, if any, shall stand closed. Thereshall be no order as to costs.

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VILAS V. AFZULPURKAR, J

December 31, 2015/DSK