ORDER
K.N.K. Karthiayani, Member (A)
1. The applicants in both the O.As are working as Personnel Inspectors Grade-II in the pay scale of Rs. 5500-9000. Their next promotion to the post of Personnel Inspector Grade I in the pay scale of Rs. 6500-10500. The applicants are challenging the recruitment process initiated by the Railway Recruitment Board, Bangalore, for the post of Personnel Inspector Grade-I through Employment Notice No. 2/ 2004 dated 20.11.2004. As the applicants in both the O.As are seeking the same reliefs and the facts in both the O.As are the same, they were heard together.
2. The brief facts of the case as submitted in the O.As are: The Railway Board had vide letter dated 9.10.2003 issued a restructuring order for certain Group ‘C & ‘D’ cadres (Annexure-Al). As per cl. 11 of the said order, the cadre of Personnel Inspector was restructured and the vacancies arising on or after the cut off date i.e. 1.11.2003 were to be filled up through direct recruitment in the manner indicated in cl. 11.2. Consequently, the Railway Recruitment Board issued employment notice No. 2/2004 dated 20.11.2004 notifying recruitment by direct selection to the post of Personnel Inspector Grade-I. (Annexure-A2) Thereafter, examination was held for filling up the posts in the cadre of Personnel Inspector Grade-I which were reserved for direct recruitment. The Railway Board reconsidered the matter of cadre restructuring in respect of Personnel Inspectors in consultation with the staff side in PNM-NFIR (Permanent Negotiating Machinery -National Federation of Indian Railway) and PNM- AIRF (Permanent Negotiating Machinery of Indian Railwaymen Federation) and DC-JCM (Joint Consultative Machinery). Vide Railway Board’s letter dated 17.6.2005, the mode of filling up of the post of Personnel Inspector Grade-I by direct recruitment was modified to the effect that instead of filling up 20% of the posts by direct recruitment, they would be filled by conducting a LDCE (Limited Departmental Competitive Examination) from in service employees who possess the necessary qualification. Copy of the letter dated 11.7.2005 circulating Railway Board’s letter dated 17.6.2005 is produced as Annexure-A3. It is the contention of the applicants that in view of Annexure-A3, it is not open for the Railway Recruitment Board to select candidates by direct recruitment from open market. However, the Railway Recruitment Board was proceeding ahead to fill up 20% of the posts in Personnel Inspector Grade-I by direct recruitment from open market as per the employment notice No. 2/2004. The Railway Recruitment Board had fixed the date as 10.10.2005 for verification of documents and Counselling for 4 candidates to be inducted from open market in pursuance of employment notice No. 2/2004. According to the applicants, after issue of Annexure-A3, posts to the extent of 20% in Personnel Inspector Grade-I are to be filled up only through LDCE and not from the open market. The applicants have therefore, sought the relief of quashing the entire selection process and issue of appropriate direction to fill up the posts strictly in compliance with the instruction in Annexure-A3. They have also sought an interim relief of staying the selection process of the Railway Recruitment Board, Bangalore, for the post of Personnel Inspector Grade- I-through the employment notice at Annexure-Al.
3. In O. A. No. 427/2005, the applicants have taken an additional ground to the grounds submitted in O. A. 392/2005, that as per the restructuring order, the revised method of filling up of vacancies would be applicable only to normal vacancies that would have arisen on or after the cut off date, i.e. 1.11.2003. This fact was further clarified by the Railway Board vide their letter dated 17.8.2004. However, the number of vacancies notified as per employment notice No. 2/2004 is based on the sanctioned strength including the work-charged post and not in respect of the normal vacancies that had arisen subsequent to the cut off date, i.e. 1.11.2003.
4. The official respondents, in their reply statement have denied that there is any irregularity or illegality in resorting to direct recruitment for certain number of posts in Personnel Inspector Grade I Cadre. They have submitted that the instructions of the Railway Board as per Annexure-A3 are only prospective in nature and as on the date of issue employment notice dated 20.11.2004 at Annexure-A2 and on the date of written examination (12.6.2005), the instructions in Annexure-A3 had not come into force. It is admitted that the results of the examination were not announced before the issue of Annexure-A3. The Railway Recruitment Board had sought a clarification from the Railway Board as to whether the instructions given in the letter dated 17.6.2005 (Annexure-3) could be complied with only for future recruitments (Annexure-Rl). The Railway Board clarified the matter by letter dated 29.8.2005 (Annexure-R2) stating that the Railway Recruitment Board could go ahead with the selection or the post of Personal Inspect or Grade I as per employment notice No. 2/2004. The respondents have pointed out that the applicants have not challenged the letters at Annexure-RI & R2 and as these letters remain intact, they are binding on the respondents. To counter the ground taken in O.A. 427/2005, regarding calculation of the number of vacancies as notified in Annexure-A2, in their reply, the respondents have stated that though initially 5 posts were notified, it was reduced to 4 posts subsequently. The direct recruitment quota in the post of Personnel Inspector Grade I is for 20% of the posts in that grade. The respondents have brought out a detailed calculation of the 20% of the posts (22 in number, after restructuring) and have tried to establish that notification of 4 vacancies as per Annexure-A2 was correct. In their objection statement the respondents have also brought to our notice the fact that one of the applicants in O.A. No. 427/2005 i. e., applicant No. 5, Sri Jayakumar was one of the candidates who participated in the selection process in pursuance of Annexure-A2, without raising any objection, particularly, to the calculation of vacancies. The applicant after finding that he has not been successful, cannot now challenge the whole process.
5. The private respondents have filed separate objection statements in both the O.As. They have taken the following main contention in the objection statement:
(i) The applicants should have filed the O.A. immediately after the issue of employment notice No. 2/2004 at Annexure-A2. They waited till verification of documents and Counselling for the 4 candidates selected. In the matters of selection and appointment, the aggrieved person should immediately challenge the orders affecting them. The O.As filed by the applicants should be rejected on the ground of delay and laches.
(ii) The applicants have not challenged the Railway Board’s order dated 9.10.2003. The notification issued by the Railway Recruitment Board in employment notice No. 2/2004 is in accordance with law and the Railway Board’s letter dated 9.10.2003.
(iii) The main contention of the applicants in the O.A. is that the method of filling up of the post of Personnel Inspector Grade I was modified as per circular dated 11.7.2005. However, the letter dated 11.7.2005 issued by the Railway Board is only a circular issued under Article 162 of the Constitution of India and the assent of the President has not been obtained while issuing the above mentioned circular. The restructuring has been done after taking assent from President of India and hence it should be presumed that it has been issued by the President in exercise of the powers vested under Article 309 of the Constitution of India. Therefore, the circular dated 11.7.2005 cannot override the statutory rules which have been issued in exercise of the powers under Article 309 of the Constitution of India. Resultantly, the letter dated 11.7.2005 which is mainly relied upon by the applicant cannot be enforced in a Court of law.
(iv) The contention of the applicants that the letter dated 11.7.2005 has retrospective effect i.e., the method of recruitment has been modified with retrospective effect from 9.10.2003 is unsustainable both in law and facts. The letter dated 11.7.2005 can only have prospective effect. “Before the issue of letter dated 11.7.2005, the Railway Recruitment Board had conducted the examinations, results were published and a short list of selected candidates was also published on 8.9.2005”, Further, the Ministry of Railway in their letter dated 29.8.2005 has directed the Chairman of the Railway Recruitment Board, Bangalore, to go ahead with the selection for the post of Personnel Inspector Grade I as per the employment notice No. 2/ 2004. In fact, there was no prohibition from the Ministry of Railways to stop the selection in pursuance of the employment notice No. 2/2004 dated 20,11.2004. In pursuance of the clarification letter from the Ministry of Railways, New Delhi, the Railway Recruitment Board has completed the selection process much before the letter dated 11.7.2005. As the letter dated 11.7.2005 is only prospective in nature, it can be applied only for future recruitments and future vacancies. Therefore, the employment notice No. 2/ 2004 is unassailable.
(v) The contention of the applicants that their interests are affected by the selection as per employment notice No. 2/2004 is untenable, for if the applicants are eligible, their cases for promotion will be considered.
(vi) Regarding the contention raised in paragraph 5.10 of O.A. 427/2005, it is stated that the indent has been placed for the entire sanctioned strength of Personnel Inspector Grade I. It is baseless to contend that the restructuring and filling up of posts by direct recruits are applicable to normal vacancies that arose after 1.11.2003 and cannot be based on sanctioned strength of the cadre.
6. The applicants have filed rejoinder and also M.A. No. 224/2006 in O.A. No. 392/ 2005 and M.A. No. 225/2006 in O.A. No. 427/2005 to amend the reliefs by adding prayer to quash the letters at Annexure-R1 & R2.
7. We have perused the pleadings and heard Counsel from sides. On 24.11.2006, Shri K. Subba Rao, Sr. Advocate argued the case for private respondents assisted by Shri A. Vishwanatha Bhat.
8. As there was some ambiguity in the reply filed by the official respondents in O.A. 427/2005 regarding the calculation of vacancies for direct recruitment, we had asked the Counsel for official respondents to file a statement showing the total number of posts and vacancies that existed prior to and immediately after restructuring in the Cadre of Personnel Inspector Grade I. Accordingly, Shri N.S. Prasad, Sr. Railway Standing Counsel in O.A. 427/2005 has filed a statement showing the actual strength and vacancies in different grades of Personnel Inspectors as on 31.10.2003 (before the implementation of restructuring orders on 1.11.2003) and as on 2.11.2003 (after implementing the restructuring orders on 1.11.2003). As per the said statement, the sanctioned strength of Personnel Inspector Grade I before restructuring was 17+1 (work charged) and it was increased to 22+1 (work charged) on 1.11.2003 when the restructuring was effected. As on 2.11.2003, there were 19 persons in position against the 22 posts. The 3 vacancies which could not be filled up were reserved for SC&ST and there were no eligible officials from the reserved category. Thus, the contention of the official respondents is that all the vacancies that arose due to restructuring have been filled by promoting the eligible officials from Personnel Inspector Grade II and the proposal for direct recruitment was only in respect of 20% of the posts and the vacancies that were anticipated from 2.11.2003 were proposed to be filled up by direct recruitment so that the required satisfaction of 20% of the posts to be filled up by direct recruits is achieved. However, in reply to para 4.8 of the O.A, the official respondents have calculated the number of posts for direct recruitment as 20% of 22+1 i.e. 4.6, rounded off to 5. This is obviously wrong. The percentage is to be calculated on the strength of the cadre prior/to restructuring which should be 17 [or 17+1 (work charged)?]. Shri N.S. Prasad offered to show us the method of calculation of vacancies by the respondents; but the Court does not have to go into the formula or detailed arithmetic calculation of vacancies to see whether it would be 5 or 4 or 3, as this was not a matter under challenge in the O.As; the contention raised by the applicants being that the direct recruitment could be resorted to 20% of the vacancies and not to 20% of the posts, we have not examined the details of calculation. We have however, got ourselves satisfied that the instructions in para-11 and 11.2 of Railway board’s letter dated 9.10.2003 as modified by letter dated 17.8.2004 (Annexure-A1) are not violated.
9. Apparently, there is a bit of confusion as the respondents have used the words “posts” and “vacancies” alternatively in clause 11 and 11.2 of the circular dated 9.10.2003 (para-11 was subsequently modified by letter dated 17.8.2004, but in the modified letter also the word “vacancies” appears). The Counsel for the applicants invited our attention to clause 15 of Railway Board’s order dated 9.10.2003. It reads:- “Direct recruitment percentages will not be applicable to the additional posts arising out of these restructuring orders as on the cut-off date. The direct recruitment percentage will apply for normal vacancies arising on or after the date following the cut-off date. Also the direct recruitment quota as on the date preceding to cut-off date will be maintained.” The Counsel argued that the second sentence becomes otiose, if the percentage is calculated on the number of posts existing before the cut-off date. We agree that the use of the words “posts” and “vacancies” in the same clause in consecutive sentences gives rise to some difficulty in understanding the real intention conveyed in the rules.
9.1 A Division Bench of this Tribunal (of which I was a member) had an occasion to interpret the content of certain provisions in the rules, in the face of certain inconsistency in paragraph-4 of the letter of Railway Board dated 9.10.2003 and its subsequent modification dated 6.1.2004, while disposing of O.A. 230/2005 (date of judgment 28.4.2006). We quote para 9 and 10 from the above judgment:
9. Here comes the application of the rule of harmonious construction” stated by a Constitution bench of the Supreme Court in Venkatarama Devaru v. State of Mysore where the rule is explained thus:
The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect could be given to both.
In Madanlal Fakirchand Dudhediya v. Shree Changdeo Sugar Mills Limited and Ors. the Supreme Court referred to the relevant rules of construction thus:
….The first rule of construction which is elementary, is that the words used in the section must be given their plain grammatical meaning. Since we are dealing with two sub-sections of Section 76, It is necessary that the said two sub-sections must be construed as a whole “each portion throwing light, if need be, on the rest.” The two sub-sections must be read as parts of an integral whole and as being interdependent; an attempt should be made in construing them to reconcile them if it is reasonably possible to do so, and to avoid repugnancy. If repugnancy cannot possible be avoided, then a question may arise as to which of the two should prevail. But that question can arise only if repugnancy cannot be avoided.
Again a Constitution Bench of the Supreme Court in Calcutta Gas Company (Proprietary) Limited v. State of West Bengal and Ors. considered a situation where an apparent conflict between two entries in the Constitutional List and observed that in such a contingency the doctrine of harmonious construction must be invoked. At page 1050 of the report the Court observed that it is well settled rule of construction that every attempt should be made to harmonise the apparently conflicting entries not only of different list but also of the same list and to reject that construction which will rob one of the entries of its entire content and make it nugatory.
10. Again the Supreme Court in J.K. Cotton Spinning and Weaving Mills Company Limited v. State of Uttar Pradesh , para 7 observed that in applying the rule of harmonious construction “we have to remember that to harmonise is not to destroy”. It was further observed thus:
…In the interpretation of statutes that Courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. These presumptions will have to be made in the case of the rule making authority also…
(Underlining by us)
10. Counsel for the respondents have brought to our notice judgment of the Hon’ble Supreme Court in R.K. Sabharwal and Ors. v. State of Punjab and Ors. 1995(3) SLJ 227 (SC) : (1995) 2 SCC (L&S) 745 and J.C. Malik and Anr. v. Union of India 1978 SLJ 401 (All. HC) : (1978) 1 SLR 844 wherein the Apex Court had held that the percentage, for reservation had to be calculated on the total number of posts and not on the vacancies. This decision has been implemented by the Government.. Even though the above judgments are with reference to reservation for SC&ST, the principle will apply to all reservations ‘ including reservation of a certain percentage of posts by direct recruitment/promotion on “seniority/LDCE etc. As the Apex Court observed in R.K. Sabharwal’s case, the object of reservation will be achieved only when the required percentage of the number of posts is filled in the prescribed manner by candidates belonging to the category for whom they are reserved. Hence the intention of the rule makers is, no doubt, to reserve 20% of the posts existing before the cut-off date for being filled up by direct recruitment. Applying the Rule of harmonious construction, as explained by the Hon’ble Supreme Court in the above paragraph, the order of 9.10.2003 is to be interpreted as:- “the vacancies arising in the category of Personnel Inspectors after the cut-off date to the extent of 20% of the posts sanctioned before the cut-off date shall be filled by direct recruitment.”
11. The private respondents have filed copies of various judgments to prove their contentions. The applicants have also filed copies of judgments to support their objections to the submissions made by the respondents. They are discussed below:
I. List of Cases filed by Private Respondents
A. State Law-Retrospectively cannot be given effect to
(i) P. Mahendran v. State of Karnataka 1990(1) SLJ 48 (SC) : .
(ii) N.T. Bevin Katti v. Karnataka Public Service Commission AIR 1990 SC 1233.
(iii) Dr. P.N. Dubey and Ors. v. State of M.P .
(iv) Mohan Kumar Lal v. Vinoba Bhave University and Ors. .
B. Delay and Latches
(i) Prakash K. and Anr. v. State of Karnataka and Ors. .
C. Statutory Rules cannot be overridden by the Executive Orders
(i) K. Kuppuswamy v. State of T.N. .
(ii) B.N. Nagaraju v. State of Karnataka .
D. Locus Standi – Aggrieved Person
Ramegowda v. State of Karnataka 2006(1) Kar. L.J. 518 (D.B).
E. Number of Posts to be filled in
Sandeep Singh v. State of Haryana 2003 SCC (L&S) 800.
F. Percentage of Reservation Applicable to posts and not vacancies
R.K. Sabharwal and Ors. v. State of Punjab and Ors. (supra).
II. List of Cases filed by the Applicants
A. Application of new Rules when rules are changed after inviting applications but before the date of selection Prospective effect.
(i) Amalapuram Municipal Council and Anr. v. U. Sinhadri 1996(3) SLJ 99 (SC) : (1996) 10 SCC 651.
(ii) State of M.P. and Anr. v. Raghuveer Singh Yadav and Ors. .
B. Delay and Laches do not bar relief
(i) R.S. Deodhar v. State of Maharashtra .
(ii) Dehri Rohtas Light Rly. Co. Ltd. v. Dist. Board, Shahabad, Bhojpur
(iii) Kandasamy v. Rathinambal and Ors. AIR 1996 Madras 1252
C. Cancellation of appointment order
Union of India v. Tarun K. Singh .
At the Bar the applicants also produced copy of Rail way Board’s letter No. E(NG)1-96/PM 1/19 dated 21.10.97 regarding calculation of vacancies for selection posts to prove their contention that only 20% of the vacancies should be taken into account and not 20% of the posts. As per this circular, in addition to the existing vacancies, vacancies anticipated during the next 15 months should also be taken into account. They have also produced a notification from Southern Railway dated 1.7.2006 which shows the number of vacancies notified for LDCE for Personnel Inspector Grade I; only 2 vacancies have been notified and it cannot be 20% of the total posts in Personnel Inspector Grade I which was 34 prior to the restructuring.
12. We have examined the comparative merits of the submissions made by either side based on the various judgments cited and circulars issued by the respondent department.
13. A Contention regarding retrospective effect or otherwise of the order dated 17.6.2005
13.1 In Mahendran’s case the dispute involved related to selection and appointment of Motor Vehicle Inspectors. The contention of the appellants was that the 1987 amendment of the Recruitment Rules was not retrospective and amended rules did not have any effect on the selection which was in the process of finalisation by the commission. The Hon’ble Apex Court allowed the appeal accepting the submission made by the appellants. It was observed by the Hon’ble Supreme Court that:
Every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in a language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure.
The other 3 cases referred to by the private respondents also confirm the above view.
13.2 The first citation produced by the applicants to counter the contention of the private respondents in Amalapuram Municipal Council v. U. Simhadri (supra). In this case, the selection process was amended adding a few more steps for the selection to be finalised. The High Court had held that the additional steps will not be applicable to the selection process which was started before the amendment. The selected candidate was less meritorious than one of the rejected candidates and the Hon’ble Apex Court had taken note of this fact also while delivering the judgment. The additional steps for selection were ordered by the Government on becoming aware of the malpractice being committed in the method of recruitment of the candidates and that undue favouritism was being shown. The Apex Court, therefore ordered that the selection will be completed only after complying with the additional steps. Clearly the facts in Amalapuram Municipal Council are different from those in the O.As before us.
13.3 State of M.P. and Anr. v. Raghuveer Singh Yadav and Ors. (supra) was with regard to withdrawing the notification after qualifications for eligibility have been changed. It is the contention of the Counsel for the applicants that decision in Mahendran’s case has been overruled by the Hon’ble Supreme Court in Raghuveer Singh Yadav and Ors. From paragraph-6 of the above judgment, it is clear that Mahendran’s case was distinguishable from the case of Raghuveer Singh Yadav’s and the Hon’ble Supreme Court held that withdrawal of the original notification was not illegal as the State has not power to prescribe qualification for recruitment. The facts of the cases before us also are distinguishable from those in Raghuveer Singh Yadav in as much as no additional qualification has been prescribed as per the new rules dated 17.6.2005 and only the field from which the selection has to be made has been changed.
13.4 Thus the rule laid down in Mahendran’s case is to be followed when the recruitment rules are modified without mentioning the date from which it is given effect to.
14. B Delay and Laches
14.1 Prakash K and Anr. v. State of Karnataka which the private respondents have cited to prove that the present application suffers from delay and laches was an appeal against the decision of Karnataka Administrative Tribunal, Karnataka, wherein the Tribunal declined to interfere with the appointments on the ground of laches, as, by the time the challenge was made, all the appointments had already been made and incumbents were working; in the said case the select list was prepared in November, 1993 and the appointments were challenged only in June 1995. Hon’ble Supreme Court dismissed the appeal. The private respondents therefore pray that the O.As may be dismissed as they suffer from delay and laches.
14.2 The applicants have cited 3 decisions to oppose the above prayer. In Deodhar v. State of Maharashtra (supra), the Hon’ble Apex Court decided that:
The rule which says that a Court may not inquire into belated or stale claims is not a rule of law but a rule of practice is based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay the Court must necessarily refuse to entertain the petition. The question is one of discretion to be followed on the facts of each case.
It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on ground of laches or delay is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there was reasonable explanation for the delay. It may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Article 16 is itself a fundamental right guaranteed under Article 32 and this Court which has been assigned the role of sentinel on the quivive for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like.
14.3 In Dehri Rohtas Light Railway Company Ltd. v. Dist. Board, Shahabad and Ors. (supra), the decision in Deodhar v. State of Maharashtra is reiterated. The Hon’ble Supreme Court had held that dismissal of belated and stale claim is not a rule of law but i a rule of practice in Kandasamy v. Rathinambal and Others (supra), the Madras High Court had noted that the order of dismissal without giving reasons for granting or rejecting the relief of condonation of delay and considering the merits of the case without hearing the parties was a mistake and had ordered a review of the order.
14.4 We note that in the present case, no rights as such have accrued to the private respondents by reason of delay in filing the petition, for, the selection process is still to be to be completed and appointments are yet to be made . Moreover, we are of the view that the applicants got a ground for approaching this Tribunal, rather a grievance against the respondents, only after the issue of Railway Board’s letter dated 17.6.2005. On that count also there is no delay in approaching this Tribunal.
14.5 However, the applicants in O.A, 427/05 are also questioning the correctness of the calculation of vacancies in the Annexure-A2 notification which was issued on 20.11.2004. Also, the selection process had almost been completed by the time the applicants approached this Tribunal. If they had a grievance/doubt in their mind about the correctness of the calculation of vacancies, they should have approached the appropriate forum earlier, at least before the written examination was held. In fact, when the official respondents noticed that the original calculation of 5 vacancies was wrong, they issued a Corrigendum on 26.4.2005 and reduced the vacancies to 4 from 5 as per the reply statement filed by them. The applicants could have very well represented to the concerned authorities, if they had a grievance. On the other grounds raised, we hold there is no delay.
14.6 We also note that one of the applicants in O.A. No. 427/2005 (Applicant No. 5) had already participated in the selection process and had approached this Tribunal only when he found that his name did not figure in the short list o selected candidates. Applicant No. 5 in O.A. 427/2005 has therefore acquiesced himself to the action of the official respondents and hence has lost the right to question their action of resorting to direct recruitment.
14.7 But for making the above observation, we are not inclined to dismiss the applications in limine on the ground of delay and laches.
15.C. Statutory Rules cannot be overridden by the executive orders.
15.1 It is strong contention of the private respondents that the Railway Board’s order dated 9.10.2003 was issued with the approval of the President whereas the subsequent instruction dated 17.6.2005 was only an executive order issued under Article 162 of the Constitution. In this connection, 2 judgments have been cited (para-11C) in support of their contention.
The official respondents in their reply have also stated that all the orders dated 9.10.2003,6.1.2004 and 17.8.2004 were issued with the approval of the President of India. From the Annexure-Al and A6 in O.A. 427/2005, we find that the contention is correct. However, the words “with the approval of the President” are missing in the letter dated 17.6.2005.
15.2 Article 309 lays down that the recruitment and conditions of service are to be regulated by legislation by legislation by passing appropriate Acts. But there is a provision stating that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union of to make rules regulating the recruitment and the conditions of service of persons appointed to such services, until provision in that behalf is made by or under an Act of the legislature. In the two cases quoted by private respondent i.e. Kuppuswamy v. State of Tamil Nadu and B.N. Nagaraju v. State of Karnataka, the decision was that statutory, rules cannot be overridden by executive orders. In the present case, just because it is stated that the orders dated 9.10.2003,6.1.2004 and 17.8.2004 were issued with the approval of the President, they had not become statutory, as no law has been passed by the legislature on the subject matter. As Article 309 specifically provides that till legislature passes such Act, the President or any person that he may direct can make rules relating to service conditions, there is nothing wrong in Railway Board issuing the order dated 17.6.2005 and just because there is no mention therein that it is issued with the approval of the President, it does not become an invalid rule, for, there is a delegation by the President to the Railway Board to frame rules relating to recruitment etc.
16. D. Locus Standi.
16.1 The contention of the private respondents, that the applicants have no locus standi of aggrieved person is also not correct. In Ramegowda v. State of Karnataka (supra), the Hon’ble High Court held that a person who is no where in the zone of consideration for promotion to the post and has only a chance of promotion in future cannot be said to be a person aggrieved by the order and only a person directly and immediately aggrieved by the order has a locus standi to seek relief of certiorari. It was held that public interest litigation is not maintainable in service matters. In the present case, the applicants have produced their seniority list in the grade of Personnel Inspector Grade II and they are sufficiently senior for appearing for the LDCE examination and hence they have a direct interest, rather grievance in the matter of filling up the vacancies that would have been reserved for departmental candidates through LDCE examination, by candidates from open market through direct recruitment.
16.2 There is not force in the contention of the private respondents that the applicants have not challenged the Railway Board’s letter dated 9.10.2003, as the notification issued by the Railway Recruitment Board in employment notice No. 2/2004 is in accordance with the Railway Board’s letter dated 9.10.2003. The applicants’ submission is that the order dated 9.10.2003 stands modified with the issue of letter dated 17.6.2005 as it has retrospective effect. At the close of the arguments, the applicants’ Counsel further submitted that the letter of 17.6.2005 was issued after a “review” of the earlier decision conveyed in the letter dated 9.10.2003. A “review” is different from “reconsideration”. The use of the word “review”, implies that it has retrospective effect. However, we are not convinced by this reasoning put forth by the applicants as review is nothing but revision and as discussed in para-13, the review or revision has only prospective effect, unless otherwise stated in the revised order.
16.3 Another contention raised by the private respondents is that the applicants have sought multiple reliefs which are not consequential to each other. However, the private respondents have failed to explain how the reliefs are not consequential to each other. We are of the view that the reliefs sought conforms to the conditions of Rule 10 of CAT (Procedure) Rules, 1987.
17. E. Number of Posts to be filled in by direct recruitment.
17.1 In Sandeep Singh v. State of Haryana and Ors. (supra) quoted by the private respondents, the Hon’ble Apex Court held that vacancies available upto the date of interview should be filled up from amongst the candidates selected. They, therefore argued that all the vacancies that arose in the Cadre of Personnel Inspectors Grade I, since 2.11.2003 till the date of completion of selection are to be filled up by direct recruitment.
17.2 However, in this case, the selection is yet to be finalised and mode of filling up of vacancies by direct recruitment has been changed to that of filling up the vacancies through LDCE with effect from 17.6.2005. We, therefore, hold that the vacancies in Personnel inspector Grade I which arose after the cut-off date i.e. 1.11.2003 till the issue of Railway Board’s letter modifying the method of recruitment i.e. 17.6.2005 are only to be filled up by direct recruitment. It was also submitted by the Senior Standing Council for the Railways that respondents will restrict the number of appointments to be made by direct recruitment to the vacancies that arose from 2.11.2003 to 17.6.2005, subject to the condition that it will not exceed 20% of the posts in Personnel Inspector Grade I that existed prior to 1.11.2003.
18. On the points C to E discussed above, the applicants have not produced any decisions from higher Courts to oppose the submissions made by the private respondents. In any case, we are of the view that the case laws produced by the private respondents on the issues at C&D are not applicable to the present case and regarding the point at E, we agree with the submission made by the official respondents. The subject matter regarding percentage of reservation (F) has already been discussed elsewhere (para 10) and we have agreed with the contention put forth by the official respondents.
19. G. Cancellation of appointment order.
In Union of India v. Tarun K. Singh and Ors. (supra), quoted by the applicants, the Supreme Court held that:- “Cancellation of appointment on the ground of mal practice in selection process was quite legal.” The facts in the present O.A. are clearly distinguishable from the above case. In fact the private respondents have also conceded that they have no right for appointment even if the selection process is completed. It is the prerogative of the Government to decide whether the selected candidates are to be appointed or not. The right that accrues to the candidates who have participated in the selection is only a right to be considered for selection. This principle has been laid down by the Apex Court in a number of cases. In State of U.P. v. Bibhakar Dwivedi and Ors. 2004 SCC (L& S) 969, it is stated unamnbiguousyly in para 11 that;-
The general principle of law as has been established and followed repeatedly by this Court is that even those candidates whose names are included in the merit list do not have a vested right to be appointed.
20. In Virendra Hooda v. State of Haryana the Hon’ble Apex Court held that:
4…. When a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the respondents ought to follow the same.
Thus selection and appointment are the prerogative of the employer department. The Court interferes only if there is any illegality in the selection process. In the present case, when the respondent Government department has already taken a decision that the Railway Recruitment Board could go ahead with the selection process initiated before the recruitment procedure was modified, there is nothing illegal in finalising the selection list and appointing persons to the extent of number of vacancies that are justified to be allocated for direct recruitment.
21. Regarding the Railway Board’s letter dated 21.10.1997 produced by the applicants, it is seen that the letter relates to the method of calculation of vacancies for selection posts (promotion) and not for direct recruitment. The notification dated 1.7.2006 showing the vacancies announced for LDCE examination is issued by the Southern Railway, who is not a respondent in the present O.A. Therefore, we cannot go into the details of calculation of vacancies done by the Southern Railway.
22. At the Bar, the Counsel for the applicants pointed out that the Recruitment Board had sought a clarification from the Executive Director, Estt. (RRB), New Delhi as to whether the instructions in the letter dated 17.6.2005 will be applicable only for future recruitments. The clarification was also given by the Deputy Director, Estt.(RRB) whereas the letter dated 9.10.2003 and subsequent clarifications were issued by the Personnel branch of the Railway Board and hence further instructions should have been sought from personnel branch only. We do not find much force in this argument. The letter of Railway Board dated 17.6.2005 was circulated by the Personnel branch of South Western Railway; however, the instructions regarding recruitment have to be carried out by the recruitment branch. It is also made clear in Annexure-R2 that the decision dated 29.8.2005 to go ahead with the selection for the post of Personnel Inspector Grade I as per employment notice No. 2/2004 is the decision of the Railway Board. It is immaterial whether the decision is communicated by the establishment branch or personnel branch. It is also seen that the matter of recruitment comes under the establishment branch as Railway Recruitment Board is placed with it. Therefore, we do not find any merit in the argument put forth by the Counsel for the applicants.
23. As regards objection about non-challenge of Rl & R2, raised by the respondents, the applicants have filed an M.A to amend the prayer by adding the prayer to quash Rl & R2. This prayer has not been opposed by the respondents and hence has been allowed.
24. As discussed in the preceding paragraphs, we hold that both the O.As are not delayed and the question of laches will not apply to the applicants except to the 5th applicant in O.A. 427/2005. We do not agree with the applicants that the circular dated 17.6.2005 has retrospective effect, as there is no mention in it about the date from which it comes into effect. We agree with the contention of the official respondents that the letter has only prospective effect. This has been made clear in the communication at Annexure-R2 also.
25. Regarding the calculation of vacancies, there is no doubt that 20% of the posts in the cadre of Personnel Inspector Grade I were to be filled up by direct recruitment till the procedure of filling up of these 20% of posts was modified by the instructions in the letter dated 17.6.2005. About the number of vacancies advertised and to be filled up, we note that though in the original notification 5 vacancies were announced, it was changed to 4 subsequently, though we do not find any mention in the employment notice at Annexure-A2 that the vacancies are subject to change. We presume that such a provision exists in the Railway Recruitment Board’s rules. In any case, respondent No. 3 has to restrict the number of direct recruits to be appointed to the number of vacancies that have arisen from 2.11.2003 till 17.6.2005 limiting it to 20% of the posts that existed before the cut-off date, viz. 1.11.2003 (the date of restructuring).
26. With the above directions the O.A is disposed of. There will be no order as to costs.