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DISCRIMINATION OF THE WORST AND INTRICATE KIND IN INDIAN RAILWAYS
THIS INTENDED APPLICATION WILL TELL YOU THE STORY HOW I WAS DISCRIMINATED BY THE GOVT. OF INDIA AND THE INDIAN RAILWAYS IN THE PROMOTIONAL SELECTION TO THE POST OF PRINCIPALS. INSPITE OF THE FACT THAT THE APPLICANT BEING MERITORIOUS AND ACQUIRED THE HIGHEST MARKS IN VIVA VOCE, HE WAS LET DOWN IN THE RECORD OF SERVICE AS FOUND BY THE CENTRAL INFORMATION COMMISSION, NEW DELHI. THIS APPLICATION COULD NOT GO TO THE COURTS AS THE ADVOCATES DID NOT WANT TO FILE THIS APPLICATION IN THE PRESENT FORM AS THEY ALL BELONGED TO ONE HINDU CHAUVINISM BUT THEY FILED THE APPLICATION IN A DIFFERENT FORM SO THAT THEIR AND THEIR ADMINISTRATIVE ACCOMPLICES’ RELIGIOUS BIGOTRY MAY NOT BE EXPOSED.
KINDLY READ IT------
1.That the present original application along with the rejoinders and other misc. applications against the answering respondents are maintainable in view of the fact that all the eligible candidates except the applicant are twice failure or thrice failures. And that the respondents NO. 03 and 05 were not selected on the basis of due procedure. The respondent No.04 has admitted that the official respondents have failed to follow the procedure it its letter and spirit as prescribed by the Railway Board. The selected respondents are to be blamed as they did not protest the selection procedure and the illegal induction of Sh.A.K. Chouhan as the applicant before the selection knowing the procedure was erroneous and malafide. They preferred to keep silent as they seem to have pre-fixed their selection well in advance. A pertinent question can be raised: How they got selected without knowing the true mandate of the procedure established by law? Their selection deserves to be quashed and their benefits withdrawn as they have themselves pleaded in their reply.
2. The applicant has not been selected and not working as Principal, but the respondent No.04 is selected and working as principal. The issue of DRM Award which she claims to have got is immaterial to the case. The awards in the Railways are without self-nominations or without mutual nominations of the administration and the candidates by considering all the eligible candidates for the same ; as such they are reminiscent of the British Imperialism which has its deep roots even after independence.The process of challenging the selection procedure and the illegal induction of Sh.A.K. Chouhan had started much before the selections as soon as the notification for the selection was notified to the applicant. The applicant took no time in protesting the illegal procedure and the illegal induction of Sh.A.K. Chouhan. The applicant had protested prior to the selection and therefore, the estoppel which the respondent No.04 is talking about is without substance.Moreover, there is no waiver to the statutory rules and the Govt. of India Circulars followed by the Railway Board. Hon’ble CAT cannot allow debate on the circulars in its forum and they have to be accepted as they are. The law of Estoppel does not operate against any one of them and even the Hon’ble CAT does not have powers to legislate upon the already legislated pieces of legislation as they are policy decisions.
3. Annexure A-4 is applicable to all the selection posts and even the post of Principal is a Selection post though it may prospectively become a gazetted post. It becomes gazetted only when the approval of the UPSC is sought. The initial induction is like any non-gazetted candidate and then it later on gets the approval of the UPSC to be inducted into the category of gazetted post. No-body can become gazetted without the approval of the UPSC which is done only after the screening by the Apex Body of Civil Services.
Annexure A-5 read with Railway Board Circular dtd.2004 is fully applicable to the posts of Principals of the Schools where written examinations had been made mandatory for all the prospective gazetted posts. The official respondents and the respondents no.03 and 04 have failed to submit any documentary evidence that annexure A-5 is not applicable to the posts of the Principals of the schools. The letter dtd.07.08.03. of the Railway Board says that the selection to the highest grade within the teaching category should be through written and viva voce exams. Wherein 50 to 55% of the written questions should be of objective type. The distributions of marks for written should be 35 and 25 for viva-voce.
The humble applicant submits --
- That the Zonal Headquarter Office, North Western Railway, Jaipur issued selection notification No.871E/1/1Gr. ‘B’(School), dtd.23.06.05 regarding selection for promotion to the two Group-B posts of Headmasters in the scale 7500-12000. Out of the two vacancies, one was reserved for SC category, and the other one vacancy was open to the General category. The selection notification specifically laid down that—
“The panel will be formed for 02 vacancies and the said selection will be based on the VIVA-VOCE ONLY without written test”
The authorities had fully tried to operationalise the law of estoppel to hold viva-voce only as the basis of selection but the same was ignored as the humble applicant along with Respondent No.04 scored the highest marks in the said viva-voce though the Rly Board had clearly specified in its letter No.RBE 146/2004 (No.E (GP)99/22 dtd.22.07.2004that selections to all Group-B posts will be held on the basis of written exams whether promotional selections or Limited Departmental Competitive Exams.
The notification also carried in the last the option eliciting candidates for participating in the process of selection only through written exams as per the Annexure for Willingness was only done on the basis of the notification of Railway Board letter dtd.2004. The notification gave the applicant twin chances of proceeding before law, firstly, he could claim promotion on the basis of law of estoppel if he achieved highest marks in the viva voce. Secondly, the notification also provided an opportunity to challenge the process of selection even after the results were declared as per willingness for selection on the basis of written exams floated by the official respondents. In view of this, the original application is not only maintainable but also deserves to be upheld.
4) That two vacancies were advertised, 01 for the post of Headmaster and the other 01 for the post of Principal. The post of Headmaster exists in RailwaySecondary School, Rewari and the other post of Principal exists at RailwaySeniorSecondary School, Bandikui which was downgraded from Senior Scale to Junior Scale. If reservation is provided for single post of Headmaster at Rewari, it tantamounts to 100% reservation as the posts of HM and Principal have different avenues of promotion and different areas of responsibility. The official respondents had clubbed the two posts with a common notification of selection. They are simply ignorant about the Principles of Personnel Establishment related to the selection of Head Masters and Principals.
Thus the selection and reservation of Res.No.03 is violative of law and the selection of Res.No.04 is a sordid story of favoritism and clearly violates the law. The induction of Sh.A.K. Chouhan, Res.No.05 violates the legal right of the applicant. In fact the illegal selection of Respondents No. 03 and 04 and illegal induction of Sh.A.K. Chouhan from foreign zone is a blatant encroachment upon the legal rights of the applicant.
Moreover, when restructuring vide downgrading and upgrading is done, the reservation in the present case of Sh..G.S. Jyotiana, Res.No.03 will not apply as the Group-Aand Group-B post was clubbed together which carry different responsibilities of SeniorSchool and Secondary School respectively and have different avenues of promotion. They should have been isolated and reservation formula applied accordingly as was held in “Diploma Engineers Association., UPSIDC Ltd v/s State of UP 2003(3) SCT 299(Allahabad-DB)”.
In this case, As averred by the Res. No.04 that the post of HM/Principal is non-selection post. As per Rly. Board letter No.E(P & A) I- 87/PS-5/PE-5, dtd.11.01.88 that the selection to the posts of HM/Principals will be on the basis of pure merit and as such there will be no marks or weightage for seniority. It clearly means that the posts are selection posts whereseniority is restricted only to calling of candidates as per zone of consideration i.e. for one vacancy 05 are called and for two vacancies 09 are called. The selection is purely on the basis of merit- cum- seniority and not on the basis of seniority- cum- merit. In Selection posts, seniority is merely the prior birth in the eligible cadre. If two of the same cadre have equal seniority, their Bioligical birth determines their seniority.
The questions of Seniority, Merit-cum-Seniority and Seniority-cum-Merit was decided by the Apex Court in a landmark judgment in Selection and Non-Selection Posts “Central Council for Research v/s Dr.K. Santha Kumari, 2001(2) SCT 1116(SC): 2001 (4) SLR 651” that in Selection posts merit-cum-seniority is the guiding principle of assessment, where merit plays a primary role and seniority only plays a secondary role by bringing a person in a zone of consideration and subsequently if two candidates are found securing equal marks, the senior is to be preferred. In non-selection posts seniority-cum-merit will mean only fitness and suitability of the person to hold the promotion post. If the senior is found fit or suitable, he will get the promotion as right. The respondent No.04 contended that the posts of Headmasters and Principals are non-selection posts. The pertinent questions then rise: Why she was ignored in the selections of 2003 when she was Senior Most there also? Why her juniors Sh.S.K. Sharma and Sh.R.K. Sobti superceded ? She was ignored on the basis of her adverse record of service and poor performance in the viva-voce vis-à-vis her juniors. The said respondent cannot derive undue advantage by enforcing the debate of selection and non-selection posts. The posts of HM/Principals are selection posts as confirmed by the Rly.Board Circular dtd.11.01.88 and such policy circulars cannot be debated in any forum as is the proposition of law. They have to be taken as they are. Even, the hon’ble Tribunal cannot go beyond the policy circulars as decided by Apex Court in a landmark judgement “Sumangla Naganath v/s Union of India, 2001(1)SCT 270: 2000 LIC 1898(SC)which is followed in every forum.
Res.No.04 has also averred that the applicant has failed and that he has no right to challenge the selection. The applicant places on record Assessment Sheet where he has passed and hasgot equal marks to Res.No.04i.e. both have secured 35 marks each in viva – voce out of 50.
The Assessment Sheet clearly shows that Res. NO.04 had failed twice earlier and was not eligible for further selection like all other eligible candidates except the applicant. Her selection this time, raises the question of impropriety and manipulation:-
“ What new thing emerged that the official respondents ignored her previous failures in service records as well as previous failures in viva-voces when particularly almost the same service records are summoned for assessment for the present selection?”
Whereas the applicant has passed his chances, previously and presently, and has full right toclaim the post as well as challenge the process of selection if found illegal.
Even the present selection of Respondent No.04 is manipulated to impart the much needed favouritism. The applicant is citing Proceedings of the Selection Committee held on 01.09.05:--
POINT NO.07. “The marks for record of service (CP-30 TO 38) have been allotted on the basis of last 05 years (year ending 2001 to 2005) confidential reports in terms of Railway Board’s letter No.E(GP)2000/2/95 dated 16.01.2001(CP22 to 20). The assessment of ACRs has been done based on the formula mentioned in the letter.”
AND
POINT NO.07.1 “Where ever clear grading against 05 attributes in Section – II has not been given and only positive qualifying remarks given same has been taken as “Very Good” by Selection Committee and negative remarks as “Average”
It is thus clear that “Very Good” was provided to the Respondent No.03 and 04 under the garb of unclear grading they have been awarded 04 marks out of 05 for all the last five years 2001 to 2005. However, the applicant has been left out with this dubious and nefarious facility of manipulation and favouritism. The official respondents have so manipulated the records that it is impossible for them to hold future selections even after 20 years in a fair and impartial manner since this manipulation in service records will play a heavy toll on the deprived applicant and will give undue weight age to all the other favourite candidates.The fate of the applicant has been further sealed till 2025, the retirement date of Sh.A.K. Chouhan, who has been illegally inducted to mar the prospects of the applicant.
In a landmark judgement of the Apex Court comprising Justices H.K. Sema and Markandey Katju reported in Times of India, dtd.13.05.2008, Jaipur Edition, Page 08 in “Dev Dutt v/s Border Road Engineering Services” gave relief to Dev Dutt saying that non-communication of any entry in confidential records is arbitrary and added that the employee should also be informed about average, good, very good, outstanding entries so as to enable him to represent the same for further upgradation. They further said that the sweep ofthe orders would be applicable to all the sectors of Government including judiciary. In view of the landmark judgement alone, the entire service record of all the eligible Post Graduate Teachers including the applicant and the respondents may be quashed since it suffers from the mischief of arbitrariness and manipulation and these mischiefs will adversely affect selections in future.
The protest of the applicant in Annex-A/3 is not void and discloses the fact that the applicant will challenge the process of selection even after the declaration of results. Thus the applicant has full rights to challenge the selection thus made.
Para-wise rejoinder to the reply is submitted herewith:-
i)The applicant has full rights to challenge the same.
ii)That the reservation of a single post of HM tantamouts to 100% reservation. A Hundred Percent Reservation pre-fixes the promotion and vitiates the entire selection.
iii)That the Res.No.04 has failed to submit reply to this para.
iv)The post is a selection post. As per willingness granted to the applicant to selection vide written exams and the circular dtd.2004 is a Rly Board Policy that all selections to Group – B Gazetted posts will be through written exams and that policy of the Govt. of India and of the Rly.Board is not debatable in any forum and has to be read and accepted as it is. Not even the Hon’ble Tribunal has power to subvert the said policy on the submissions of the respondents with disregard to the Apex Court Rulings and well laid established proposition of law.
v)The Hon’ble Tribunal has provided ample opportunity to the respondent even after the respondent No.04 chased away the notice bearing person on first occasion. The respondent has delayed the due process of law and is liable to all the costs and penalties. The respondent has failed to reply even this para.
Respondents No.03 and 05 have failed to reply and the official respondents also delayed the notices and replies to the full OA and as such they are liable to costs and penalties..
vi)The respondent never submitted any reply on previous occasion and thus failed to reply this para also on the excuse that this reply had been given.
P R A Y E R
1. Most humbly, the applicant reiterates that the induction of Sh. A.K. Chouhan from foreign zone of Western Railway to the home zone of North Western Railway prejudiced the right of the applicant. It was laid by the Apex Court that if at the time, the vacancies came into existence, the same were to be filled 100% by promotion. The induction of Sh.A.K. Chouhan says that a 3rd vacancy came into existence. Reference may be made to “Union of India v/s Mamta Anurag Sharma, 2001(6) Supreme 905: 2001 vii AD SC 451:2001(6) SLT 560: 2001(4) SCT 416 (SC) that inter-zonal transfers are not sustainable. Reference may also be made to “S.C. Kohli v/s MCD, 2001(2) SCT 841(Delhi) that if at the time, the vacancies came into existence, the same were to be filled 100% by promotion.”The Railway Board in its letter no. E/1-69SR-6/15 of 24.06.1969 says that “no transfer should be allowed on the post that are filled entirely by promotion of staff from the lower grades and where there is no element of direct recruitment.” The circular protects the non-gazetted employees from being hacked by foreign elements like the induction of Sh.A.K. Chouhan from a foreign zone. After the demarcation of separate zones, no lien to any zone can be claimed.The induction of Sh.Ashok Chouhan from the other Railway to this Railway deprives the applicant the opportunity of the post of HM at Aburoad as he has secured the highest marks in viva-voce along with Smt. P.K. Rathore. Both of them scored 35 marks each in viva-voce where the criteria of selection was viva-voce only. The applicant was left out since one vacancy was filled by the illegal induction of Sh. Ashok Chouhan and that one anticipated vacancy was not advertised by the authorties.