Sri Manoranjan Panda and Md. Umar and Ashok Kumar Sethi and Satyanarayan Pati and Trupti Ranjan Mohanty and Surendra Kumar Sahoo and Narayan Chandra Nayak and Subrat Kumar Subudhi and Muralidhar Dash and Pratap Keshari Jena and S.K. Reyasat and Gajanan Routray and Trilochan Barik and Judhistira Sundaray and Lalit Sarangi V. Union of India and General Manager, East Coast Railway and Divisional Railway Manager Khurda Road Division and Senior Divisional Personnel Officer Khurda Road Division

WP(C)/17312/2018

AI Insights

The case involves a group of petitioners seeking judicial review of an order by the Central Administrative Tribunal, which had dismissed their application for engagement as substitutes in the railway services. The petitioners argued that they were similarly situated to other applicants who had been granted such engagement, and claimed discrimination. The High Court found that the Tribunal had erred in law by labeling the petitioners as 'fence sitters' and dismissed their application without proper consideration of the facts and circumstances. The Court directed a fresh examination of the case by the Tribunal.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 694740 (HC-CUTTACK)
• Appeal Type: Others
• Pronouncement Date: 05-02-2024
• Assessment Year: misc
• Other Referred Cases: Orissa Administrative Tribunal Bar Association Vrs. Union of India, L. Chandra Kumar Vrs. Union of India, Union of India Vrs. P. Gunasekaran, State of Andhra Pradesh Vrs. S. Sree Rama Rao, Lalit Popli Vrs. Canara Bank, Amarendra Kumar Pandey Vrs. Union of India, Ravi Verma & Others Vrs. Union of India & Others, Ram Manohar Vrs. State of Bihar, Dwarka Das Vrs. State of J. and K., Motilall Vrs. State of Bihar, Barium Chemicals Ltd. and another Vrs. Company Law Board and others, Rohtas Industries Ltd. Vrs. S.D. Agarwal and another
• Laws Referred To: Articles 226 and 227 of the Constitution of India, 1950
• Result in Favour of: Others
• Court: HIGH COURT
• Assessee Lawyers: SASWATI MOHAPATRA; BISWAJIT MAHARANA
• Keywords: Central Administrative Tribunal; Contempt of court; Discrimination; Engagement; Judicial review; Railway Authorities; Substitutes

Judgement Text

" W.P.(C) No.17312 of 2018 Page 1 of 34 ORISSA HIGH COURT : CUTTACK W.P.(C) No.17312 of 2018 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** 1. Sri Manoranjan Panda Aged about 45 years Son of Chintamani Panda At: Kudiary, P.O.: Jatni District: Khordha 2. Md. Umar Aged about 48 years Son of Abdul Rauf At: Naginabag, P.O.: Danogahir Via: Pipili, District: Puri 3. Ashok Kumar Sethi Aged about 49 years Son of Late Giridhari Sethi At: Balichhaksahi, P.O.: Jatni District: Khordha 4. Satyanarayan Pati Aged about 46 years Son of Late Sheshadeb Pati At: Balichhaksahi, P.O.: Jatni District: Khordha 5. Trupti Ranjan Mohanty Aged about 47 years Son of Late Narayan Mohanty At: Taratua, District: Khordha W.P.(C) No.17312 of 2018 Page 2 of 34 6. Surendra Kumar Sahoo Aged about 46 years Son of Late Kanhu Sahoo At: Bikashnagar, P.O.: Jatni District: Khordha 7. Narayan Chandra Nayak Aged about 47 years Son of Late Mohan Chandra Nayak At: Okal, P.O.: Baralapokhari Via: Charampa, District: Bhadrak 8. Subrat Kumar Subudhi Aged about 45 years Son of Late Golak Subudhi At/P.O.: Kudiary, District: Khordha 9. Muralidhar Dash Aged about 47 years Son of Late Bharat Dash At: Shyam Mohapatra Patna P.O.: Manibandha, Via: Pichukoli District: Khordha 10. Pratap Keshari Jena Aged about 44 years Son of Late Sudarsan Jena At: Routapada, P.O.: Kusumi District: Khordha 11. S.K. Reyasat Aged about 47 years Son of Late S.K. Rashid At: Baralapokhari, P.O.: Charampa District: Bhadrak 12. Gajanan Routray Aged about 51 years Son of Late Nabaghana Routray At: Podapada, P.O.: Arugul Via: Jatni, District: Khordha W.P.(C) No.17312 of 2018 Page 3 of 34 13. Trilochan Barik Aged about 51 years Son of Late Bulu Barik At: Podapada, P.O.: Arugul Via: Jatni, District: Khordha 14. Judhistira Sundaray Aged about 52 years Son of Dhobali Sundaray At: Bachhara, P.O.: Jatni District: Khordha 15. Lalit Sarangi Aged about 50 years Daughter of Basanta Kumar Sarangi At: Bikashnagar, P.O.: Jatni District: Khordha … Petitioner -VERSUS- 1. Union of India Represented through its Secretary to Government of India Railway Board, Ministry of Railway Rail Bhawan, New Delhi – 1 2. General Manager, East Coast Railway Rail Vihar, Chandrasekharpur Bhubaneswar, District: Khordha 3. Divisional Railway Manager Khurda Road Division P.O.: Jatni, District: Khordha, Odisha 4. Senior Divisional Personnel Officer Khurda Road Division (DRM(P)/KUR) P.O.: Jatni District: Khurda … Opposite parties Counsel appeared for the parties: W.P.(C) No.17312 of 2018 Page 4 of 34 For the petitioners : M/s. Saswati Mohapatra, T.P. Tripathy and L.P. Dwivedy, Advocates For the opposite parties : Mr. Biswajit Maharana, Central Government Counsel P R E S E N T: THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R. SARANGI AND THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 05.02.2024 :: Date of Judgment : 05.02.2024 JUDGMENT MURAHARI SRI RAMAN, J.— THE CHALLENGE BY THE PETITIONER: Judicial review of the Order dated 19.03.2018 passed by the learned Central Administrative Tribunal in Original Application being No.260/430/2016 is sought for by fifteen numbers of the petitioners joined together (collectively be referred to as “petitioner”), craving for the following relief(s): “Under the aforesaid facts and circumstances of the case, it is, therefore, prayed that this Hon’ble Court may graciously be pleased to: W.P.(C) No.17312 of 2018 Page 5 of 34 (i) Quash the impugned Order dated 19.03.2018 under Annexure-8 by concurrently holding the same as bad, illegal and not sustainable in the eye of law and thereby direct the Railway Authorities to engage the petitioners as substitutes with all monetary and consequential benefits; (ii) Pass such other order(s) or direction(s) as may be deemed fit and proper in the bona fide interest of justice; And for this act of kindness, the petitioners as in duty bound shall ever pray.” FACTS AS ADUMBRATED BY THE PETITIONERS: 2. Twenty persons along with certain other persons applied for enrolment of fresh faces as substitutes for utilization against day to day casualties in pursuance of the invitation of applications from the children of the railway employees who had retired on superannuation or voluntarily after 01.01.1987 or were to retire from service by 31.12.1993. These twenty persons, being children of retired railway employees, moved their applications before the Divisional Railway Manager (Personnel), Khurda Road. The railway authorities conducted test/screening but stopped to take further steps and the results being not declared, twenty applicants filed Original Application No. 511 of 1994, which came to be disposed of on 04.01.1999 with the following observation: W.P.(C) No.17312 of 2018 Page 6 of 34 “*** The admitted position was that there were allegations with regard to the interview/test conducted by the Screening Committee and on receipt of such allegations, enquiry was taken up by the Vigilance Organization of the Railways which seized all the records. Under these circumstances, no fault can be found with the respondents for not publishing the results of the test. The applicants have prayed that the respondents should be directed to publish the result of the test within a time limit to be fixed by the Tribunal. It would not be correct to give such direction because in case during the enquiry by the Vigilance Organization large scale irregularities have been proved, then the authorities will be within their rights to cancel the entire test. Without knowing what the allegations and what are the results of the enquiry, it would not be correct to issue a blanket direction of the type prayed for by the applicants. At the same time, it is to be noted that the Vigilance Department seized the records some time in January, 1992 and started their enquiry. More than five years have passed in the meantime, it is therefore, necessary that the Vigilance Organization of the Railways completes their enquiry within a specified period if that has snot already been completed. In consideration of this, we direct respondent Nos. 1 and 2 to order the Vigilance Organization to complete the enquiry and submit their report within a period of 90 (ninety) days from the date of receipt of copy of this order. Further action with regard to the interview/test will have to be taken on the basis of findings of the Vigilance Organization in the enquiry into the alleged irregularities in the interview/test. In view of the above, it is not possible to issue direction to the respondents to give engagement to the applicants or even to enroll them in a panel to be appointed as substitutes against day to day casualties.” W.P.(C) No.17312 of 2018 Page 7 of 34 2.1. However, the Tribunal in its aforesaid order made it clear that under the existing policy of the department there was no bar for considering the wards of the railway employees for enrolment as substitutes along with outside candidates. Against the aforesaid Order of learned Central Administrative Tribunal approach being made to this Court in O.J.C. No. 6140 of 1999, the same got dismissed vide Order dated 22.01.1999. Therefore, these twenty persons made applications in response to the Notification dated 13.08.1990 and this triggered filing of fresh Original Application before the Central Administrative Tribunal, Cuttack Bench, Cuttack, which was registered as O.A. No.520 of 2001. Relevant portion of Order dated 16.04.2004 is as follows: “7. As a result, we hold that the scheme (under which the recruitment, in question, was going on) was not an unlawful one and that calling the scheme bad would be of no purpose; because enrolment of substitute has taken place in other three Division long before. It is also clear that enrolment under Khurda Division was withheld on certain allegations otherwise the same would have been completed at the same time as was done in other three Divisions. 8. Another aspect of the matter is that it is now over a decade the selection has been abandoned. It is also not certain how many candidates would be available for enrolment and whether any practical purpose would be served by restoring the process of selection. Nonetheless, the point of discrimination stares at the whole matter and we need to address W.P.(C) No.17312 of 2018 Page 8 of 34 this point. In this respect, there is no gain saying the fact that discrimination should not be allowed to happen and as under the scheme of recruitment of substitutes the respondents are at liberty to choose people according to their requirements and are not bound by any given procedure, it would be harsh if the candidates who were put to rigorous test are denied the fruits of their labour. 9. Keeping in all these facts of the matter in view, although we are comprised that there should be no discrimination, we are also not convinced that the applicants have been able to make a good case for directing the respondents to conduct fresh screening/test in respect of the applicants who had applied in response to the circular dated 13.08.1990 (Annexure-A/2); nor we would like to accept the plea of granting pro forma seniority in respect of all those who would become successful in the said screening test. We, however, direct that as under the existing policy of the respondent-department, there is no bar for considering the wards of the railways employees for enrolment of substitutes along with outsider candidates, the respondents are, hereby, directed to consider the cases of all the applicants, who had applied in response to the Notification under Annexure-A/2 dated 13.08.1990, as and when they would take action for enrolment of substitutes under their organization.” 2.2. Challenging the aforesaid Order dated 16.04.2004 passed by the learned Central Administrative Tribunal, Cuttack Bench Cuttack, in O.A. No.520 of 2001, the respondents, i.e., Union of India approached this Court by way of filing writ petition being W.P.(C) No.8814 of W.P.(C) No.17312 of 2018 Page 9 of 34 2004, which came to be disposed of vide Order dated 17.03.2006 with the following observation: “9. In the result, the writ petition allowed in part. The impugned judgment and order passed by the Tribunal is modified to the extent that on the availability of vacancies, the petitioners shall invite applications according to their requirement by making publication in some newspapers having wide circulation. Opposite parties 1 to 20 shall also be allowed to apply therein along with the outsiders, in case, they move applications pursuant to the same mentioning that they were applicants had applied for in respect of the earlier notification dated 13.08.1999 inviting applications for the same purpose. The case of those who have become over- age shall be considered for relaxation. 10. It goes without saying that as a result of the selection, the select list shall be prepared without any discrimination between the wards of the Ex- Railway employees and the outsider who are declared selected.” 2.3. Despite the aforesaid order passed by this Court, as no action was taken by the railway authorities, the aforesaid petitioners filed contempt petition bearing CONTC No.1239 of 2007, which was disposed of on 14.07.2009 with the following observation: “*** Notice was issued in the contempt application to all the opposite parties to show cause as to why a proceeding under the Contempt of Courts Act shall not be initiated against them for violation of the judgment and order of this Court dated 17.03.2006 passed in W.P. (C) W.P.(C) No.17312 of 2018 Page 10 of 34 No.8841 of 2004. In response to the said notice, a reply was filed by Contemnors 2 and 3 on 19th September 2008. It is stated in reply that employment notice was issued on 28.10.2006 by way of a paper advertisement and in response to the said advertisement, out of 20 petitioners 19 applied and they were all called for written examination held in September-October, 2007 and age relaxation had also been extended to them. None of those 19 petitioners appeared in the examination and, therefore, there has been no violation of order of this Court. As is evident from the judgment in the aforesaid case, claim of the petitioners was for enrolment as fresh faces for being appointed as substitutes for utilization against the day-to- day casualties and the Central Administrative Tribunal having turned down their claim, this writ application was filed by the petitioners. This Court while disposing of the writ application passed the following order: ‘In the result, the writ petition is allowed in part. The impugned judgment and order passed by the Tribunal is modified to the extent that on the availability of vacancies the petitioners shall invite applications according to their requirement by making publication in some newspapers having wide circulation. Opposite parties 1 to 20 shall also be allowed to apply therein along with the outsiders, in case, they move applications pursuant to the same mentioning that they were applicants had applied for in respect of the earlier notification dated 13.08.1999 inviting applications for the same purpose. The case of those who become over age shall be considered for relaxation. It goes without saying that as a result of the selection, the select list shall be prepared without W.P.(C) No.17312 of 2018 Page 11 of 34 any discrimination between the wards of the Ex- Railway employees and the outsiders who are declared selected. Further, the observation made against the petitioners by the Tribunal in paragraph-10 of the judgment regarding their misleading the Tribunal as well as this Court and imposing cost of Rs.1000/- upon them is quashed. No order as to costs.’ From reading of the judgment, it is clear that the claim of the petitioners was for appointment as substitutes but the advertisement on which reliance has been placed by the opposite parties 2 and 3 in order to show that 19 out of 20 petitioners had applied for being appointed relates to recruitment to Group-D Posts and it has got nothing to do with the appointment as substitutes. It was brought to the notice of the Court by way of evidence that several faces have been appointed as substitutes in spite of direction of this Court in the aforesaid writ application ignoring the case of the petitioners. This Court by order dated 27.11.2008 again directed the Railway Administration to file an affidavit as to how in spite of the order of this Court substitutes have been appointed in the year 2007- 08 ignoring the case of the petitioners and it was further directed that the affidavit must indicate the names of the persons who have been given appointment as substitutes in the year 2007-08 as well as the procedure adopted for such appointment. In pursuance of the said order, an affidavit has been filed by opposite party no.1 but the affidavit is completely silent about the appointment of substitutes in the year 2007-08. Opposite party No.1 has not filed a reply to the notice to show cause. The petitioners have filed further affidavit on 30th June, 2009 and the documents annexed to the said W.P.(C) No.17312 of 2018 Page 12 of 34 affidavit show that during the year 2009, 114 Fresh Faces Group-D (Substitutes) have been appointed. These documents have been obtained by the petitioners under the Right to Information Act. It is also stated in paragraph 11 of the affidavit filed by opposite party No.3 that 16 persons have been engaged as fresh substitutes. In view of admission of opposite party no.3 in the aforesaid paragraph as well as the documents obtained under the Right to Information Act indicating appointment of 114 fresh faces as substitutes during the year 2009, we are of the view that there has been clear violation of order of this Court passed in the aforesaid writ application. We, accordingly call upon the contemnor-opposite parties to show cause as to why they shall not be convicted under the Contempt of Courts Act for violating the judgment and order of this Court passed in the aforesaid writ application. Reply be filed within six weeks from today. Notice be issued to the contemnor-opposite parties 1 to 3 immediately by registered post. Requisites be filed by Monday (20.7.2009).” 2.4. The present petitioners approached the Central Administrative Tribunal, Cuttack Bench, Cuttack (for short, “CAT”) in different Original Applications (“O.A.”) being 256/2005, wherein the following was the observation and direction: “149 applicants have filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985 claiming therein that they are the applicants for various posts as W.P.(C) No.17312 of 2018 Page 13 of 34 substitutes in different organizations of present Khurda Road Railway Division of erstwhile South Eastern Railway non-consideration of the case of similarly placed persons as that of the present applicants, is the subject matter of the application before this Tribunal in O.A.No.520 of 2001 which was disposed of on 16.04.2004 with a direction to the Respondents Department. A copy of the Order dated 16.04.2004 as rendered by this Tribunal in O.A. No.520 of 2001 has been annexed under Annexure-3 to this O.A. It is the case of the present 149 applicants that while considering the case of the applicants in O.A. No. 520 of 2001, their (149 applicants) case should also receive the due consideration of the Respondent-Department. In the aforesaid premises, this case is disposed of granting liberty to the applicants to individually represent their cases before the Respondents; provided the applicants to make their representations by the end of June 2005 and the Respondents should give due consideration to the grievances of the applicants keeping in mind the direction dt.16.04.2004 of the Tribunal rendered in O.A.No.520 of 2001. The entire exercise should be completed by the Respondents by the end of November, 2005 under intimation to each of the applicants herein. In the aforesaid observation and directions, this O.A. is disposed. Send copies of this order to the Respondents along with copies of the O.A. and free copies of this order be handed over the Mr. P.C. Pradhan, Ld. Counsel for the applicant and Mr. R.C. Rath, Ld. Standing Counsel, on whom a copy of this O.A. had already been served. W.P.(C) No.17312 of 2018 Page 14 of 34 A copy of this order along with a copy of the O.A. be also sent to the General Manager of East Coast Railway at Railvihar, Chandrasekharpur, Bhubaneswar for which the advocate for the applicant has undertaken to file an extra copy of the O.A. in course of today.” 2.5. As no action was taken by the railway authorities concerned in spite of the earlier orders of this Court as well as the order of the CAT, the petitioners approached this Court by way of filing a writ application being W.P.(C) No.8202 of 2005. In said W.P.(C) No.8282 of 2005, this Court vide Order dated 19.11.2010 made the following observation and direction: “Heard Mr. S.D. Das, learned Senior Counsel appearing for the petitioners and Miss M. Ghose, learned counsel appearing for the opposite parties. Petitioners had approached the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. Nos.256 of 2005 and 336 to 483 of 2005, claiming therein that they are the applicants for various posts as substitutes in different organizations in Khurda Road Railway Division, the erstwhile South-East Railways. It was their further case before the Tribunal that the cases of similarly placed persons have already been considered by the Railway Authorities in pursuance of the order of the Tribunal in O.A. No.520 of 2001, whereas the present petitioners’ cases have not been considered for appointment. This being the only grievance of the petitioners, learned Tribunal vide order dated 08.06.2005 disposed of the batch of Original Applications granting liberty to the petitioners to individually represent their cases before the opposite party-Railways by the end of June, 2005 and W.P.(C) No.17312 of 2018 Page 15 of 34 also directed the opposite party-Railways to consider their grievance keeping in mind the directions contained in the order dated 16.04.2004 passed in O.A. No. 520 of 2001 The entire exercise was directed to be completed by the end of November, 2005 under intimation to each of the petitioners. In pursuance of the directions of the Tribunal, as aforesaid, all the petitioners submitted their representation within time. However, their representations having not been considered by the opposite party- Railways within the time frame granted by the Tribunal, this writ petition was filed. As it appears, because of an interim order passed in W.P.(C) No. 8814 of 2004, the cases of the petitioners were not considered in terms of the order passed by the Tribunal. Therefore, in this writ petition the prayer was made to here this case along with W.P.(C) No. 8814 of 2004 and also for a direction to the opposite parties to consider their case for appointment in the Group-D posts. It further appears from Annexure-6 series attached to Misc. Case No. 818 of 2010 that the representations of the petitioners could not be considered because of the interim order passed in W.P.(C) No. 8814 of 2004. It is stated at the Bar that the said writ petition W.P.(C) No. 8814 of 2004 has been disposed of in the meantime and there is no further impediment in considering the representations of the petitioners in terms of the order of the Tribunal. We, therefore, dispose of this writ petition directing the opposite parties-Railways to consider the representations of the petitioners in terms of the order of the learned Tribunal passed in O.A. Nos. 256 of 2005 and 336 to 483 of 2005, within four months from the date of communication of this order. W.P.(C) No.17312 of 2018 Page 16 of 34 Requisites for communication of this order to the opp. party members by registered post with AD be filed within one week.” 2.6. It appears from the pleadings that alleging non- compliance, the petitioners filed contempt petition bearing CONTC No.783 of 2011, which was dismissed with the following Order of this Court on 16.02.2016: “Since the representation of the applicants has already been decided, which in the opinion of the applicants is not a legal decision, no contempt is made out. It is for the applicants to seek redressal of their grievance in a proper forum by filing an appropriate petition. But so far contempt application is concerned, there is no willful disobedience of the order passed by the Court. Hence, the contempt petition stands dismissed.” 2.7. Out of twenty petitioners most of them have been absorbed by the railway authority. The railway authorities have, in the meantime, appointed three persons as “substitutes”, as is apparent from the information provided under the Right to Information Act, 2005 by the railway authority. Though the petitioners are similarly situated and entitled to be absorbed by the railway authorities, the representations of the petitioners were rejected on 31.03.2011 on the ground that as Notification No.1 of 1990, dated 13.08.1990 has been cancelled vide Notice dated 22.01.1999, the case of the petitioners could not be considered. W.P.(C) No.17312 of 2018 Page 17 of 34 2.8. It is submitted by the petitioners that even though the petitioners have been pursuing the matter diligently throughout, the CAT failed to appreciate the matter in proper perspective and without any rhyme and reason came to erroneous finding that these petitioners are “fence sitters who preferred to sit even (sic. over) their right for decades”. Hence, this petition invoking provisions of Article 226/227 of the Constitution of India has been preferred by the petitioners. REPLIES OF THE OPPOSITE PARTIES TO THE CONTENTS OF THE WRIT PETITION: 3. Having explained that “substitute” means the persons engaged in Indian Railway Establishments on regular scale of pay and allowances applicable to the posts against which they are employed. These posts fall vacant on account of a Railway servant being on leave or due to non-availability of permanent or temporary Railway servants and which cannot be kept vacant”, in the counter affidavit the opposite parties reiterating the proceedings taken before CAT as also this Court on earlier occasions, raised objection for consideration of the case of the petitioners that “the bulk nature of engagement of substitutes was altogether given a full stop under the Khurda Road Division from the date of cancellation of Notification dated 13.08.1990 vide Notice dated 22.01.1999” (sic.). It is stated that aggrieved by such decision, the “applicants had earlier filed OA W.P.(C) No.17312 of 2018 Page 18 of 34 No.256 of 2005 and OA Nos.336 to 483 of 2005 with a prayer to direct the respondents for engagement as substitutes in various posts in different Organisations in Khurda Road Division”. In the said cases the CAT while disposing passed the following Order on 08.06.2005: “In the aforesaid premises, this case is disposed of granting liberty to the applicants to individually represent their cases before the respondents; provided the applicants to make their representations by the end of June, 2005 and the Respondents should give due consideration to the grievances of the applicants keeping in mind the direction dated 16.04.2004 of the Tribunal rendered in OA No.520 of 2001.” 3.1. It is stated by the opposite parties at paragraph 9 of the counter affidavit that the case of 20 candidates were not considered on the basis of direction issued by the learned Tribunal so also this Court, but on the basis of their applications made in August, 2009, the General Manager, East Coast Railway, Bhubaneswar has considered their cases exercising his discretionary power conferred upon him under the Railway Rules, circulated vide RBE Nos.185/92 and 116/2009. 3.2. Having stated so, the opposite parties have asserted that the petitioners are fence sitters and the relief claimed by the applicants in OA No.520 of 2001 could not be granted to these petitioners. Hence, prayed for dismissal of the writ petition. W.P.(C) No.17312 of 2018 Page 19 of 34 HEARING OF WRIT PETITION BEFORE THIS COURT: 4. This matter was on board today under the heading “Admission”. It is conceded by the counsel for the respective parties that the pleadings have been completed and can be disposed of on the narrow compass whether the petitioners are considered to be “fence sitters” and thereby no relief can be extended to them as is extended to the applicants in OA No.520 of 2001. Therefore, this Court heard Ms. Saswati Mohapatra, learned Advocate for the petitioners; Sri Biswajit Maharana, learned Central Government Counsel for the opposite parties. SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES: 5. Ms. Saswati Mohapatra, learned Advocate for the petitioners urged that the opposite parties in their counter affidavit clearly admitted that the CAT has passed order on 08.06.2005 in OA No.256 of 2005 and OA Nos.336 to 483 of 2005 to the effect that the opposite parties were required to give due consideration to the grievances of the applicants keeping in mind the direction contained vide Order dated 16.04.2004 of the Tribunal rendered in OA No.520 of 2001. It has also been stated by the opposite parties at paragraph 4(O) of the counter affidavit that said decision of the CAT being carried to this Court in W.P.(C) No.8814 of 2004, the same came to be dismissed on 19.11.2010. W.P.(C) No.17312 of 2018 Page 20 of 34 5.1. It is strenuously contended by Ms. Saswati Mohapatra, learned Advocate that the petitioners have been diligently pursuing the matter before different for and fighting for their cause, yet the CAT while disposing of the matter in O.A. No.260/430/2016 on 19.03.2018 being swayed away by the averment of the opposite parties proceeded to dismiss the application on the ground that the petitioners were “fence sitter”, which is beyond evidence on record. The finding of fact being perverse, this Court has the jurisdiction under Article 226/227 of the Constitution of India to entertain this writ petition and pass appropriate orders. 6. Sri Biswajit Maharana, learned Central Government Counsel for the Union of India appearing for the opposite parties led his argument by contending that the averments contained in counter affidavit is very clear and need no reiteration. The petitioners have been given due consideration but due to withdrawal of Notification dated 13.08.1990 their case could not be considered. DISCUSSIONS AND ANALYSIS: 7. Going through the records it is revealed that the petitioners have persistently been agitating their cause before this Court as also the Tribunal. During the course of hearing both the counsel conceded that the petitioners have been diligently pursuing their respective causes. This fact is ascertained from the counter W.P.(C) No.17312 of 2018 Page 21 of 34 affidavit. It has been conceded by the opposite parties that the “applicants had earlier filed OA No.256 of 2005 and OA Nos.336 to 483 of 2005 with a prayer to direct the respondents for engagement as substitutes in various posts in different Organisations in Khurda Road Division” and the CAT disposed of said cases on 08.06.2005 reserving liberty to the petitioners to individually represent their cases before the railway authorities and on such representation being made their cases would be considered by “keeping in mind the direction dated 16.04.2004 of the Tribunal rendered in OA No.520 of 2001.” Sri Biswajit Maharana, learned Central Government Advocate did not dispute the contention of Ms. Saswati Mohapatra, learned Advocate that the opposite parties at paragraph 4(O) of the counter affidavit have admitted that said decision of the CAT being carried to this Court in W.P.(C) No.8814 of 2004, the same came to be dismissed on 19.11.2010. Therefore, this Court is of the firm opinion that the CAT has proceeded on an erroneous premise that the petitioners are fence sitters so that they have been agitating stale claim. Impropriety it is on the part of the CAT to sit over the matter which has already attained finality. 7.1. It is also fact found asserted by the opposite parties at paragraph 9 of the counter affidavit that the case of 20 candidates were not considered on the basis of direction W.P.(C) No.17312 of 2018 Page 22 of 34 issued by the learned Tribunal so also this Court, but on the basis of their applications made in August, 2009, and the General Manager, East Coast Railway, Bhubaneswar has considered their cases “exercising his discretionary power conferred upon him under the Railway Rules, circulated vide RBE Nos.185/92 and 116/2009”. Such a stance of the opposite parties is stated by Ms. Saswati Mohapatra, learned counsel for the petitioner to be directly in conflict with the Order dated 08.06.2005 passed by the CAT in O.A. No.256 of 2005 and O.A. No.336 to 483 of 2005 wherein it was directed to consider the grievance of the petitioners keeping in mind the direction dated 16.04.2004 of the CAT in O.A. No.520 of 2001 and such order has been considered by this Court in W.P.(C) No.8814 of 2004 vide Order dated 17.03.2006. This Court protected the petitioners by granting liberty to approach the authority concerned and observed that “opposite parties 1 to 20 shall also be allowed to apply therein along with the outsiders, in case, they move applications pursuant to the same mentioning that they were applicants had applied for in respect of the earlier notification dated 13.08.1999 inviting applications for the same purpose. The case of those who have become over-age shall be considered for relaxation”. 7.2. Such being the position, it cannot be construed that the present claim is not “live claim”. This Court is of the W.P.(C) No.17312 of 2018 Page 23 of 34 considered view that the approach of the CAT is not in consonance with the material available on record and the finding that “since cause of action for the present applicants had arisen two decades back such a matter cannot be admitted to be adjudicated at this distance of time” is perverse. 8. With regard to fact regarding petitioners being not parties in the earlier O.As., on which the CAT based its conclusion and thereby dismissed the original application cannot be held to be tenable inasmuch as during the course of hearing today, Sri Biswajit Maharana, learned Advocate for the opposite parties did not dispute the contention of Ms. Saswati Mohapatra, learned Advocate that the petitioners have been participating in the proceedings before this Court as well as the CAT time and again. 9. The Hon’ble Supreme Court of India stated in Orissa Administrative Tribunal Bar Association Vrs. Union of India, (2023) 6 SCR 731 as follows: “The effect of Section 28 of the Administrative Tribunals Act, therefore, was that appeals from the OAT lay directly to the Supreme Court under Article 136 of the Constitution. However, this changed with the decision of this Court in L. Chandra Kumar Vrs. Union of India (1997) 3 SCC 261. In its decision in that case, this Court inter alia ruled that: W.P.(C) No.17312 of 2018 Page 24 of 34 a. Clause 2(d) of Article 323-A and clause 3(d) of Article 323-B were unconstitutional to the extent that they excluded the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32 of the Constitution; b. Section 28 of the Administrative Tribunals Act was unconstitutional as were ‘exclusion of jurisdiction’ clauses in all other legislation enacted under Articles 323-A and 323- B; c. The jurisdiction conferred upon the High Courts under Articles 226 and 227 and upon the Supreme Court under Article 32 of the Constitution form a part of the basic structure of the Constitution; and d. Other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. As a consequence of this decision, challenges under Article 226 of the Constitution to the decisions rendered by the SATs lay to Division Benches of the respective High Courts within whose jurisdiction the SATs operated. The Supreme Court’s jurisdiction could be invoked under Article 136 against the decisions of the High Courts.” 9.1 In Union of India Vrs. P. Gunasekaran, AIR 2015 SC 545, the Hon’ble Supreme Court of India propounded the following guidelines: “The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether: a. the enquiry is held by a competent authority; W.P.(C) No.17312 of 2018 Page 25 of 34 b. the enquiry is held according to the procedure prescribed in that behalf; c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence. Under Article 226/227 of the Constitution of India, the High Court shall not: (i). re-appreciate the evidence; (ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii). go into the adequacy of the evidence; (iv). go into the reliability of the evidence; (v). interfere, if there be some legal evidence on which findings can be based. W.P.(C) No.17312 of 2018 Page 26 of 34 (vi). correct the error of fact however grave it may appear to be; (vii). go into the proportionality of punishment unless it shocks its conscience.” 9.2 In the case of State of Andhra Pradesh Vrs. S. Sree Rama Rao, AIR 1963 SC 1723, the Hon’ble Supreme Court made the following observations: “The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent Officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or; where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the W.P.(C) No.17312 of 2018 Page 27 of 34 departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.” 9.3 Pertinent here to notice the case of Lalit Popli Vrs. Canara Bank, (2003) 3 SCC 583, wherein the Hon’ble Supreme Court of India has made following observation: “17. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.” 9.4 The Hon’ble Supreme Court in Amarendra Kumar Pandey Vrs. Union of India, 2022 LiveLaw (SC) 600 summarised the scope of judicial review as follows: “31. When we say that where the circumstances or material or state of affairs does not at all exist to form an opinion and the action based on such opinion can be quashed by the courts, we mean that in effect there is no evidence whatsoever to form or support the opinion. The distinction between insufficiency or inadequacy of evidence and no evidence must of course be borne in mind. A finding based on no evidence as opposed to a finding which is merely against the weight of the evidence is an W.P.(C) No.17312 of 2018 Page 28 of 34 abuse of the power which courts naturally are loath to tolerate. Whether or not there is evidence to support a particular decision has always been considered as a question of law. [See Reg. Vrs. Governor of Brixton Prison, Armah, Ex Parte, (1966) 3 WLR 828 at p. 841]. 32. It is in such a case that it is said that the authority would be deemed to have not applied its mind or it did not honestly form its opinion. The same conclusion is drawn when opinion is based on irrelevant matter. [See Rasbihari Vrs. State of Orissa, AIR 1969 SC 1081]. 33. In the case of Rohtas Industries Ltd. Vrs. S.D. Agarwal and another, AIR 1969 SC 707, it was held that the existence of circumstances is a condition precedent to form an opinion by the Government. The same view was earlier expressed in the case of Barium Chemicals Ltd. and another Vrs. Company Law Board and others, AIR 1967 SC 295. 34. Secondly, the Court can inquire whether the facts and circumstances so found to exist have a reasonable nexus with the purpose for which the power is to be exercised. In other words, if an inference from facts does not logically accord with and flow from them, the Courts can interfere treating them as an error of law. [See Bean Vrs. Doncaster Amalgamated Collieries, (1944) 2 All ER 279 at p. 284]. Thus, this Court can see whether on the basis of the facts and circumstances found, any reasonable man can say that an opinion as is formed can be formed by a reasonable man. That would be a question of law to be determined by the Court. [See Farmer Vrs. Cotton’s Trustees, 1915 AC 922]. Their Lordships observed: W.P.(C) No.17312 of 2018 Page 29 of 34 “*** in my humble judgment where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only.” [See also Muthu Gounder Vrs. Government of Madras, (1969) 82 Mad LW 1]. 35. Thirdly, this Court can interfere if the constitutional or statutory term essential for the exercise of the power has either been misapplied or misinterpreted. The Courts have always equated the jurisdictional review with the review for error of law and have shown their readiness to quash an order if the meaning of the constitutional or statutory term has been misconstrued or misapplied. [See Iveagh (Earl of) Vrs. Minister of Housing and Local Govt., (1962) 2 QB 147; Iveagh (Earl of) Vrs. Minister of Housing and Local Govt. (1964) 1 AB 395]. 36. Fourthly, it is permissible to interfere in a case where the power is exercised for improper purpose. If a power granted for one purpose is exercised for a different purpose, then it will be deemed that the power has not been validly exercised. If the power in this case is found to have not been exercised genuinely for the purpose of taking immediate action but has been used only to avoid embarrassment or wreck personal vengeance, then the power will be deemed to have been exercised improperly. [See Natesa Asari Vrs. State of Madras, AIR 1954 Mad 481]. 37. Fifthly, the grounds which are relevant for the purpose for which the power can be exercised have not been considered or grounds which are not relevant and yet are considered and an order is W.P.(C) No.17312 of 2018 Page 30 of 34 based on such grounds, then the order can be attacked as invalid and illegal. In this connection, reference may be made to Ram Manohar Vrs. State of Bihar, AIR 1966 SC 740; Dwarka Das Vrs. State of J. and K., AIR 1957 SC 164 at p. 168 and Motilall Vrs. State of Bihar, AIR 1968 SC 1509. On the same principle, the administrative action will be invalidated if it can be established that the authority was satisfied on the wrong question: [See (1967) 1 AC 13].” CONCLUSION & DECISION: 10. Ms. Saswati Mohapatra, learned Advocate for the petitioners laid emphasis on the decision rendered vide Judgment dated 17.03.2006 delivered by this Court in W.P.(C) No.8814 of 2004 to indicate that this Court in the case of Union of India Vrs. Trilochan Sahu & Others, wherein challenge was laid to Order dated 16.04.2004 of the CAT passed in O.A. No.520 of 2001, made observation to the effect that “in case the order of the Tribunal is implemented, some of the applicants who have become over-aged would not be considered due to age bar unless a direction is issued to consider their cases for relaxation in the upper age limit”. Therefore, in the very same Judgment this Court held that “the impugned Judgment and Order passed by the Tribunal is liable to be modified to the extent as directed below”. Thus, she claimed that three of the persons, with whom the present petitioners were sailing on the same boat throughout, are given the engagement as “substitutes”. W.P.(C) No.17312 of 2018 Page 31 of 34 Such action of the authorities concerned is urged to be arbitrary, whimsical and excess exercise of discretion vested in the authority attracting vice of Article 14 of the Constitution of India. 10.1 It may be noteworthy to notice that in Ravi Verma & Others Vrs. Union of India & Others, 2018 SCC OnLine SC 3860, in the context of discriminatory treatment in regularization of service, the Hon’ble Supreme Court of India has been pleased to observe as follows: “In view of the aforesaid decision, the circulars and regularization of the similarly situated employees at other places and various recommendation that were made the services of the appellants ought to have been regularized in the year 2006; discriminatory treatment has been meted out to them. As per the decision of State of Karnataka Vrs. Uma Devi (2006) 4 SCC 1, they were entitled to regularization of services; they did not serve under the cover of court’s order. Illegality has been committed by not directing regularization of services.” 10.2 It may also be taken note of the decision of Hon’ble Supreme Court of India in the case of Raman Kumar & Others Vrs. Union of India & Others, 2023 LiveLaw (SC) 520, wherein the following was the observation: “5. 16 persons out of the remaining 30 employees filed contempt petition(s) alleging that the respondent(s) / department(s) are not regularizing the services of the appellants, thereby committing contempt of Court. W.P.(C) No.17312 of 2018 Page 32 of 34 6. It appears that, before the High Court, an affidavit was filed stating therein that the services of the appellants could not be regularized since the posts were not available. On this statement the contempt petition has been filed. *** 8. Indisputably, the appellants herein have completed service of more than ten years. Even this Court in the case of Ravi Verma and Others v. Union of India and Others (Civil Appeal No(s).2795-2796 of 2018) decided on 13.03.2018 [2018 SCC OnLine SC 3860] found that the act of regularizing the services of some employees and not regularizing the services of the others is discriminatory and violative of Article 14 of the Constitution of India. *** 10. We are not inclined to accept the submission on behalf of the respondents. When the Chief Commissioner of Income Tax has himself found that 65 persons were entitled to be regularized, the act of regularizing the services of only 35 employees and not regularizing the services of other employees, including the appellants, is patently discriminatory and violative of Article 14 of the Constitution of India. 11. In that view of the matter, we find that the High Court was in error in not entertaining the contempt petition. However, at this stage, relegating the appellants again to the High Court would unnecessarily cause delay in delivering justice to the appellants. 12. We, therefore, allow the appeal.” W.P.(C) No.17312 of 2018 Page 33 of 34 10.3 It is, therefore, pointed out by Ms. Saswati Mohapatra, learned Advocate by way of filing additional affidavit that one Sri Trilochan Sahoo, the applicant in O.A. No.520 of 2001 and petitioner No.1 in CONTC No.1239 of 2007 have got engagement as “Substitute Station Peon Level-1 with GP 1800/- under CCI/KUR”. She has stressed on the point that the “applicants of O.A. NO.520 of 2001 are identical to O.A. No.256 of 2004 and O.A. No.338 of 2004 to O.A. No.483 of 2004”. In view of Order dated 19.11.2010 passed in W.P.(C) No.8202 of 2005 by this Court observing that “We, therefore, dispose of this writ petition directing the opposite parties-railways to consider the representations of the petitioners in terms of the Order of the learned Tribunal passed in O.A. No.256 of 2005 and 336 to 483 of 2005 within four months from the date of communication of this Order”, the authorities could not have discriminated the present petitioners. 10.4 Though the position has been explicit, this Court is called upon by the parties to this proceeding to delve into examine whether there was any justification for the CAT to hold that the petitioners are “fence sitters” so that they are not entitled to claim the same relief that is extended to similarly situated persons. 10.5 Having perused the record and scrutinized the available material, it is observed that the CAT in passing Order W.P.(C) No.17312 of 2018 Page 34 of 34 dated 19.03.2018 in Original Application being No.260/430/2016 went de hors evidence available on record. The reason assigned by the CAT to repel the contentions of the petitioners cannot be countenanced. 11. With the delineated scope for judicial review as discussed above, this Court is of the considered view that the decision rendered by the Central Administrative Tribunal, Cuttack Bench, Cuttack vide Order dated 19.03.2018 in Original Application being No.260/430/2016 does suffer from infirmity warranting interference. 12. Under aforesaid premises, this Court is, therefore, inclined to quash the Order dated 19.03.2018 passed by the learned Central Administrative Tribunal in Original Application being No.260/430/2016. The matter is, thus, remitted to said Tribunal to hear the petitioners afresh and dispose of the matter on merit in accordance with law by considering the grievance of the petitioners. Accordingly, the writ petition stands disposed of in the above terms, but in the circumstances, there shall be no order as to costs. (MURAHARI SRI RAMAN) JUDGE DR. B.R. SARANGI, ACJ. I agree. (DR. B.R. SARANGI) ACTING CHIEF JUSTICE High Court of Orissa, Cuttack The 5th February, 2024//Aswini/MRS/Laxmikant Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: PERSONAL ASSISTANT Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 09-Feb-2024 18:24:18 Signature Not Verified "