Central Administrative Tribunal - Chandigarh
Unknown vs Chief Executive Officer on 24 February, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(Reserved on 03.02.2016)
OA No. 418/JK/2012 Date of decision- 24.02.2016
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MR. UDAY KUMAR VARMA, MEMBER (A)
Sh. Sanjay Bhat S/o Late Sh. R.K. Bhat, R/o H.No. 70, Lower Roopnagar, Jammu. UDC in the office of Dy. Director (Engg.), All India Radio, Leh (Ladakh).
APPLICANT
BY: Self.
VERSUS
1. Chief Executive Officer, Prasar Bharati Board, 2nd Floor, PTI Building, Sansad Marg, New Delhi-110001.
2. Director General All India Radio, Akashvani Bhavan Sansad Marg, New Delhi-110001
3. Additional Director General (Training), Staff Training Institute (Programme), All India Radio, Radio Colony, Kingsway Camp, Delhi-110009.
RESPONDENTS
BY ADVOCATE: Sh. Harshwardhan Gupta.
ORDER
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J):-
The applicant has filed the present petition, where he seeks invalidation of the result declared in the month of August, 2011 of department examination for promotion to the post of Assistant (HC/Acctt/SSK)of the vacancy for the year 2008-2009. He further sought issuance of direction to the respondents to revaluate the answer sheets.
2. The brief facts which led to filing of the present petition are that the applicant who was working with respondent department appeared in a departmental examination against vacancy for the year 2008-09 for the promotion to the post of Assistant (HC/Acctt/SSK) which was held in the month of Feb, 2011. The result of which was declared in the month of August, 2011, where he could not successes. Feeling dissatisfied with the result, he moved a representation to the respondents dated 26.9.2011 with a request to revaluate Paper I of the examination. When the respondents did pay any yield to his request, then he submitted second representation. Lastly, he moved a representation on 21.12.2011 informing the respondents either to take a decision on his pending representations otherwise; he will force to knock the door of Court of law. Hence, the present O.A.
3. The applicant who is present in person submitted that action of the respondents in not revaluating his answer sheet is totally illegal and arbitrary, thus, direction may be issued to them to revaluate the answer sheets.
4. Upon notice, the respondents contested the claim of the applicant by filing written statement and given their entire resistance in para 2. Which reads as below:- 2. That in reply to the facts of the case. It is respectfully submitted that the departmental examination for the year 2008-2009 for the promotion to the post of Assistant (HC/Acctt/SSK) was conducted in Feb, 2011 and result of which was declared in the month of August 2011. But it is pertinent of mention here that the examination for promotion to the above cadre was conducted for 10 years i.e. from 1999-2000 to 2008-2009 not for single year of 2008-2009. The process of finalization of result viz. evaluation of answer sheets/books its completion, collection of ACRs and their evaluation for preparing the final result, was time consuming. The two months period for declaration for result is ideally meant for one year examination where as in instant case the examination were for 10 years and as suh the time taken for declaration of result is appropriate. It is admitted that the applicant requested for re-evaluation of paper I for the year 2008-2009. In this regard, it is submitted that there is no provision in the scheme of examination for promotion for UDC to the cadre of HC/ACCTT for revaluation of answer books, in the absence of which the decision to allow re-evaluation does not seem to be in conformity with the provision of the scheme. Besides, an examine has no locus standi to question the wisdom of examiner in awarding the marks. It is submitted that the Honble Apex Court of the country has already law laid down in its judgment dated 17.07.1984 (AIR 1984-SC-1543 titled Maharashtra State Board of Secondary and higher Secondary education and another Vs. Paritosh Bhupesh Kurmarsheth) etc has inter-alia held that the principles of natural justice cannot be extended beyond reasonable and rational limits and cannot be carried into such absurd lengths as to make it necessary that candidates who have taken a public examination should be allowed to participate in the process of evaluation of their performances or to verify the correctness of the evaluation made by the examiners by themselves conducting an inspection of the answer books and determining whether there has been a proper and fair valuation of the answers by the examiners. It is further submitted that in response to the representations of the applicant received by the respondets. The applicant has been informed vide endorsement No. :- STI (P)/23/(3)/2012-DE/HC/AC dated 29.05.2012. The allegation in respect of answer to question no. 3 of paper I has been treated as wrong amounting to partiality in awarding the marks is denied being baseless. The fact remains is that the answer of applicant to the question has been evaluated correctly but even though the answer is factually incorrect still the valuation officer has awarded him 5 marks out of 20. The applicant has also alleged that his answer to question No. 19B09III0 of paper I (b) (iii) of paper I has been treated as wrong. This allegation is also denied and to question the wisdom of the examiner, it is also denied the allegation alleged in this para that undue benefits has been given to the candidates for wrong answer is baseless.
5. In support of the above, Sh. Gupta, Sr. CGSC for the respondents vehemently argued that there is no provision under rules for revaluating answer sheets, thus, in terms of the judgment of passed by the Honble Supreme Court in case of H.P. Public Service Commission Vs. Mukesh Thakur & Another 2010(4) AWC 3798SC, this court cannot ordered revaluation of answer sheets, therefore the petition be dismissed being devoid of merit.
6. We have heard the applicant who appeared in person and Sh. Gupta, Sr. CGSC for the respondents and have perused the pleadings on record with their able assistance.
7. During the course of the arguments the applicant was asked to show any provision in rules which permit revaluation of the answer sheets. He admitted that there is no such provision. He was further asked to inform as to whether any question or any part of it remained unchecked to which he replied that there is no such question or part of a question which has not been evaluated.
8. The solitary question which is to be adjudicate as to whether revaluation of answer-sheet is permissible in absence of any rule formulation.
9. The question posed before us is no more res-integra. As late in 80s the Lordships have considered the similar poser in case of Maharashtra State Board of Secondary and Higher Secondary Education & Another Vs. Paritosh Bhupesh kumar Sheth & Ors. 1984 (4) SCC 27 and has held that permitting re-evaluation would lead to uncertainty regarding result of competitive examination for indefinite period of time and that such course shall be against public interest. It was held to the following effect:-
28. As pointed out by a Constitution Bench of this Court in Fatehchand Himmatlal and Ors. v. State of Maharashtra, etc. "the test of reasonableness is not applied in vacuum but in the contest of life's realities", 1977 (2) SCR 828. If the principle laid down by the High Court is to be regarded as correct, its applicability cannot be restricted to examinations conducted by School Educational Boards alone but would extend even to all competitive examinations conducted by the Union and State Public Service Commissions. The resultant legal position emerging from the High Court Judgment is that every candidate who has appeared for any such examination and who is dissatisfied with his results would, as an inherent part of his right to 'fair play' be entitled to demand a disclosure and personal inspection of his answer scripts and would have a further right to ask for revaluation of his answer papers. The inevitable consequence would be that there will be no certainty at all regarding the results of the competitive examination for an indefinite period of time until all such requests have been compiled with and the results of the verification and revaluation have been brought into account.
29. Far from advancing public interest and fair play to the other candidates in general, any such interpretation of the legal position would be wholly defeasive of the same. As has been repeatedly pointed out by this court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court while deciding the instant case.
10. Following the said judgment, in Pramod Kumar Srivastava Vs. Chairman, Bihar Public Service Commission , 2004(6) SCC 174, they held to the following effect :-
7. We have heard the appellant (writ-petitioner) in person and learned counsel for the respondents at considerable length. The main question which arises for consideration is whether the learned Single Judge was justified in directing re-evaluation of the answer-book of the appellant in General Science paper. Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for re-evalution of his answer-book. There is a provision for scrutiny only wherein the answer- books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totaling of marks of each question and noting them correctly on the first cover page of the answer-book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for re-evaluation of answer- books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his marks. This question was examined in considerable detail in Maharashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupesh Kurmarsheth and others AIR 1984 SC 1543. In this case, the relevant rules provided for verification (scrutiny of marks) on an application made to that effect by a candidate. Some of the students filed writ petitions praying that they may be allowed to inspect the answer-books and the Board be directed to conduct re-evaluation of such of the answer-books as the petitioners may demand after inspection. The High Court held that the rule providing for verification of marks gave an implied power to the examinees to demand a disclosure and inspection and also to seek re-evaluation of the answer-books. The judgment of the High Court was set aside and it was held that in absence of a specific provision conferring a right upon an examinee to have his answer-books re-evaluated, no such direction can be issued. There is no dispute that under the relevant rule of the Commission there is no provision entitling a candidate to have his answer-books re-evaluated. In such a situation, the prayer made by the appellant in the writ petition was wholly untenable and the learned Single Judge had clearly erred in having the answer-book of the appellant re-evaluated.
8. Adopting such a course as was done by the learned Single Judge will give rise to practical problems. Many candidates may like to take a chance and pray for re-evaluation of their answer-books. Naturally, the Court will pass orders on different dates as and when writ petitions are filed. The Commission will have to then send the copies of individual candidates to examiners for re-evaluation which is bound to take time. The examination conducted by the Commission being a competitive examination, the declaration of final result will thus be unduly delayed and the vacancies will remain unfilled for a long time. What will happen if a candidate secures lesser marks in re-evaluation? He may come forward with a plea that the marks as originally awarded to him may be taken into consideration. The absence of clear rules on the subject may throw many problems and in the larger interest, they must be avoided.
11. In President, Board of Secondary Education, Orissa Vs. D.Suvankar, 2007 (1) SCC 603, the Honble Supreme Court held that the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It was held to the following effect:-
5. The Board is in appeal against the cost imposed. As observed by this Court in Maharashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupesh Kurmarsheth. etc. (AIR 1984 SC 1543), it is in the public interest that the results Public examinations when published should have some finality attached to them. If inspection, verification in the presence of the candidates and revaluation are to be allowed as of right, it may lead to gross and indefinite uncertainty, particularly in regard to the relative ranking etc. of the candidates, besides leading to utter confusion on account of the enormity of the labour and time involved in the process. The Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It would be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities end grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to pragmatic one were to be propounded. In the above premises, it is to be considered how far the Board has assured a zero defect system of evaluation, or a system which is almost fool-proof.
Award of marks by an Examiner is to be fair, and considering the fact that revaluation is not permissible under the Statute, the Examiner has to be careful, cautious and has a duty to ensure that the answers are properly evaluated. No element of chance or luck should be introduced. An examination is a stepping-stone on career advancement of a student. Absence of a provision for revaluation cannot be a shield for the Examiner to arbitrarily evaluate the answer script. That would be against the very concept for which revaluation is impermissible.
12. Recently, in H.P. Public Service Commission Vs. Mukesh Thakur & Another (supra), they retreated their earlier view and held that in absence of any rules or instructions, revaluation of answer-sheet is not permissible. The relevant observation to this effect reads as under:-
19. In view of the above, it was not permissible for the High Court to examine the question paper and answer sheets itself, particularly, when the Commission had assessed the inter-se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for respondent no.1 only. It is a matter of chance that the High Court was examining the answer sheets relating to law. Had it been other subjects like physics, chemistry and mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court.
20. Therefore, we are of the considered opinion that such a course was not permissible to the High Court.
Xxx xxx xxx xxx xxx
27. Thus, the law on the subject emerges to the effect that in absence of any provision under the Statute or Statutory Rules/Regulations, the Court should not generally direct revaluation.
13. In the light of the above facet, we see no reason to issue any direction to the respondents as prayed. Consequently, the applicant fails and petition is dismissed being devoid of merit. No other point argued. No order as to costs.
(UDAY KUMAR VARMA) (SANJEEV KAUSHIK)
MEMBER (A) MEMBER (J)
Dated: 24.02.2016
`jk
1
OA No. 418/JK/2012
(Sanjay Bhat Vs. UOI & Ors.)