Central Administrative Tribunal - Cuttack
M Sahu vs D/O Post on 9 August, 2024
1 O.A.No. 260/00273 of 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00273 of 2019
Reserved on 02.08.2024 Pronounced on 09.08.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Mitrabhanu Sahu, aged about 49 years, S/o.- Late
Chakradhar Sahu, resident of Vill/PO - Satkuta, Via-
Banaigarh, PS - Banaigarh, Dist- Sundargarh, Odisha, PIN-
770038, presently working as Overseer of Mails,
Banaigarh Sub-division, Dist - Sundargarh, PIN - 770038.
......Applicant
VERSUS
1. Union of India, represented through its Secretary cum
Director General of Posts, Dak Bhawan, Sansad Marg, New
Delhi - 110001.
2. Chief Post Master General, Odisha Circle, At/P.O.
Bhubaneswar, Dist.:- Khurda, Odisha - 751001.
3. Senior Superintendent of Post Offices, Sundargarh
Division, Sundargarh, PIN -770001.
4. Satyanarayan Mahanta, Postal Assistant, Rourkela -2 SO,
Dist - Sundargarh, PIN - 769002.
......Respondents
For the applicant : Mr. C.P.Sahani, Counsel
For the respondents: Mr. M.R.Mohanty, Counsel
2 O.A.No. 260/00273 of 2019
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
Instant OA has been filed by the applicant seeking to quash the revised select list dated 25.02.2019 (A/5) in respect of the selection against the vacancies of Sundargarh Division for the year 2018 with further direction to the respondents to promote him to the cadre of PA/SA from the date of promotion of his juniors.
1.1 The case of the applicant, in brief, is that vide notification dated 25.10.2018 issued by Respondent No.2 applications were invited from the eligible Postman cadre employee to fill up the post of PA/SA through LDCE from the eligible Postman candidates for the vacancy year 2016-17, 2017-18 and 2018-19. As per advertisement, written examination consists of two papers and qualifying marks for unreserved category in each paper is 40%. Applicant, an unreserved category candidate, having fulfilled all eligibility conditions applied and appeared at the written examination held on 09.12.2018. Result of the said examination was declared on 21.02.2019 (A/4) where the applicant was declared successful having secured 42 and 52 marks respectively in the 1st and 2nd papers. Thereafter, a revised result was published vide notification dated 25.02.2019 (A/5) where his name 3 O.A.No. 260/00273 of 2019 was not reflected and in his place one Sri Satyanarayan Mahanta (Respondent No.4) was selected. Applicant preferred representation on 28.02.2019 against deletion of his name. Respondent No.2 vide order dated 04.03.2019 rejected his representation stating as under:
"With reference to your representation dated 28.02.2019 regarding above mentioned subject, I am directed to intimate that you had been selected as PA under Sundargarh Division for the vacancy year 2018 by securing 94 total marks vide this office letter of even number dated 21.02.2019, but subsequently Directorate has issued the minimum qualifying marks for the aforesaid examination vide its letter No. A-34012/05/2018-DE dated 22.02.2019 (copy enclosed) wherein minimum qualifying marks for both Paper -I and Paper - II for UR candidates is mentioned as 38.
Shri Satyanarayan Mahanta, Postman, Rourkela H.O under Sundargarh Division who was declared failed initially for securing 38 marks in Paper-I against minimum requirement of 38.4 pass marks, has passed subsequently on receipt of above said instructions from the Directorate and his total secured mark is 100.
Hence, Shri Satyanarayan Mahanta is selected for the year 2018 vide this office letter of even number dated 25.02.2019 by replacing you, as total mark secured by Shri Satyanarayan Mahanta is more than you.
However, your name has been included in the surplus qualified candidates list and you have to submit your choice of Divisions where vacancies exist and the vacancy years for which you are eligible to the Sr. Supdt. of Post Offices, Sundargarh Division. On receipt of options/choice of Divisions from all the surplus qualified candidates through their respective Divisional heads, further allotment will be made according to their eligibility for the recruitment year, merit and choice of Division opted by them. The choice of 4 O.A.No. 260/00273 of 2019 divisions from the surplus qualified candidates has already been sought for from all the Divisional heads of this circle vide this office letter of even number dated 25.02.2019".
(emphasis added) 1.2 Being aggrieved, applicant has filed this OA with the relief as aforesaid.
2. Although, notice was issued to the private respondent No.4, none appeared on his behalf and no counter has also been filed.
3. Official Respondents by filing counter have opposed the prayer of the applicant. It is submitted by the respondents that Office of the Chief Postmaster General, Odisha Circle, Bhubaneswar vide letter dated 25.10.2018 issued notification for conducting LDCE for promotion to the cadre of PAs/SAs from Postman/Mail Guard/Dispatch Rider and MTS cadre for the vacancy years 2016-17, 2017-18 and 2018 (01.04.2018 to 31.12.2018). Applicant, being eligible for the vacancy year 2016-17 and 2018 applied and appeared at the examination held on 09.12.2018. Postal Directorate vide its letter No.A-34012/05/2018- DE dated 18.02.2019 issued the Final Answer Key of the examination and instructed that "OMR answer sheets may be evaluated by 25 th of February, 2019 and result may be declared by 26th of February, 2019 positively. As per Directorate letter No. 60-10/2011-SPB-1 dated 5 O.A.No. 260/00273 of 2019 10.03.2011 (R/1), the Qualifying Marks for above said exam is 40% in each paper for General Category. The total marks for Paper-I (LGP/LGS), Paper - II (LGP) and Paper - III (LGS) is 100 each. However, due to some ambiguity in questions or having no definite answers, in the Final Answer Key, two questions in Paper I and three each questions in Paper-II and Paper-III (LGP/LGS) were deleted. Consequently, the maximum marks in each paper and qualifying marks were changed. In Paper-I maximum marks were 96 and hence qualifying 40% marks was 38.4. In Paper-II and Paper-III maximum marks were 94 and hence qualifying 40% marks were 37.6. 3.1 Result of the examination, in question, was declared vide this office letter No. RE/30-23/2018-19 (PA/SA) dated 21.02.2019 (A/4) wherein the applicant was declared successful under UR category of Sundargarh Division for the year 2018. He had secured total 94 marks, in Paper -1 he got 42 marks and in Paper-II he scored 52 marks. 3.2 Subsequently, clarification was received from the Directorate vide letter dated 22.02.2019 (A/5) where the minimum qualifying marks for the purpose of evaluation of both papers were shown as under:
Paper(s) Maximum Marks Qualifying Marks
6 O.A.No. 260/00273 of 2019
after deletion of OC/UR (40%) SC/ST (33%)
questions
Paper-I 96 38 (One time 30 (One time
(LGP/LGS) relaxation relaxation
Paper-II 94 38 (One time 30 (One time
(LGP) relaxation relaxation
Paper-III 94 38 (One time 30 (One time
(LGS) relaxation relaxation
3.3 Accordingly, result of examination was revised and declared vide
Letter No. RE/30-23/2018-19 (PA/SA) dated 25.02.2019 (A/6). Since the qualifying marks for Paper I (LGP/LGS) was reduced to 38 from 38.4, one Shri Satyanarayan Mahanta, Postman, Rourkela H.O, who was a candidate of the above said examination under Sundargarh Division and had secured total 100 marks (in Paper -1 38 marks and in Paper-II 62 marks ) and was earlier declared as failed for securing 38 marks in Paper-I against required qualifying marks of 38.4, was selected for appointment as PA under UR category in Sundargarh Division vide letter dated 25.02.2019 replacing the applicant since he has secured 100 marks in total as against the applicant's 94 marks. Representation dated 28.02.2019 preferred against the letter dated 25.02.2019 was duly considered and reply was communicated to the applicant vide letter dated 04.03.2019 (A/8) intimating the reasons as aforesaid. Hence, claiming that there was no flaw in the decision making process, respondents have prayed for dismissal of this OA.
7 O.A.No. 260/00273 of 2019
4. Considered the submissions advanced by the respective parties and perused the materials placed on record.
5. Facts of the matter is that as per the recruitment rules, there were 100 marks for Paper-I and qualifying marks were 40%, i.e. 40 marks, however, due to certain ambiguity, two questions were deleted in Paper-I and thereafter, the maximum marks remained 96 and the qualifying 40% marks was 38.4. The applicant having secured 42 marks in Paper-I and 52 marks in Paper-II, total of 94 marks, was declared successful under UR category vide letter dated 21.02.2019. However, after clarification from the Directorate vide letter dated 22.02.2019, the minimum qualifying for Paper-I was rounded off to 38 from 38.4, which resulted into qualification of private Respondent No.4, viz. Sri Satyanarayan Mahanta. Sri Mahanta had secured 38 marks in Paper-I and 62 marks in Paper-II, i.e. a total 100 marks, and was declared unsuccessful earlier due to non-qualifying in Paper-I but after clarification dated 22.02.2019, he came within the range of qualification and as he had secured 100 marks in toto, i.e. more than the total marks secured applicant (94 marks), he was selected for appointment as PA under UR category in Sundargarh Division vide letter dated 25.02.2019 replacing the applicant. 8 O.A.No. 260/00273 of 2019
6. Now, the issue that arises for determination by this Tribunal as to how far the respondents are justified in issuing the circular dated 22.02.2019 to follow rounding off principle after the game had started and as to how far application of rounding off principle is justified on the face of the law laid down by the Hon'ble Apex Court. In this connection, decisions relied on by the Ld. Counsel for the applicant are discussed herein below:
(i) Maharashtra State Road Transport Corporation Vs Rajendra Bhimrao Mandve, (2001) 10 SCC 51- " the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced."
(ii) K.Manjusree Vs. State of Andhra Pradesh and Anr., (2008) 3 SCC 512-"Changing the rules of the game after the game was played is clearly impermissible.;
(iii) P.K.Ramachandra Iyer Vs. UOI, (1984) 2 SCC 141, Umesh Chandra Shuka Vs. UOI, (1985) 3 SCC 721, Durgacharan Misra Vs. State of Orissa, (1987) 4 SCC 646, Hemani Malhotra Vs. Hogh Curt of Delhi, (2008) 7 SCC 11, and Secretary A.P.Public Service Commission Vs. B.Swapna, (2005) 4 SCC 154 wherein the Hon'ble Apex Court reiterated the view as aforesaid.
7. Insofar as rounding off principle followed by the department is concerned, the decisions relied on by the Ld. Counsel for the applicant are as under:
(i) Orissa Public Service Commission & Anr. Vs. Rupashree Chowdhary and Anr. (2011) 8 SCC 108- "There is no 9 O.A.No. 260/00273 of 2019 power provided in the statute/Rules permitting any such rounding off or giving grace marks so as to bring up a candidate to the minimum requirement. In our considered opinion, no such rounding off or relaxation was permissible. The Rules are statutory in nature and no dilution or amendment to such Rules is permissible or possible by adding some words to the said statutory rules for giving the benefit of rounding off or relaxation."
(ii) Registrar, Rajiv Gandhi University of Health Sciences, Bangalore Vs. G.Hemlatha and Ors, (2012) 8 SCC 568-
"No provision of any statute or any rules framed thereunder has been shown to us, which permits rounding-off of eligibility criteria prescribed for the qualifying examination for admission to the PG course in M.SC (Nursing). When eligibility criteria is prescribed in a qualifying examination, it must be strictly adhered to. Any dilution or tampering with it will work injustice on other candidates. The Division Bench of the High Court erred in holding that learned Single Judge was right in rounding-off of 54.71% to 55% so as to make respondent 1 eligible for admission to PG course. Such rounding-off is impermissible."
(iii) The West Bengal Joint Entrance Examination Board & Ors Vs. Sarit Chakraborty & Ors, Civil Appeal No. 8498 of 2014, SLP(C) No. 35832 of 2012- "There are express guidelines issued by the Board for governing the process of admission in Engineering Colleges. There is no guideline for permitting the principle of rounding-off of marks in order to be made eligible to appear for counseling. In the absence of such a guideline in either the Brochure issued by the Board or in the AICTE Regulations, we are of the considered opinion that the rounding-off of marks could not be permissible. The High Court ought not to have exercised such discretion in light of the express and clear guidelines to the contrary." 10 O.A.No. 260/00273 of 2019
(iv) Hemant Bakolia Vs. State of Madhya Pradesh & ors, (2018) 11 MP CK 0005- "The petitioner is not entitled to rounding of his marks because of the expressed language of the rule requiring "atleast" 50% marks and also for the reason that the rule does not provide for rounding of."
8. We find from the record that qualifying marks, as reflected in the notification, for each paper for General Category candidate is 40% marks, which is also as per the Directorate letter No. 60-10/2011-SPB- 1 dated 10.03.2011 (R/1). Actual pass marks would depend on the total marks for which examination was conducted. In the instant case, since total marks were revised to 96 and 94 subsequently after examination had been conducted, the pass marks of 40%, as per rules, would amount to 38.4 and 37.6. There being no mention of rounding off principle in the notification, issuance of the letter dated 22.02.2019 clarifying that pass marks would be 38 for all papers, boils down to 38% for Paper-I and 40.4% for Paper II and III; as a result prescribing pass percentage as 38% for Paper-I, which is less than to 40% as notified. Hence, through clarification a one time relaxation has been given. The action of the respondents amounts to changing the rule of game after the game had started, which is opposed to the law laid down by the Hon'ble Apex Court in the cases of Rajendra Bhimrao Mandve, 11 O.A.No. 260/00273 of 2019 K.Manjusree, P.K.Ramachandra Iyer (supra). Also, it has been submitted that there is no such mention in the original notification for such relaxation. Similarly, on examination of the case with reference to the law laid down on the question of rounding off, we find that adoption of such procedure is also against the law laid down in the cases of Rupashree Chowdhary, G.Hemlatha and Ors, Sarit Chakraborty, Hemant Bakolia (supra).
9. In view of the facts and law discussed above, we hereby quash the revised select list of Sundargah Division for the year 2018 in respect of selection of private respondent No.4 and remit the matter back to the competent authority to reconsider the matter strictly in accordance with the discussions made above on the basis of the marks secured without following the rounding off principle and intimate the result thereof to the applicant. The entire process be concluded within a period of 60 days from the date of receipt of a copy of this OA.
10. In the result, the OA stands allowed to the extent stated above leaving the parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS