Central Administrative Tribunal - Jabalpur
Alkesh Nagore vs Bharat Sanchar Nigam Ltd on 3 December, 2024
1
(Reserved on 08.11.2024)
CENTRAL ADMINISTRATIVE TRIBUNAL
JABALPUR BENCH, JABALPUR
Original Applications Nos. 200/660/2014 & 200/741/2014
Jabalpur, this Tuesday, the 03rd day of December, 2024
HON'BLE MR. JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE MRS. MALLIKA ARYA, ADMINISTRATIVE MEMBER
1. Manoj Kumar Tiwari, S/o Late S.N. Tiwari, aged about 37 years, R/o
Maharana Pratap Ward, Near BSNL Office, Gadarwara, District - Narsinghpur
487001 (M.P.).
2. Atul Sohani, S/o Shri B.P. Sohani, aged about 32 years, R/o 41, Keshav
Nagar, Near Dal Mill, Khandwa - 450001 (M.P.).
.......Applicants in OA 200/660/2014
1. Alkesh Nagore, aged about 47 years, R/o Behind Utsav Restaurant, Shastri
Ward, Sadar Bazar, Betul - 460001 (M.P.).
2. Smt. Kiran Thakur, W/o Shri Rajesh Thakur, aged about 33 years, R/o 98
(KH), Pratap Nagar, Gali No.10, Shankracharya Ward, Narsinghpur (M.P.) 487001
.......Applicants in OA 741 of 2014
Advocate for the applicant:Ms. Kaushiki Sharma, proxy counsel of Shri Akash
Choudhury
VERSUS
1. Chief Managing Director, Bharat Sanchar Nigam Ltd., BSNL Corporate Office,
Janpath, New Delhi - 110001.
2. Chief General Manager, M.P. Telecom Circle, BSNL Office, Hoshangabad Road,
Bhopal (M.P.) 462003.
3. General Manager (Admn./HR), O/o Chief General Manager, M.P. Telecom
Circle, BSNL Office, Hoshangabad Road, Bhopal (M.P.) 462003.
......Common Respondents
Advocate for the respondents: Shri Sapan Usrethe
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ANUPAM Digitally signed by
ANUPAM MISHRA
Date: 2024.12.04
MISHRA 13:18:50-08'00'
2
ORDER
By Akhil Kumar Srivastava, JM.-
The applicants have filed these Original Applications and have sought for the following reliefs:
"8(i) Summon the entire relevant record from the respondents for its kind perusal; 8(ii) Set-aside the order dated 09.06.2014 (Annexure A/1). 8(iii) Command the respondents to consider the request of the applicants and the respective Union and provide full marks for the discarded/out of syllabus questions and further give full marks for all other anomalous questions for the JTO LICE 2013, has been decided by the expert committee.
8(iv) Consequently command the respondents to review the results of the applicants by adding the marks awarded by the review committee and declare them suitable and further nominate them for Pre-basic Training with all consequential benefits arising thereto;
8(v) Any other order/orders, direction/directions may also be passed. 8(vi) Award cost of the litigation to the applicant."
2. Since the issue involved in both these Original Applications is identical, hence we propose to decide the same by way of a common order. For the purpose of this order, the documents referred in OA 200/600/2014 and the pleadings made therein, has been taken as a leading case.
3. Brief facts of the case are that the applicants are holding the post of TTA in the respondent department. The respondents have notified a selection process for holding promotion through Limited Internal Competitive Examination for promotion to the post of JTO (T) under 35% and 15% quota. The applicants participated in the selection process. As per the result of the examination, the applicant No.1 has secured 48.25 marks and applicant No.2 has achieved 49 marks. Both the applicants have failed to achieve the qualifying marks by getting short of 5.03 and 4.28 marks respectively in Paper I and Paper II.
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ANUPAM Digitally signed by ANUPAM MISHRA Date: 2024.12.04 MISHRA 13:18:50-08'00' 3 3.1 The applicants have stated that there were certain discrepancies in conducting the examination. It has been averred that a total 111 candidates have been declared successful in the examination out of total 155 candidates. The applicants further state that the questions Nos.65, 72, 73 and 98 were out of syllabus questions. Hence, the respondents ought to have awarded full marks for the same. The aforesaid discrepancies were brought to the notice of the BSNL Head Quarter by the respective Union vide representation dated 29.07.2013 (Annexure A-3). The applicants have also preferred their representation against the same but the grievance of the applicants has not been redressed.
4. In their reply, the respondents have stated that the examination was conducted as per the instructions issued by the BSNL Headquarter. The expert committee was constituted by M.P. Telecom Circle in accordance with BSNL HQ letter dated 15.02.2011 (Annexure R-1) comprising qualified officers. The committee found that there were few questions having multiple answer and few questions were out of syllabus. The committee recommended as under:
"i. Six (6) questions were having multiple answers, Committee recommended to provide full marks to all candidates irrespective of the fact whether such questions were attempted by the candidates or not.
ii. Six (6) questions were out of syllabus. Committee recommended that questions may be discarded.
iii. One (1) question was different in Hindi & English version. Committee recommended for full mark to all candidates irrespective of the fact whether such questions were attempted by the candidates or not."Page 3 of 7
ANUPAM Digitally signed by ANUPAM MISHRA Date: 2024.12.04 MISHRA 13:18:50-08'00' 4 4.1 The Limited Internal Competitive Examination is a circle cadre exam and could not be compared with the exam conducted by the other circle in BSNL as the question papers were set by all circle individually. The minimum qualifying marks in the examination was 30% in each part and 37% in aggregate for OC category candidates and 23% in each part and 30% in aggregated for SC/ST candidates. There was negative marking for each wrong answer, 25% of the mark of that question was to be deducted. 4.2 The respondents have further stated that there is no scope for review the points raised by the applicants. Successful candidates have already been sent for pre-basic training w.e.f.11.11.2013, pre-basic-II training w.e.f.02.12.2013 and Phase-I training w.e.f.23.12.2013 to 28.02.2014. They have also completed field training w.e.f.03.03.2014 to 30.03.2014 and posted in concerned SSA w.e.f.31.03.2014 as JTO.
5. The applicants have also filed their rejoinder to the reply filed by the respondents and state that once the expert committee had taken a conscious decision to award full marks for the wrong questions, the rejection of the representation, without considering the aspect as taken up by the expert committee, is unjust and arbitrary.
6. We have heard the learned counsel for the parties and perused the pleadings and the documents available on record.
7. This is the second round of litigation before this Tribunal. Earlier, the applicants have approached this Tribunal by filing Original Application No.309/2014, which was disposed of vide order dated 25.04.2014 with a direction to decide the pending representation of the applicants. In compliance of the said order, the respondents have passed the impugned order dated 09.06.2014 (Annexure A-1) stating as follows:
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ANUPAM Digitally signed by ANUPAM MISHRA Date: 2024.12.04 MISHRA 13:18:50-08'00' 5 "The Hon'ble CAT Jabalpur Bench order dated 25.04.2014 in OA no.200/00309/2014 filed by Shri Manoj Kumar Tiwari and Shri Atul Sohni Vs CMD & others by which Hon'ble CAT has directed respondent no.2 to consider and decide the applicant's representations of Annexure A-4, if not already decided within a period of 60 days from the date of communication of this order.
The OA including the grievance of the applicant and the direction of the Hon'ble CAT Jabalpur in order dated 25.04.2014 received on 13.05.2014 have been gone through in detail. The main issues involved in this OA is that the applicants want to decide their representation as to review the anomalies and provide full marks in that case to all the left examinees and provide justice.
Keeping in view the grievances of the applicants and as per the direction of the Hon'ble CAT, the representation has been examined by the competent authority and it is to inform you that in accordance to BSNL HQ Letter No. 2-3/2011-Rectt-I Dated 15.02.2011, the provisional key was uploaded on the mprintranet portal and representation/feedback was called from the individual/unions. All the representation/feedback were sent to expert committee constituted by M.P. Telecom circle for their comments. The committee submitted its comments on all the representations. The comments were further sent to paper setter. The final answer key was prepared based on the comments from paper setter and Expert committee and result was declared based on final answer key. Total 111 candidates have been declared successful in the examination using same set of question papers out of total 155 appeared candidates.
As mentioned by you in the representation that the full mark may be provided in respect of the question No.65, 72, 73 and 98 as per UP (E) circle final answer key. In this connection you are informed that the JTO LICE is a circle cadre exam hence can not be compared with other circle. There were no representation received in respect of the Question no.73. Representation received against Q.No.65, 72 and 98 were considered/examined by both expert committee and paper setter before arriving at final answer key.
The law is well settled that if there was a discrepancy in framing the question or evaluation of the answer, it was for all the candidates appearing for the recruitment examination and not for unsuccessful candidate only as has been held by the Hon'ble Supreme Court in the matter of H.P. Public Service Commission vs Mukesh Thakur & Anr (AIR 2010 supreme court 2620).
Moreover, the alleged discrepancy in question and its key was rectified and corrective measure were taken by the competent authority before evaluation of the paper. Therefore, request made by you for awarding full marks can not be acceded to."
8. As per the impugned order dated 09.06.2014 (Annexure A-1), the respondents have clearly stated that the expert committee has already taken the corrective measures after receiving the representation of the applicants and Union so far as award of marks to certain questions. It has also been stated that using same set of question papers, total 111 candidates have been declared successful out of 155 candidates. It is not the case of the applicants that they have pointed out the anomalies in question paper when they Page 5 of 7 ANUPAM Digitally signed by ANUPAM MISHRA Date: 2024.12.04 MISHRA 13:18:50-08'00' 6 appeared in the examination. It is only after being unsuccessful, the applicants have agitated their grievance through Union and seeking re-evaluation of their answer script, which is not permissible in law.
9. Learned counsel for the respondents supplied one copy of the order passed by this Tribunal in Original Application No.200/00492/2014 and says that similar controversy has already been resolved by this Tribunal. The operative paragraph of the order reads as under:
"10. In the case of Mukesh Thakur (supra), it has been held by Hon'ble Supreme Court that in absence of any provision under statute or statutory rules/regulations, High Court should not generally direct the re-valuation of answer books. It has also been held that 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 candidate. It 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, it is difficult to understand as to whether such a course could have been adopted by the High Court.
11. In view of the law and facts discussed above, we are of the view that as the different Circles of BSNL have conducted their LICE independently and after inviting objections on the Provisional Answer Key, different Circles acted independently on the basis of recommendations of Expert Committee consulted for the purpose, it is not proper to direct M.P Circle of BSNL to adopt similar methodology for awarding marks on the disputed questions. Moreover the selected candidates have already joined as JTO after undergoing required training. However, M.P Circle is at liberty to follow the directions issued by C.A.T, Chandigarh Bench, or constitute any High Power Committee to review the matter, as several vacancies of JTO are still lying vacant. It is made clear that if M.P. Circle decides to appoint any High Power Committee, the seniority of candidates who have already joined as JTO, shall not be disturbed."
10. In view of the settled position of law that it is not open for the unsuccessful candidates to challenge the criteria of selection process after having participated in the examination, we are not convinced with the submission of the applicants to award additional marks to them. The applicants have also not been able to provide any rules/instructions, which provide for re-evaluation of the answer sheet. Moreover, the issue involved in this Original Application has already been decided by this Tribunal in Page 6 of 7 ANUPAM Digitally signed by ANUPAM MISHRA Date: 2024.12.04 MISHRA 13:18:50-08'00' 7 Original Application No.200/492/2014 and in the absence of any order passed by the Higher Court contrary to our order passed in the aforesaid Original Application, we dismiss these Original Applications in similar terms.
11. Accordingly, both the Original Applications are dismissed. No order as to costs.
(Mallika Arya) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
Anupam
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ANUPAM Digitally signed by
ANUPAM MISHRA
Date: 2024.12.04
MISHRA 13:18:50-08'00'