Central Administrative Tribunal - Ahmedabad
Praful Jaywantrao Pagare vs M/O Railways on 24 January, 2023
1
OA No.679/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No.679/2016
Dated this the 24th day of January, 2023
Reserved On:10.01.2023
Pronounced On: 24 .01.2023
CORAM :
HON'BLE MR. JUSTICE RAMESHWAR VYAS, MEMBER
(JUDICIAL)
HON'BLE MR. DR. A.K.DUBEY, MEMBER (ADMINISTRATIVE)
1 Praful Jaywantrao Pagare,
Aged:47 years (DoB being 06.03.1969)
S/o. Shri Jaywantrao Pagare,
Presently serving as Junior Engineer
under Sr.SSE, LRS at Dahod,
& presently residing at Hari Krishna Nagar,
Hazaria Falia, Muvalia, Farm,
Dahod 389 160, Gujarat.
2. Rakesh Kumar Vinaychandra Joshi,
Aged:45 years (DoB being 11.04.1971),
Son of Shri Vinaychandra Joshi,,
Presently serving as Junior Engineer
under Sr.SSE, LRS at Dahod,
& presently residing at No.9, Jalaram Park,
Opp. St.Stephen School, Godhra Road,
Dahod - 389 160, Gujarat .......Applicant
(By Advocate: Mr.M.S.Rao)
Vs.
1. Union of India,
(to be represented through the Special Secretary
To the Govt. of India & the Ex Officio Chairman,
Railway Board, Ministry of Railways,
Rail Bhavan, New Delhi 110 001.
2. Western Railway,
(to be represented through its General Manager (E),
W. Rly. Zone, Office of the General Manager (E),
W.Rly. Hqrs. Office, Church Gate,
Mumbai - 400 020.
3. The General Manager (Vigilance),
Western Railway,
W.Rly. Hqrs. Office, Church Gate,
Mumbai - 400 020.
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OA No.679/2016
4. The Chief Workshop Manager (CWM),
Chief Workshop Manager (CWM)
Loco, Carriage & Wagon Workshop,
O/o CWM, Western Railway,
Freelandgunj,
Dahod - 389 160.
5. The Senior Section Engineer,
L.R.S. Dahod,
Western Railway
Dahod - 389 154. .....Respondents
(By Advocate :Mr.M.J.Patel)
ORDER
Per: Hon'ble MR. Justice Rameshwar Vyas, Member (J)
1. Both applicants have jointly filed this OA with the prayer to set aside and quash the office order dated 24.09.2016 as also the impugned speaking orders dated 21.09.2016 (Annexure-A/33 & Annexure-A/34) whereby names of the applicants mentioned in Selection List dated 05.07.2010 (Annexure-A/8), were deleted in pursuance of the order passed by this Tribunal in OA No.200/2015 on 14.10.2015. Prayer was also made to declare and hold the applicants' selection and promotion to the post of Junior Engineer-II as valid and proper.
2. Brief facts of the case are as under:-
2.1 The applicants were serving as Fitter Grade II and III respectively under the Senior Section Engineer, Western Railway, Dahod. A notification dated 22.02.2010 (Annexure-A/2) to fill-up 25% posts in the cadre of Junior Engineer Grade-II by way of promotion from the eligible candidates belonging to the feeder cadre was issued. Pursuant to the above notification, written examination was conducted on 15.06.2010. As per result of the written examination, the applicants obtained more than 60% marks, i,e, the required passing marks. After that, successful candidates were inducted into training and thereafter, the applicants also qualified the Final Retention Test held on 09.01.2012. It is averred by the applicants that after qualifying the Final Retention Test, the office of respondent no.4 herein came out with the notification dated 11.01.2012 publishing the list of 9 successful candidates 3 OA No.679/2016 drawn in the order of merit and ever since then the applicants herein have been serving as Junior Engineer in LRS Shop under the respondent no.5 herein.
2.2 In the meanwhile, one Manoj Kumar, who was also a candidate in the said examination but was not included in the select list, filed Original Application No.195/2011 before this Tribunal praying to set aside the exercise undertaken by the railway administration and not including his name in the select list. The OA was dismissed. It was noticed by the Tribunal that Vigilance Inquiry had been initiated as well as an investigation at the Headquarters of the Western Railway regarding examination process was undertaken. Therefore, in the order, the Tribunal observed as under:-
" It is expected that the respondent authorities would take proper action on the findings of the Vigilance Branch as well as investigation at the Zonal level and further take such corrective steps as may be required in the lights of the findings. The allegations made by the applicant would also be addressed in this process."
2.3 It appears that taking into account the report of the Vigilance Branch, as also the directions made by this Tribunal in OA No.195/2011 filed by one unsuccessful candidate Manoj Kumar, the railway administration decided to re-evaluate the answer sheets of the applicants who upon re-evaluation were awarded less than 60 marks out of 100. Therefore, the railway administration issued show cause notice dated 02.06.2015 (Annexure-A/14) to both applicants calling upon them to show cause on account of re- evaluation of the answer sheets, why they should not be reverted to their original post since they had already been granted promotion to the post of Junior Engineer based on the result of the examination. After that their names were deleted vide order dated 08.07.2015 from the list of successful candidates. Faced with the above situation, the applicants herein filed OA No.200/2015 challenging the action of the railway administration. The Tribunal by interim order dated 15.07.2015 directed the respondent not to disturb the applicants from the present post they are holding. The Tribunal disposed of the above OA by judgment dated 14.10.2015 (Annexure-A/18) whereby respondents were directed to order re-evaluation of answer sheets of all the 12 successful candidates by constituting a Board for this purpose. Pursuant to the direction of this Tribunal in the said judgment, the railway 4 OA No.679/2016 administration carried out re-evaluation of answer sheets of all selected candidates. Four of these selected candidates secured less than 60% marks in the re-evaluation exercise. They were therefore issued show cause notices. Aggrieved with the issuance of show cause notices, four candidates filed four separate Special Civil Applications challenging the judgment of the Tribunal dated 14.10.2015 and show cause notices issued by the railway administration seeking their reversion. Shri Manoj Kumar had also filed Special Civil Application challenging the judgment of this Tribunal passed in OA No.195/2011.
2.4 The above Five Special Civil Applications came to be decided by Division Bench of Hon'ble Gujarat High Court on 11.07.2017 whereby OA of Shri Manoj Kumar was dismissed whereas, OAs of the other four applicants were allowed, wherein the order of this Tribunal directing re-evaluation of answer sheets of all the successful candidates was found faulty for various reasons. None of the selected candidates were before the Tribunal in the Original Application filed by Shri Pagare and Shri Joshi, applicants herein was mentioned the first reason. The second fault found in the order was that in that original OA, applicants did not pray for re-evaluation of the answer sheets of all the candidates and they had no grievance against the rest of the candidates.
3. While disposing of the Special Civil Application on 11.07.2017, it was clarified by Hon'ble Gujarat High Court that re-evaluation of the answer sheets of Shri Pagare and Shri Joshi pursuant to the judgment of the Tribunal dated 14.10.2015 is not tampered with any manner since these original applicants are not before us by way of challenging the judgment of the Tribunal by filing writ petitions. It is also observed by Hon'ble Court that nothing stated in this judgment would prejudice either side in the Original Application No.679/2016 (present one), which is pending before the Central Administrative Tribunal, Ahmedabad filed by Shri Pagare and Shri Joshi.
4. As per the averments made in this OA after the decision of the OA No.200/2015, the applicants also came to be served with individual show cause notices both dated 21.03.2016 along with other four successful candidates. Thereafter the challenge was made to the show cause notice by filing OA No.366/2016. After disposal of the OA No.366/2016 and Special 5 OA No.679/2016 Leave Application No.5415/2015 wherein having remained unsuccessful, the applicants put up their case before the railway authority against re- evaluation and proposed reversion by filing reply dated 10.05.2016 and 23.05.2016 by each of the applicants vide Annexure-A/31 and Annexure- A/32 respectively. However, by impugned order dated 24.09.2016 (Annexure-A/1) applicants have been sought to be reverted from the post of Junior Engineer to the post of Fitter Grade-II and Fitter Grade-III respectively. The applicants have laid challenge to the above order on the following grounds:-
(i) The show cause notices to the applicants came to be issued with pre-
determined mind to revert the applicants herein. The railway administration has not furnished the applicants all particulars and documents to facilitate the submissions of an effective and meaningful reply to the aforesaid show cause notices dated 21.03.2016.
(ii) In the previous OA, there was no occasion to deal with the aspect of alleged cuttings and over writings in the applicants' answer to objective type questions. It is not open to the railway administration to deduct any mark for the same, inasmuch as, on the instruction sheet issued along with the answer paper, there was no specific instruction that there should not be cuttings or over writings in any answer to the part (i) objective type questions. That is the reason why when the applicants' answer sheets were evaluated for the first time, the evaluator had evaluated even the answers with cuttings and over writings.
(iii)The marks came to be deducted in purported compliance with the instructions contained in the railway Board's RBE No.29/2009, Letter No.E(NG)-2008/PM1/18 dated 13.02.2009. As a matter of fact, even though the aforesaid instructions of the Railway Board permitted no correction in the answers to objective type, yet in para 3 of these very instructions clearly provides that the aforesaid instructions should be widely circulated so that all the staff concerned are fully aware of the implications of making corrections in their answer to objective type questions and that these may also be made part of the instructions printed on the question paper and answer sheets so that there is no room for complaint from any candidate. In the present case, Railway Board's 6 OA No.679/2016 above circular was not circulated amongst any staff serving in the office of the respondent no.4 & 5. The aforesaid instructions were not made part of the instructions printed on the question paper and on the answer sheets made for written examination held on 15.10.2010, thereby keeping the applicants' in dark about such instructions of the Railway Board. Therefore, any deduction being sought to be made on the basis of aforesaid instructions of the Railway Board is not tenable in law.
(iv) Another noteworthy feature is that in the written examination held on 08.06.2013 in pursuance of notification dated 18.03.2013 the respondent no.4 had duly made the aforesaid instructions of the Railway Board a part of the Question Sheet.
(v) Impugned office order has caused serious prejudice to the applicants. In this context, it is required to be noted that applicants will not henceforth be eligible and entitled to take part in any selection that may be held for the post of JE against Intermediate Apprentices Quota, inasmuch as the applicants apart from being over-aged, do not satisfy with the revised qualification prescribed for the aforesaid posts. This is not all. When the office of respondent no.4 came out with the notification dated 18.03.2013 initiating selection under 25% Quota for filling-up 10 vacancies, the applicants while serving as regular Junior Engineer did not think it proper to offer their candidature inasmuch as they were already duly selected and promoted to the said post in the previous selection and were undergone training.
(vi) The respondent no.4 has resorted to show undue haste and anxiety to revert the applicants even without dealing with any of the points raised by the applicants in their individual representation.
5. Therefore, impugned order dated 24.09.2016 (Annexure-A/1) and consequently, order dated 21.09.2016 (Annexures-A/33 & A/34) have been sought to be quashed and set aside.
6. In the reply filed by the respondent, it has been averred that the respondent has initiated proceedings to implement the order passed by the Tribunal in OA No.200/2015 relying upon the confidential letter dated 03.08.2009 (Annexure-R/5). It is averred that the matter for re-
7 OA No.679/2016evaluation has been examined in depth and after taking into consideration all aspects of the matter and instructions issued (Annexure- R/5), the competent authority has issued order for re-evaluation of answer sheets of all the candidates,.
7. Referring to RBE No.29/2009, it is averred that cutting, over writing, erasing, scoring of ticked answer in multiple choice answers and modifying the answer in any way is not permissible. The above referred letter was re-circulated by respondent no.4 to each and every office and section-in-charge of the shop. Letter was also placed on the notice board of each shop for wide publicity.
8. During the re-evaluation of answer sheets of the written examination, the applicants have not obtained required 60% qualifying marks. Therefore, no case is made out in favour of the applicants.
9. Applicants have also filed rejoinder to the reply filed by the respondents.
10. Heard learned counsel for the applicants and perused the material available on record.
11. Learned counsel for the applicants submits that in the question paper with answer sheet supplied to the applicants no instruction was mentioned regarding cutting, over writing or modifying the answer to objective type questions. The marks come to be deducted for the cuttings and changes of answers without circulating the relevant instructions wherein such cuttings were made impermissible. In this regard, learned counsel for the applicant has drawn the attention of this Tribunal towards the instructions printed on the question paper supplied to the candidates in the examination. Learned counsel for the applicant further submits that Railway Board's Letter dated 13.02.2009 was not circulated in the office of the respondent whereas, as per the direction given in Railway Board's order No.29/2009 dated 13.02.2009 these instructions should be widely circulated so that all the staff concerned are fully aware of the implications of making corrections in their answers to objective type questions; and these may also be made part of the instructions printed on the question paper and answer sheet so that there 8 OA No.679/2016 is no room for complaint from any candidate. Learned counsel for the applicants submits that without making aware of the implications of making corrections in the answer sheets, the marks could not be deducted on account of corrections in the answer sheets. In the first evaluation of the answer sheets, the evaluator themselves were not aware of the above instruction. Therefore, they evaluated the answers with corrections and also awarded marks. Learned counsel for the applicants further submits that applicants have already been promoted to the Grade of the Junior Engineer-II in the year 2012 and hence, they did not take part in the written examination held on 08.06.2013 in pursuance of notification dated 18.03.2013. Now, the applicants have become over- aged and cannot fulfill the revised qualification for the said post. It is also argued that in the written examination held on 08.06.2013, the respondent had duly made the aforesaid instructions of the Railway Board a part of the question sheet. Great injustice would be caused if impugned order is sustained.
12. On the other hand, learned counsel for the respondent submits that re-
evaluation have been made after obtaining consent from the applicants. Learned counsel for the respondent submits that re-evaluation of the answer sheets had been made in pursuance of the directions given by this Tribunal while deciding OA No.195/2011 on 02.04.2013. Apart from it, Vigilance report was also there which necessitated the re-evaluation of answer sheets of some candidates. Since corrections in the answer sheets to objective type questions are not permissible, marks were deducted against the answers given after correcting the previous answer. No illegality has been caused by the respondent in deducting the marks. Since applicants failed to obtain minimum 60% marks after re-evaluation of the answer sheets, their names are liable to be deleted from successful candidates. Learned counsel for the respondent further submits that instructions contained in RBE No.23/2009 have been given wide publicity and applicants were also in the knowledge of the above provision regarding prohibition of correction in the answers to the objective type questions. He prays to dismiss this OA.
13. Having regard to the submissions made by learned counsel for the parties and material available on record, the question for consideration before 9 OA No.679/2016 this Tribunal is whether in re-evaluation of the answer sheets, respondent committed illegality in deducting the marks originally awarded in the answer sheets in the first evaluation of answers. Before deciding the controversy, it will be necessary to go through the RBE No.29/2009 dated 13.02.2009. This order relates to disallowing corrections in the answers once indicated in the written test for selection/promotion to the post classified as 'Selection' within Group-'C'. In this order, taking note that candidates in the written examination while answering objective type questions, mark either more than one answer or keep making correction in the answers indicated earlier which not only creates confusion but has also been objected during Vigilance Investigations, it has been decided by the Railway Board that in the answers to the objective type questions, no corrections of any type may be permitted. In case, any correction is made, that answer shall not be evaluated at all. The above decision of the Railway Board was also in force at the time of first evaluation of the answer sheets of the applicants. However, in spite of corrections made in the answers to some questions, the answer sheets were evaluated and marks were awarded to the corrected answers. Having obtained passing marks i.e. more than 60% marks, the applicants were declared successful in the written examination and thereafter, they were permitted to join further process of selection test. Only after clearing the Retention Test, they were promoted to the post of Junior Engineer Grade-II in January, 2012. The first evaluation of the answer sheet was not undertaken complying with the instructions of the Railway Board's order No.29/2009 which suggests that evaluator were also not in the knowledge of above order. It is also important to note that the instructions as enumerated in the above RBE No.29/2009 were also not printed on the question paper and answer sheet or otherwise also not made part of the examination. In the above circumstances, the applicants could not be presumed to have knowledge about the above instruction and they have substance in their contention that the above instructions could not be applied after the examination was over.
14. Once applicants had been promoted to the post of JE-II, they could not be expected to participate in another departmental examination held on 08.06.2013 for the promotion to the post of JE-II. As per the 10 OA No.679/2016 submissions made by learned counsel for the applicants, applicants apart from being over-aged do not satisfy the revised qualification prescribed for the aforesaid post. We are of the opinion that if prayer of the applicants is not allowed then irreparable loss will be caused to them. Now there is no other way to place them in the position existed in the year 2010. First evaluation of answer sheets itself was not in accordance with the Railway Board's order, which says that "in case of any correction is made, that answer shall not be evaluated at all." No notice or action was initiated against the applicants for any alleged misconduct on the part of the applicants during the course of examination. In our considered view, deduction in the marks on account of corrections could not be made during re-evaluation and revaluation itself could not adopt different criteria for marking them than the ones adopted at the time of first evaluation. If stipulation of RBE No.29/2009 were not complied with by way of not printing them on the question paper and answer sheets, candidates taking that examination can't be faulted for it. It is also relevant to mention here that it is not the case of the respondent that applicants adopted unfair means while answering the questions in the examinations. There is no defence regarding the using unfair means or adopting illegal practices during course of taking examination by the applicants. In the absence of instructions regarding corrections in the answer sheets made known to the candidates, the Railway Board's circular dated 13.02.2009 will not entitle the respondent to deduct the marks against answers given after making corrections and to revert the applicants from the JE-II to their original position after such a long time. As stated earlier, applicants had already been promoted in the year 2012 and after that 10 years have already been passed. Therefore, it will not be just and fair to allow the respondent now to revert the applicants to their original position. The episode in this matter took place on account of mistake committed by the department in not printing the instructions on question paper and answer sheet regarding corrections in the answer sheet. The applicants would not have been able to challenge the deduction of marks in the case of printing the above referred instruction on the question and answer sheets.
11 OA No.679/2016Resultantly this OA is allowed. The impugned order dated 21.09.2016 (Annexures-A/33 & A/34) and order dated 24.09.2016 (Annexure-A/1) are quashed and set aside. No order as to cost.
(A.K.DUBEY) (RAMESHWAR VYAS) Administrative Member Judicial Member SKV