Central Administrative Tribunal - Hyderabad
P.P. Sadanandam And Ors. vs The Secretary, Railway Board And Ors. on 21 February, 2005
Equivalent citations: 2006(1)SLJ1(CAT)
ORDER Bharati Ray, Member (J)
1. This applications have been filed by the applicants seeking the following relief:
(a) to set aside the impugned order No. P/GAZ/607/Engg/Regular/2004, dated 9.9.2004, of the 4th respondent, communicating the decision of the Competent Authority cancelling the entire selection proceedings from the stage of written examination for formation of Group-B panel for Assistant Engineers (AENs) for no reason and the consequent memo No. P/GAZ/607/ Engg/Regular/2004 dated 10.9.2004, fixing the date of written examination to be held on 25.9.2004 conducting fresh written examination which examination and selection process was already concluded, declaring the same as arbitrary, illegal unwarranted, misconceived and in violation of Articles 14 and 16 of the Constitution of India;
(b) to direct the respondents to finalise the selection for the group B posts of Assistant Engineers, based on the written examination held on 12.6.2004 and the viva voce held on 26th, 27th and 28th of August, 2004 by publishing the panel of selected candidates, with all consequential benefits of promotion etc.
2. Since the issue involved in both these applications are one and same, they are being disposed of by a common order.
3. The undisputed facts of the case are that in order to fill up the 42 vacancies in the cadre of AENs in Civil Engineering Department against 70% quota, the South Central Railway issued a notification No. P.GAZ/607/Engg/Regular/2004 dated 22.1.2004 calling for willingness from the eligible candidates for the above selection. As per the notification dated 22.1.2004 the select list will consist of 42 empanelled officials comprising of 35 UR, 4 SC and 3 ST. The number of vacancies against the 70% quota was assessed for the period 1.1.2004 to 31.12.2005. The officials mentioned in the said notification dated 22.1.2004 have expressed their willingness to appear for the above selection and on consideration of the willingness submitted by the officials, the 4th respondent vide his memorandum No. P.GAZ/607/Engg/Regular/2004 dated 16.4.2004 had circulated the final list of 173 employees who were found eligible and expressed willingness to appear for the said examination. As willingness of some of the candidates were not taken into account, a revised final list comprising all 173 names of the employees who are eligible to be called for written examination was once again circulated by the 4th respondent vide Memorandum No. P.GAZ/607/Engg/Regular/2004 dated 6.5.2004 in which also the names of all the applicants have figured for the selection. In terms of said notification the written examination was fixed to be held on 22.5.2004 and the candidates were directed to attend written examination with their individual identification letters, duly attesting their signatures. However, the said examination was postponed and finally it was held on 12.6.2004 and supplementary examination was held on 5.7.2004. The result of the written examination were released by Memo No. P.GAZ/607/Engg/Regular/2004 dated 14.7.2004 wherein 105 candidates were qualified including the applicants. In terms of memorandum No. P.GAZ/607/Engg/ Regular/2004 dated 13.8.2004 the viva voce was to be held on 25th, 26th and 27th of August, 2004 and the names of the qualified candidates for the post of AENs were circulated showing the name of the applicants herein calling upon them to attend the said viva voce on scheduled dates. It was also mentioned in the said letter that the candidates who are qualified to attend viva voce are required to undergo medical examination before attending the viva voce. All the applicants have been found fit in medical examination and were qualified to attend the viva voce on the scheduled dates. However, the dates indicated were changed to 27th, 28th and 29th of August, 2004 and the said dates were also postponed and finally viva voce was held on 26th to 28th of August, 2004 and the applicants attended the viva voce test which was completed on 28th August, 2004.
4. It is the case of the applicants that after the viva voce test was over on 28th August, 2004 and the applicants were eagerly waiting for the final list, the impugned order No. P. GAZ/607/Engg/Regular/2004 dated 9.9.2004 was issued intimating that the Competent Authority has ordered the cancellation of the selection proceedings from the stage of written examination and the selection proceedings held so far to form a panel to the Group-B posts of AENs in the scale of pay of Rs. 7500-12000 was cancelled. The impugned letter also stated that further dates of re-conducting the written examination in connection with the above selection will be informed subsequently. It is, therefore, the contention of the applicants that whole effort put in by a senior group of civil engineering departmental employees who wrote the written examination and attended the viva voce had become waste. Aggrieved by the said action on the part of the respondents the applicants had submitted to the 2nd respondents vide their representation dated 10.9.2004 highlighting their grievance against cancellation of the selection and requested the 2nd respondent to release approved panel at an early date for the benefit of the candidates who have been qualified in the selection but they were not favoured with any reply and since the respondents were going ahead to conduct the written examination on 25.9.2004 the applicants approached this Tribunal assailing the impugned order dated 9.9.2004 issued by the 4th respondent and seeking for the relief mentioned above.
5. This Tribunal, on 23.9.2004, as an interim measure passed order restraining the respondents from holding the fresh examination to be held on 25.9.2004 duly maintaining status-quo pending disposal of the of the O.A. However, the respondents were given liberty to revaluate the answer scripts of some of the candidates to whom additional marks were given wrongly.
6. The respondents have contested the applicant by filing their counter reply. It is the case of the respondents that viva voce was conducted for 103 employees who were found fit in the medical examination and the recommendation of the Selection Committee was placed before the General Manager for his approval, being the Competent Authority, and the said authority, after going through the entire selection process noticed various infirmities/ irregularities in awarding marks to various candidates and as such found that the entire selection process is vitiated and hence directed to cancel the selection proceedings and to commence the same from the stage of written test onwards and the said decision was communicated vide impugned proceedings dated 9.9.2004, It is also stated in the counter reply filed by the respondents that the Competent Authority has taken the decision after verifying the entire material. Therefore, the respondents have denied the contention of the applicants that the action of the Competent Authority is arbitrary. In fact, it is the contention of the respondents that as the irregularities found in the selection process made many employees ineligible in qualifying the said examination, the Competent Authority rightly directed fresh written test. Therefore, the grounds taken by the applicants fails and the application deserves to be dismissed.
7. In support of their contention that the Competent Authority verified the entire material and taken the decision, the respondents have produced before the Tribunal the relevant selection proceedings in connection with formation of Panel to the Group 'B' posts of Asstt. Engineers in scale Rs. 7500-12000 (V PC) in Civil Engineering Department (70% Quota).
8. The learned Counsel for the applicants strenuously argued that respondents cannot cancel the entire selection without indicating the reason for such cancellation and without giving opportunity to the applicants who had qualified the written test as well as the viva voce test and also found fit in the medical examination. He further submits that the respondents cannot explain their action by way of affidavit or otherwise. It is, therefore, the contention of the applicants' Counsel that the impugned order cancelling the entire selection by the respondents without giving the reason is bad in law and is not sustainable in the eyes of law and the impugned order is therefore liable to be quashed and set aside. It is his contention that since the applicants have already qualified in the written test and viva voce test they are entitled for the promotion. The respondents are to publish the final result of the selected candidates and extend the consequential benefits to the applicants. In support of his contention that there should be reason indicated in the order, the learned Counsel for the applicants have referred to the Railway Board's Order R.B.E. No. 95/2002 whereby the Railway Board referring to the order of the CAT Allahabad Bench order dated 21.3.2002 in O.A. 359/2001 advised all the authorities concerned to follow the direction of the CAT for guidance in future. The contention of RBE No. 95/2002 is quoted below:
The Central Administrative Tribunal, Allahabad Bench in their order dated 21.3.2002 in O.A. No. 359/2001 have inter alia observed as under:
We direct the office that a copy of this order shall be sent to the Chairman, Railway Board for considering the necessary action in the matter, so that such arbitrary action may not be repeated in future. We suggest the Chairman, Railway Board that in such circumstances it may be made obligatory on the officers to disclose reasons in the order if cancellation of the selection is required. A copy of the order is also enclosed for ready reference.
The Board desire that the directions of CAT Allahabad Bench may be noted for guidance in future.
9. The learned Counsel for the applicants have also pointed that the very fact that the authority concerned has cancelled the entire selection only 12 days after the completion of viva voce test shows that there had been no satisfactory enquiry conducted to arrive at a decision for order to cancel. It is his contention that 12 days are not enough for the purpose of thorough enquiry and therefore, it is obvious that the authority had cancelled the selection without going into detail of the selection proceedings and thus the cancellation of the same is unwarranted and is against the principle of natural justice.
10. Mr. S.R. Ashok, learned Senior Counsel, leading Mr. M.C. Jacob learned Counsel appearing for the respondents raised three fold contentions. Firstly, the General Manager is competent to cancel the selection proceedings and can do so under Para 204.10 of IREM. Hence the General Manager after going into details of the selection proceedings found that the selection proceedings suffer from the following irregularities and cancelled the said proceedings with a direction to organise written examination:
(1) 14 candidates had been awarded additional (10) marks for answers against question No. 12 and 13;
(2) 8 juniors who has been declared as 'outstanding' superseded 8 of their seniors.
(3) 10 candidates who are seniors and does not have requisite in written test failed to secure minimum marks in viva voce.
It is, therefore, the contention of Mr. S.R. Ashok that there is nothing wrong in cancelling the selection proceedings and as the proceedings were cancelled before the panel was prepared, no notice need be issued to the candidate who found place in the final selection list and therefore, there had been no violation of principle of natural justice as contended by the applicants. Secondly, while admitting that no reason is indicated in the order of cancellation, Mr. S.R. Ashok submits that if the reason is disclosed in the relevant record the order cannot be said to be bad in law for not indicating the reasons for cancellation in the order itself, Learned Sr. Counsel further added that what is necessary is that reasons are clear and explicit so as to indicate that the authority has applied its mind and given due consideration before arriving at its decision. In this context the learned Sr. Counsel for the respondents produced before us the record pertaining to cancellation of the selection proceedings by the General Manager and submitted that the record would show that reasons are clear and explicit and made it clear that the General Manager after critical analysis of the proceedings had arrived at its decision of cancelling the entire selection proceedings. In this context we would like to refer to Para 8 of the judgment of the Hon'ble Supreme Court in the case of Mohinder Singh Gill v. Chief Election Commissioner . The Hon'ble Supreme Court has held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. It will not be out of place here in this contact to make a mention about the judgment of the Hon'ble Supreme Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi where the Apex Court has held that if the order does not indicate the reason but reasons are indicated in the record the administrative order cancelling the proceedings can be sustained. The Apex Court has further held that an administrative decision, its order/decision itself may not contain reasons. It may not be the requirement of the rules, but at the least, the record should disclose reasons. As mentioned above, the learned standing Counsel for the respondents have produced before us the relevant selection proceedings in connection with formation of Panel to the Group B posts of Asstt. Engineers in scale Rs. 7500-12000 (V. PC) in Civil Engineering Department (70% quota). Thirdly, Mr. S.R. Ashok, learned Sr. Counsel, in order to strengthen the findings of the General Manager to arrive at its decision of cancellation of the entire selection proceedings submitted that it is most unlikely that an officer who is considerably senior and have long experience and secured high marks in written examination failed to secure minimum marks in the viva voce test. However, it is not denied by the learned Counsel that out of 103 candidates only 10 such seniors who got requisite marks in written examination secured marks lesser than the minimum. From the counter reply, it is seen that in total 103 candidates appeared in the viva voce test conducted on 26.8.04 to 28.8.04. He further added that General Manager has further observed that evaluator of written examination awarded additional marks for answers against question No. 12 and 13 in respect of 14 candidates and on further analysis it was detected that if the addition (10 marks) are deducted for these answers, 4 candidates would not have been placed as "outstanding" and two candidates would not have been qualified and are to be deleted from the list. It is, therefore, contended by Mr. S.R. Ashok that when the General Manager has cancelled the entire selection proceedings on cogent reasons and is competent and empowered to cancel the proceedings, there is no illegality in the action of the General Manager in cancelling the selection proceedings and that there had been no breach of rules of natural justice and that in such case the Tribunal cannot sit on review to determine whether the decision taken by the authority is justified or not. In this context he has referred to Para 77 of the judgment of the Hon. Supreme Court in the case of Tata Cellular v. Union of India (1994) 6 SCC 651 which is reproduced below:
77. The duty of the Court is to confine itself to the question of legality. Its concern should be:
(1) Whether a decision-making authority exceeded its powers?
(2) Committed an error of law, (3) Committed a breach of the rules of natural justice, (4) Reached a decision which no reasonable Tribunal would have reached or, (5) Abused its powers.
Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality: This means the decision maker must understand correctly the law that regulates his decision-making power and must given effort to it.
(ii) Irrationality, namely Wednesbury unreasonableness,
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind (1991) 1 AC 696, Lord Diplock refers specially to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the Court should, "consider whether something has gane wrong of nature and degree which requires its intervention.
11. Heard Mr. S. Ramakrishna Rao, learned Counsel for the applicants and Mr. S.R. Ashok, Sr. Counsel, for Mr. M.C. Jacob, learned Counsel for the respondents. We have gone through the facts of the case and material papers placed before us. We have also gone through the selection proceedings produced by the learned Counsel for the respondents.
12. In view of the above facts and circumstances, the question that arises for consideration is as to whether the General Manager is justified in taking its decision of cancelling the entire selection proceedings vide impugned order dated 9.9.2004. In order to appreciate the question in its totality it is required to go through the following relevant rules regarding promotion of Group B posts which is dealt in Chapter II Section A of IREM Vol. II 201.1, 202.1, 204.1, 204.4 and 204.5, 204.8, 204.9 and 204.10 :
201.1 All vacancies in Group "B" are filled by promotion on the basis of selection of eligible Group C employees and also on the basis of Limited Departmental Competitive Examination, wherever the scheme is in force. Where the scheme of LDCE is in force, selection is held to fill 75% of the vacancies and LDCE is held to fill the remaining 25% of the vacancies.
202.1 Composition of Selection Committee : Selection Committee will be constituted under the orders of the General Manager for the purpose of making recommendations to him in respect of Group "C" staff considered suitable for promotion to Group "B".
204.1 Selection Procedure : The selection is based on a written test to adjudge the professional ability, viva voce and assessment of records by the Selection Committee.
204.4 The setting of the question paper and evaluation of answer books should be done by and the same office of SA grade level I who need not necessarily be a member of the Selection Committee. Questions on official language policy and official language rules may be set by or in consultation with the Mukhya Raj Bhasha Adhikari.
204.5 No moderation of the performance is permissible.
204.8 The successful candidates shall be arranged as follows:
(1) Those securing 80% marks and above graded as 'Outstanding'.
(2) Those securing between 60% marks and 79% marks graded as 'Good'.
204.9 The panel should consist of employees who had qualified in the selection, corresponding to the number of vacancies for which the selection was held. Employees securing the gradation 'Outstanding' will be placed on top followed by those securing the gradation, 'good' inter se seniority within each group being maintained.
204.10 The recommendations of the Selection Committee should be put upto the General Manager for approval. If he does not approve of the recommendations he will record his reasons in writing there for and order a fresh selection. Once a panel is approved by the General Manager no amendment or alteration in the panel should be made except with the prior approval of the Railway Board.
It is not disputed that the Selection Committee has been properly constituted as per rule. From the selection proceedings produced by the learned senior Counsel for the respondents we find that the authority concerned had gone into detail all the necessary sheets of the written examination and found that 8 candidates have been declared as outstanding. When it is found by the Competent Authority that 8 candidates have been declared as outstanding and superseded 13 seniors who have not been selected, a detailed analysis was made and the answer books of the written examination had been gone through and it was seen that the evaluator of the written examination had given additional marks for answers against question Nos. 12 and 13 in respect of 14 candidates. On going through the selection proceedings we find that the recommendation of the Selection Committee was placed before the General Manager for approval and the General Manager after going through the entire selection proceedings noticed various infirmities in awarding marks to the various candidates. It is seen from the record that in questions No. 12 and 13 candidates have been asked to answer only 4 (four) sub-questions against a total of 5. Where the candidates have answered all the five also have been evaluated and marks given for all in total. It was noticed by the Competent Authority that normally the last of five bit answers should have been scored out, and marks are given only for four bits. Each bit thus carries an extra 5 marks. Therefore, extra 10 marks have been awarded to four candidates and if this 10 marks are deducted for those answers, those four candidates would not have qualified for being placed as outstanding. Moreover 2 candidates who secured above minimum marks in written test would not have qualified if these 10 marks are deducted. Thus, he had inferred that awarding of the additional 10 marks had resulted in vitiation of results. Further the General Manager has noticed that in the list 22 were found unsuitable. Out of them 5 did not get through because they did not secure minimum marks of 15 for the service record, three candidates were not eligible because of pending major penalty proceedings whose names have been kept in the sealed cover. We find that the General Manager was surprised to see that out of 14 candidates who were declared unsuitable based on the personality test (viva voce), 10 were senior enough and should have got selected to Group B but the Committee giving lesser marks than the minimum. In this context it is pertinent to mention that the Selection Committee was constituted under the order of General Manager in terms of Para 202.1 of IREM mentioned above. In view of the above findings it is evident that the candidates who had been allotted additional marks have been identified by the authority concerned and they are also very few in numbers. A plain reading of Para 204.9 of IREM (supra) would show that the candidate securing the gradation of outstanding would be placed on top followed by the gradation 'Good' inter se seniority within each group being maintained. That being the rule position, it cannot be said that the junior with the grade of outstanding cannot be placed above the senior or in other words there cannot be any likelihood of junior being placed in the list above the senior. In fact, in view of Paras 204.7 and 204.8 (supra) we do not find any force in the contention of Mr. S.R. Ashok, learned Counsel for the respondents and the findings of the General Manager that a senior who got high marks can fail in securing minimum marks in viva voce and that junior who has been graded 'outstanding' cannot be superseded by junior. We are, therefore, of the view that the above reasons cannot be said to be of cogent reasons to justify cancellation of the entire selection proceedings. That being the position the Tribunal can interfere with the decision taken by the authority concerned.
13. Coming to the judgment of the Apex Court referred to by the learned Counsel for the parties in the case of Union of India and Ors. v. Rajesh P.U. Puthuvalnikathu and Anr. 2003 SCC (L&S) 1048 : 2004 (1) SLJ 306 (SC), we find that in the said case the Hon'ble Supreme Court has found that there were 31 candidates found to have been declared successful though they were not really entitled to be so declared successful and selected for appointment and the selection of other candidates were not found to be in any manner vitiated and the Hon'ble Supreme Court has held that the Competent Authority therein misdirected itself in taking such an extreme and unreasonable decision in cancelling the entire selection wholly unwarranted and unnecessary even on the factual situation found too and totally in excess of the nature and gravity of what was at stake thereby virtually rendering such decision to be irrational. In the case in hand we find that the Competent Authority had identified the candidates who had been allotted additional marks. The selection of other candidates has not been vitiated in any manner. Therefore, in view, of the judgment of the Hon'ble Supreme Court (supra) and in view of the above observations, we are of the opinion that the General Manager is not justified in cancelling the entire selection when admittedly selection of large number of candidates are not vitiated in any manner and the candidates who had been awarded additional marks had been identified by the respondents.
14. In view of the above, we quash and set aside the impugned order of General Manager cancelling the entire selection proceedings and direct the respondents to finalise the selection by publishing the panel based on the selection list dated 8.9.2004 in so far as the candidates whose selection had not been vitiated based on written test and viva voce test and publish the panel of selected candidates taking into consideration the above observation within a period of two months from the date of communication of this order.
15. In result, the O. As. are allowed to the extent indicated above. However, there shall be no order as to costs.