Central Administrative Tribunal - Delhi
P. Ravichandranarayanan vs Bharat Sanchar Nigam Limited on 10 September, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI R.A. No. 147/2013 IN O.A. NO.207/2013 New Delhi this the 10th day of September, 2013 HONBLE SHRI G. GEORGE PARACKEN, MEMBER (J) HONBLE SHRI SHEKHAR AGARWAL, MEMBER (A)
1. P. Ravichandranarayanan S/o. Late V. M. Palani, Aged about 58 years, R/o. APT. 11, (New) 27, Thiagaraya Gramani Street, North Usman Road, T. Nagar, Chennai 600 017.
2. Swarna Sarada D/o. S. Vemaiah, Aged about 39 years R/o H. No. 25-2-2041, Gowtham Nagar, IIIrd Street, Podalkur Road, K. Nagar, Post, Nellore 534 004 Andhra Pradesh.
3. Vakkalagadda Ramachandra Rao, S/o Late V. Koteswara Rao Aged about 38 years R/o. D. No. 24-29-223/8, Gulabi Thota, Vijayawda, Krishna (Dist.) Andhra Pradesh.
4. K. Selvi D/o V. R. Kuppuswamy Aged about 51 years R/o. 15, Filterbed Road, Vellore-1.
5. Vemula Chandra Sekhar S/o. Late V. Nandgopal Aged about 35 years, R/o. G1, Avenue Jayam Apartments, 13/17, East Street, Kolathur, Chennai 99.
6. P. Aridass S/o. Pakkiry Aged about 47 years, R/o. No. 3, Manakulavinayagar st, Jayamnagar, Mudaliarpet, Pondicherry 605 004.
7. K. Ramanathan S/o. Krishna Murthy Aged about 59 years R/o. Plot No. 92, Second Main Road, Annai Theresa Nagar, Moolakulam Podicherry 605 010.
8. S. Sakthivel S/o. T. Sanjeevi Chettiar Aged about 54 years, R/o. S. Sakthivel, Door No. Old 189-A, New No. 24, Chinnammal Street, Saibaba Colony, K. K. Pudur, Coimbatore 641 038.
9. S. Rajendran S/o. M. Sundaresan Aged about 51 years R/o. 283 A1 Eighth Cross East, Cooperative Nagar, SS Nallur Post, Mayiladudurai 609 118.
10. G. Rama Subramanian S/o. P. Gopala Krishnan Aged about 36 years, R/o. Plot No. 19, ParkTown, 6th Street, P&T Nagar, Madurai 625 017.
11. Shubhada Boddun W/o. Sameer Boddun Aged about 34 years R/o. 206 Parivar Prince, Anugraha Layout, Bilekahalli, Bannerghatta Road, Bangalore 560 076.
12. Dara Lokanadam S/o. Late Ramaiah Aged about 37 years, R/o. Biradawada (village) Nayudu Pet (Manadal) S.P.S.R. Nellore (Dist) A.P. .. Applicants Versus
1. Bharat Sanchar Nigam Limited Through its Chairman-cum-Managing Director, Bharat Sanchar Nigam Limited, Corporate Office, Janpath, New Delhi.
2. Bharat Sanchar Nigam Limited, Through its Director (HRD), Corporate Office, Janpath, New Delhi.
3. General Manager (Recruitment), Bharat Sanchar Nigam Limited, Corporate Office, Janpath, New Delhi.
4. Assistant General Manager (DE), Bharat Sanchar Nigam Limited, Corporate Office, Janpath, New Delhi.
5. Sri Pradip Kumar Das S/o Sri Jogen Chandra Das Working as JtO, Office of DE (BB), Telephone Exchange, Panbazar, Guwahati-1.
6. Shri Rupak Medhi S/o Sri Suren Medhi Working as JT, Office of DE (Survey), NETF, BSNL, Silpukhuri, Guwahati-3.
7. Sri Gobinda Chandra Sarmah S/o Shri Karuna Kanta Sarmah Working as JTO, Office of DGM (L-1 Tax), Telephone Exchange, Panbazar, Guwahati-1.
8. Sri Amiya Kumar Sarma S/o Sri Charu Chandra Sarma Working as JTO, Office of DE Ext.-IV, Telephone Exchange, Dispur, Guwahati-5.
9. Shri Manik Chandra Deka S/o Late Pusparam Deka Working as JTO Office of CGM (NFTF), BSNL, Silpukhri, Guwahati-5.
10. Sri Kadam Ali Ahmed S/o Md. Hasmat Ali Working as JTO Office of DE (TP-II), BSNL, Bhangagarh, Guwahati-5.
11. Sri Hitendra Kumar Choudhury S/o Late Bachiram Choudhury Working as JTO Office of DE (TP-II), BSNL, deleted vide order Bhangagarh, Guwahati-5. dated 28.06.2012
12. Sri Sabiram Kalita S/o Late Dhanoram Kalita Working as JTO, Office of DE (ETR), BSNL, Panbazar, Guwahati-1.
13. Sri Moinul Islam S/o Late Ibrahim Ali, Working as JTO, Office of DE (OCB), Telephone Exchange, Ulubari, Guwahati-7.
14. Sri Habibur Rahman S/o Md. Naimuddin Sarkar Working as JTO, Office of SDE (Group), BSNL, Nagaon-782003.
15. Sri Sumanta Naid Purkayastha S/o Shri Susanta Kr. Nandi Purkayastha Working as JTO, Office of DE (Mobile), Telephone Exchange, Panbazar, Guwahati-1.
16. Sri Arunjyoti Saikia S/o Late Nirmal Chandra Saikia Working as JtO Office of DE (Mobile), Telephone Exchange, deleted vide order Panbazar, Guwahati-1. dated 28.06.2012
17. Shri Gaurisankar Bora S/o Late Makhan Bora Working as JtO, Office of SDE, Telephone Exchange, Sibsagar-785640.
18. Sri Manash Ranjan Pradhan S/o Late Bauri Bandhu Pradhan Working as JTO, Office of DE(TP-II), BSNL, Bhangagarh, Ghy-5.
19. Sri Jagannath Kakati S/o Late Rabiram Kakati Working as JTO, Office of RTTC, BSNL, Ulubari, Guwahati-7.
20. Sri Sushil Kumar Sarma S/o Shri Basudev Sarma Working as JTO, Office of SDE, Orang Telepone Exchange, Orang-784114.
21. Sri Swapan Sarkar S/o Late Sribash Chandra Sarkar Working as SDO (P), Telephone Exchange, Goalpara-783101.
22. Sri Subrata Dey S/o Late Narayan Chandra Dey Working as JTO, Office of SDO (P), BSNL, Kokrajhar-783370.
23. Sri Saleh Md. Mizanur Rahman S/o Late Reazuddin Ahmed, Working as JTO, Office of CMTS, BSNL, Telephone Exchange, Bongaigaon-783380.
24. Sri Utpal Goswami S/o Late Brajamohna Goswami Working as JTO, Office of GMTD, BSNL, Bongaigaon-783380 ..Respondents ORDER BY CIRCULATION By Shri G. George Paracken:
This Review Application has been filed by the Applicants (not party in the OA) to seek review of the order of this Tribunal dated 21.5.2013 in OA No.207/2013. The operative part of the said order reads as under:
18. We have heard the learned counsel for the Applicants, Shri S.D. Dutta with Dr. Sumant Bhardwaj, Ms. Anandana Handa for Rajeshekhar Rao, Shri Ahanthem Haeary in OA 207/2013, Shri Ranjit Singh in OA No. 3683/2012, Shri Amit Anand in OA No. 3789/2012, Shri Arun Bhardwaj in OA No. 2574/2012, Mrs. Anjani Aiyari in OA No. 414/2013, Shri Nagaraj Narayan in OA No. 440/2013 and Shri Vikas Jha and Sunil Kumar Verma in OA 644/2013, learned counsel for official Respondents in all the cases, Mrs. Jyoti Singh, Sr. Counsel with Shri Rajnish Prasad and Shri Suderahsan Rajan, learned counsel for private respondents in OA 3789/2012, Shri Rajeshwar Rao for private respondents in OA No. 207/2013. There is no dispute between the parties that there were some discrepancies in the questions set in Advance Technical Paper-1 of the LDCE held on 04.03.2012 for promotion to Sub Divisional Engineer (Telecom) under 33% quota. But nobody can find fault with manner in which the examination in question was conducted by the Respondent-BSNL. They were, in fact, quite transparent in all the aspects of the procedure in holding the examination. They were also quite positive in their approach in the matter. They themselves have issued a provisional answer key to the aforesaid question paper, inviting objections, if any. They have also responded positively to objections against the answers given in the provisional key by referring the matter back to paper setters. They have also constituted a Committee of Experts to go into the various discrepancies pointed out by various candidates/organizations. The Committee has thoroughly gone through all the questions and their tentative answer key and came out with their own recommendations. They did not accept the aforesaid recommendations of the Expert Committee in toto. So far so good. But they committed the mistake of coming out with their own compromise answers where there were differences between recommendations of the Expert Committee and those of the Paper Setters. For example, in those cases where the Expert Committee recommended that option D alone was correct, since the paper setters have recommended the other two options are also correct, the BSNL decided that options A and D are the correct answers. Again, when the Expert Committee recommended that options C and D are correct in certain other cases, the BSNL decided that only option D will be treated as correct. According to the BSNL, their stand is final and accordingly marks have to be awarded to the candidates.
19. In our considered view, still there are discrepancies and, therefore, still there is scope for improvement. According to the Expert Committee, for some questions, 2 options can be taken as correct, for some other questions all options are wrong and for few other questions, one option is alone correct. But according to paper setters for some questions (3) three options are correct and for some other questions (2) two options are correct. In such circumstance, we shall look forward to the principles laid down by Apex Court which say that merit shall not be allowed to be the casualty of wrong answer key and the correct answers shall not be sacrificed. Further, in such circumstances, as far as possible, the final authority to decide whether a answer is correct or wrong shall be left to the Expert(s). For some questions, however, if the decision of the Expert(s) does not solve all the problem, we are bound to take appropriate decisions. Therefore, there is nothing wrong in accepting the recommendation of the Expert Committee to award one full mark to all the answers where all options are wrong. Again, for a set of questions when the Expert Committee says option D is the only correct answer and for another set of questions when it says, option A alone is the correct answer, the Respondent-BSNL shall go with the said recommendations and not to substitute them with its own compromise formula of awarding full one mark to all who have opted for A, B and D or A and D respectively. Conversely, the recommendation of the Expert Committee that two options for another set of questions also cannot be accepted as it would create further confusion, particularly when there is negative marking. Therefore, all such questions shall be totally ignored.
20. We, therefore, dispose of all these OAs with the direction to the Respondent-BSNL to re-evaluate all the answer sheets of all the candidates based on the aforesaid principles and parameters and prepare a fresh list of qualified candidates. Since the examination was held on 04.03.2012 and candidates are awaiting for their promotion for over an year, the Respondent-BSNL shall ensure that the fresh list of qualified candidates is published as early as possible, preferably within 2 months from the date of receipt of a copy of this order.
21. There shall be no order as to costs.
2. It is a well settled position that right of review is available to the aggrieved persons within the parameters of the Order 47 of the Code of Civil Procedure if filed within a period and not to the third parties as held by the Apex Court in the case of K. Ajit Babu and Others Vs. Union of India and Others JT 1997 (7) SC 24. The relevant part of the said order reads as under:-
The right of review is not a right of appeal where all questions decided are open to challenge. The right of review is possible only on limited grounds, mentioned in Order 47 of the Code of Civil Procedure. Although strictly speaking the O. 47 of the Code of Civil Procedure may not be applicable to the Tribunals but the principles contained therein surely have to be extended. Otherwise there being no limitation on the power of review it would be an appeal and there would be no certainty of finality of a decision. Besides that, the right of review is available if such an application is filed within the period of limitation. The decision given by the Tribunal, unless reviewed or appealed against, attains finality. If such a power to review is permitted, no decision is final, as the decision would be subject to review at any time at the instance of party feeling adversely affected by the said decision. A party in whose favour a decision has been given cannot monitor the case for all times to come. Public policy demands that there should be end to law suits and if the view of the Tribunal is accepted the proceedings in a case will never come to an end. We, therefore, find that a right of review is available to the aggrieved persons on restricted ground mentioned in O. 47 of the Code of Civil Procedure if filed within the period of limitation.
The aforesaid decision has been reiterated by the Apex Court in Gopabandhu Biswal Vs. Krishna Chandra Mohanty and Others 1998 (4) SCC 447. The relevant part of the said order reads as under:-
9. In the case of K. Ajit Babu v. Union of India (1997) 6 SCC 473 : (1997 AIR SCW 3340) to which one of us was party, this Court examined S. 22(3)(f) of the Administrative Tribunals Act, 1985 and held that an application for review under that section attracts the principles contained in Order 47 Rule 1 of the Code of Civil Procedure. Therefore once an SLP is preferred and dismissed, review is not permissible. The same view has been taken by this Court in Raj Kumar Sharma v. Union of India (1995) 2 Scale 23. The Court observed in that case that the Tribunal was in error in entertaining a review petition and allowing it after the special leave petition against its main judgment had been dismissed by this Court and the review petition filed in this Court against the dismissal of the special leave petition had also been dismissed. It was undisputed that the grounds on which the review was sought before the Tribunal was a ground taken in the special leave petition as well as in the review petition filed in this Court. In such a situation, to say the least, it was wholly inappropriate for the Tribunal to sit in judgment on the merits of this Court's order dismissing the special leave petition giving finality to the Tribunal's main order. In the present case, therefore, on the dismissal of the special leave petition by this Court, the judgment of the Tribunal in T.A. No. 1 of 1989 became final and binding as between the parties and the Tribunal had no power to review that judgment thereafter.
10. In the present case, however, it is urged that the four applicants who filed the two review petitions before the Tribunal were not parties to the main petition. They were also not parties to the special leave petition filed before this Court which was dismissed. However they are parties aggrieved and hence are entitled to apply for a review of the main judgment of the Tribunal. It is contended by them that the judgment of the Tribunal holding that the two cadres of Deputy Superintendent of Police and Assistant Commandant were a single cadre till 5-11-1980, has affected the chances of promotion of the applicants and, therefore, the applicants, being persons aggrieved, are entitled to maintain such review petitions when they had not been parties to the earlier judgment as well as the earlier special leave petition. We will assume for the time being that the applicants are persons aggrieved. Even so, the question is whether they can have a judgment which has attained finality by virtue of an order of this Court, set aside in review. There is no doubt that as between the parties to the main judgment, the judgment is final and binding. The respondents, State of Orissa and Union of India, are, therefore, bound to give effect to the judgment of the Tribunal in T.A. No. 1 of 1989 in the case of Gopabandhu Biswal. If this is so, can a third party by filing a review petition get that same judgment reviewed and obtain an order that Gopabandhu Biswal is not entitled to the benefits of the directions contained in the main judgment since that judgment is now set aside? In our view this is wholly impermissible. It will lead to re-opening a matter which has attained finality by virtue of an order of this Court. The applicants, even if they are persons aggrieved, do not have, in the present case, a right of review under any part of Order 47, Rule 1. Even under Order 47, Rule 1(2), the party not appealing from a decree or order can apply for review only on grounds other than the grounds of appeal which were before the appellate Court, and during the pendency of the appeal. In the present case all the grounds which were urged in review were, in fact, urged before the Tribunal at the time when the Tribunal decided the main application and they were also urged by the petitioner in the special leave petition which was filed before this Court. The special leave petition has been dismissed. The same grounds cannot be again urged by way of a review petition by another party who was not a party in the main petition.
3. In view of the above position, this RA is not maintainable. The same is accordingly dismissed.
4. There shall be no order as to costs.
(Shekhar Agarwal) ( G. George Paracken ) Member (A) Member (J) Rakesh