Central Administrative Tribunal - Delhi
Sunil Kumar vs M/O Railways on 1 September, 2016
CENTRAL ADMINISTRTIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.1189 OF 2016
New Delhi, this the 1st day of September, 2016
CORAM:
HON'BLE SHRI SHEKHAR AGARWAL, ADMINISTRATIVE MEMBER
AND
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
Sunil Kumar,
Aged 33 years,
S/o Sh.Bal Kishan,R/o 9A/14, Block-9A,
Trilokpuri,
Delhi ........ Applicant
(By Advocate: Mr.Sourabh Ahuja)
Vs.
Union of India through:
1. General Manager,
Northern Railways,
Headquarter Office,
Baroda House, New Delhi
2. Chairman,
Railway Recruitment Cell,
Lajpat Nagar-1,
New Delhi 110024
3. Chief Personnel Officer,
Northern Railway,
Headquarter Office,
Baroda House,
New Delhi
4. Assistant Personnel Officer,
Railway Recruitment Cell,
2 OA 1189/16
Northern Railway,
Lajpat Nagar-1,
New Delhi ...... Respondents
(By Advocate: Mr.R.N.Singh)
.....
ORDER
Per Raj Vir Sharma, Member(J):
Brief Facts: The respondent-Northern Railway issued Employment Notice No.220-E/Open Market/RRC/2013 dated 30.12.2013 for recruitment to various Group D posts in Pay Band-I of Rs.5200-20200 with Grade Pay of Rs.1800/-. As per paragraph 7 of the said Employment Notice, the recruitment procedure consisted of written examination followed by Physical Efficiency Test (PET). Only those candidates who qualified in the written examination would be called for PET. Passing the PET was mandatory and the same would be qualifying in nature. The candidates would be called for verification of the original certificates based on their merit in the written examination and qualifying PET. Only those candidates who submitted the original certificates/documents during document verification in support of their eligibility would be directed for medical examination. Thereafter the recruitment panel would be strictly based on merit position obtained in written examination.
1.1 Pursuant to the aforesaid Employment Notice, the applicant applied and offered his candidature as a Scheduled Caste (SC) candidate. He appeared in the written examination held in the month of November, 2014. Page 2 of 13 3 OA 1189/16 The result of the written examination was declared on 20.2.2015. As the applicant was not declared as qualified in the written examination, he along with 33 others filed OA No.1001 of 2015 (Sanjay Kumar and others Vs. Union of India and others). The Tribunal, by order dated 17.3.2015, disposed of the said O.A.No.1001 of 2015. Paragraphs 2 and 3 of the order dated 17.3.2015, ibid, are reproduced below:
"2. According the learned counsel for the Applicants, candidatures of the Applicants have been rejected by the respondents without assigning any reason and without disclosing the marks obtained by them in the written examination.
3. In view of the above position, we dispose of this OA at the admission stage itself with a direction to the respondents to disclose the marks obtained by Applicants and if they have secured more marks than the marks secured by the last selected candidate, they shall also be allowed to participate in the physical examination scheduled to be held on 23.03.2015 to 25.03.2015. The Respondents shall also inform them the marks obtained by them in the written examination within 15 days from the date of receipt of a copy of this order. There shall be no order as to costs."
1.2 The applicant and others filed W.P. (C) No. 4926 of 2015 challenging the Tribunal's order dated 17.3.2015, ibid. The respondent- Northern Railway also filed Review Applications seeking review of the order dated 17.3.2015, ibid. The Tribunal, by order dated 15.7.2015, disposed of the Review Applications. Paragraph 2 of the order dated 15.7.2015, ibid, reads thus:
"2. As agreed to by the learned counsel for the parties, these Review Applications are disposed of by this common order directing the Review Applicant to disclose the marks obtained by each of the Applicants (Respondents in the RAs) and the reasons for rejection for their candidature and communicate them by individual letters within a period of two weeks from the date of receipt of a copy of this order. No order as to costs."Page 3 of 13 4 OA 1189/16
The above order dated 15.7.2015, ibid, having been brought to its notice, the Hon'ble High Court of Delhi, by order dated 28.7.2015, disposed of W.P (C) No.4926 of 2015, with the observation that after the reasons for rejecting the candidature of the petitioners are intimated to them, it would be open to the petitioners to take recourse to such remedies, which may be available to them, and that the legal rights of both parties are kept open. 1.3 In purported compliance of the orders of the Tribunal and the Hon'ble High Court, the respondent-Northern Railway issued the order dated 12.8.2015, the relevant portion of which is reproduced below:
"4. The result of the above examination was declared on 20.02.2015 under three categories i.e. "You are not Shortlisted for PET", "You are shortlisted for PET", and "withheld candidate" for using unfair means during the examination. The first category i.e. "You are not shortlisted"
includes candidate lower in merit along with those candidates whose candidature rejected/cancelled for violation/circumvention of examination rules notified in Employment Notification and the subsequent instructions issued for all concerned. You were "Not Shortlisted" for next stage of recruitment process for the reason that you circumvented the examination rules, terms and conditions, given in the notification and the subsequent instructions before the examination i.e. Para 6/OMR, by entering wrong Roll No./Control No. in the OMR Sheet during the examination and as such your candidature was not processed by computer Software in the result document. Accordingly your candidature stands rejected/cancelled for further process of recruitment.
5. It is advised that marks of the candidates, who are otherwise not grouped in rejected category for various reasons, are disclosed only after the process of Physical Efficiency Test (PET) is over. However, in compliance to Hon'ble Tribunal orders quoted above, it is advised that you had your candidature evaluated by the software, you would have scored 83.00 marks but these marks as picked by manual intervention in the result document no way gives you any right of further consideration for appointment in Railways as your candidature itself stands rejected/cancelled and marks are being informed only to comply with the Hon'ble Tribunal orders."
1.4 Thereafter, the applicant approached the Public Grievances Cell of the Hon'ble Prime Minister, and his complaint was forwarded to the Page 4 of 13 5 OA 1189/16 Railway Recruitment Cell of the Northern Railway. The Railway Recruitment Cell, vide communication dated 4.1.2016, informed the applicant as follows:
"......that his case was rejected for violation of examination conditions as he filled the OMR sheet not correctly. He entered the wrong booklet no. by darkening the bubbles in the given place as 423043 instead of 4230043. As the whole result is prepared through a computer based software and any error in filling of OMR sheet leads to its rejection and this rule is uniformly applicable to all candidates."
1.5 Thus, being aggrieved by the aforesaid two communications dated 12.8.2015 and 4.1.2016, the applicant has filed this O.A. seeking the following reliefs:
"a. Direct the respondents to produce the OMR answer sheet filled by the Applicant in the written examination. And b. Quash and set aside the impugned orders dated 12.08.2015 and 04.01.2016. And c. Direct the respondents to appoint the Applicant to Group 'D' post in Ministry of Railways as per his merit with all consequential benefits viz. appointment, seniority etc. And/or d. Pass any other or further order/orders which this Hon'ble Tribunal deem fit and appropriate in the facts and circumstances of the case."
2. It is contended by the applicant that he had correctly mentioned and bubbled his roll number/control number and booklet number in the OMR sheet of the written examination. The respondents have illegally and arbitrarily cancelled his candidature. It is also contended by the applicant that if at all there was any mistake in the OMR sheet, the concerned Invigilator ought to have verified the entries made by him in OMR sheet and ensured rectification of any mistake therein before putting his signature. It Page 5 of 13 6 OA 1189/16 is also contended by the applicant that his candidature ought not to have been rejected basing on any minor mistake crept in the OMR sheet. It is also contended by the applicant that having scored 83.00 marks in the written examination, and the cut-off marks for the SC category candidate being 73.33 marks in the written examination, the respondents should select and appoint him to Group D post.
3. Though Shri R.N.Singh, learned Standing Counsel for Railways, appeared for the respondents, yet no counter reply was filed. In compliance with the directions issued by the Tribunal, vide orders dated 7.4.2016 and 27.4.2016, Shri R.N.Singh, the learned Standing Counsel for Railways, produced before the Tribunal copy of the OMR sheet of the applicant.
4. We have heard Shri Sourabh Ahuja, the learned counsel appearing for the applicant, and Shri R.N.Singh, the learned counsel appearing for the respondents.
5. In support of the case of the applicant, Shri Sourabh Ahuja, the learned counsel appearing for the applicant, relied on the decision of the coordinate Bench of the Tribunal in Neha Nagar, etc. Vs.Delhi Subordinate Services Selection Board, etc., OA No.4445 of 2014 and its connected O.As., decided on 18.12.2015, and the decision of the Hon'ble Delhi High Court in Staff Selection Commission Vs. Ravinder Malik, W.P. ( C ) No. 6794 of 2013, decided on 29.10.2013.
Page 6 of 13 7 OA 1189/16 5.1 In Neha Nagar, etc. Vs.Delhi Subordinate Services Selection Board, etc. (supra) (supra), the applicants submitted their applications in response to the Advertisement No.01/13, issued by the respondent-DSSSB. Their applications were rejected by the respondent-DSSSB on the ground of their not having the requisite qualifications as on the closing date. The respondent-DSSSB took the stand that they used the OMR Technology in respect of the applications for the recruitment examination. If the applicants failed to bubble the required slots indicating their essential qualifications and other details, the OMR Technology rejected their applications. The respondent-DSSSB also pleaded before the Tribunal that the verification of the certificates pertaining to the essential qualifications would be done at the time of appointment only, i.e., after the applicants successfully cleared the examination. The coordinate Bench observed that though the applicants possessed the essential qualifications as on the closing date for receipt of applications, yet in view of their not bubbling the relevant Columns of the OMR Form, or for misunderstanding the instructions contained in the Advertisement, the respondent-DSSSB rejected their applications. The coordinate Bench of the Tribunal also observed as follows:
"11. It is well settled that applications or candidatures or selections normally shall not be rejected by the authorities, basing on the minor mistakes committed by the youngsters in filling up the application forms or in the competitive examinations, if otherwise, they establish their identity and that they are qualified and eligible for consideration of their cases by furnishing the documents in proof of the same....."Page 7 of 13 8 OA 1189/16
In support of its observation, the coordinate Bench of the Tribunal referred to the decisions of the Hon'ble Supreme Court, High Courts of Delhi, Punjab & Haryana, and Rajasthan, and different Benches of the Tribunal, in Commissioner of Police & Others Vs. Sandeep Kumar, (2011) 4 SCC 644; Delhi Subordinate Services Selection Board & Another Vs. Neeraj Kumar and Another in W.P. ( C ) No.1004/2012, decided by the Hon'ble High Court of Delhi on 24.2.2012; Rohit Kumar Vs. Union of India, C.W.P No.13730 of 2012 decided by the Hon'ble High Court of Punjab & Haryana on 27.7.2012; Anil Kumar Vs. State of Rajasthan & Others, S.B.Civil Writ Petition No.657 of 2012 decided by the Hon'ble High Court of Rajasthan on 2.1.2013; Ravindra Mallik Vs. Staff Selection Commission & others, decided by Principal Bench of the Tribunal on 13.2.2013; Arvind Kumar Kajla Vs. UOI & others, OA No.1802 of 2012, decided by the Principal Bench of the Tribunal on 30.10.2013; Subhanta Devi Vs. State of Rajasthan, S.B.Civil Writ Petition No.11269 of 2011, decided by the Hon'ble High Court of Rajasthan on 13.5.2014; and Ms.Deepika & Another Vs. Govt. of NCT of Delhi & others, decided by the Principal Bench of the Tribunal on 2.7.2014. Accordingly, the coordinate Bench of the Tribunal held thus:
"20. In view of the above legal position and in view of the fact that the applicants were already permitted to take the examination provisionally by virtue of the interim orders dated 23.12.2014 and their results are yet to be declared by the respondents, we are of the considered view that the ends of justice would be met if the respondents are directed to declare the results of the applicants and to consider their cases along with others as per his/her merit, after verifying their qualifications or otherwise satisfying themselves with their suitability, in accordance with law, within four weeks from the Page 8 of 13 9 OA 1189/16 date of a copy of this order. The OAs are disposed of, accordingly. No costs."
5.2 In Staff Selection Commission Vs. Ravinder Malik (supra), the respondent was a candidate for the post of Inspector (Central Excise), recruitment whereof was entrusted to the Staff Selection Commission through CGLE. Pertaining to Tier II Examination, the respondent coded the OMR answer sheet with reference to his ticket number being 2201023 instead of 2109123. Notwithstanding that, the optical reader correctly connected the answer sheet to the roll number of the respondent and evaluated the answer sheet and as a result thereof, the respondent qualified to be called for an interview after the written examination. The respondent performed well at the interview and obtained aggregate marks much above the cut-off point. But employment was denied on account of the fact that the petitioner reduced the respondent's marks from 129 to 0 pertaining to Tier II Paper examination on account of the respondent wrongly indicating the ticket number. The Tribunal held in favour of the respondent. The Tribunal's decision was challenged by the Staff Selection Commission by filing writ petition before the Hon'ble High Court of Delhi. In support of its case, the Staff Selection Commission placed reliance on the decision of the Hon'ble High Court in Roshan Lal Vs. UOI & Anr, W.P. ( C ) No. 5375/2012, decided on 1.10.2012. Upholding the Tribunal's decision and dismissing the writ petition filed by the Staff Selection Commission, the Hon'ble High Court of Delhi held thus:
Page 9 of 13 10 OA 1189/16
"10. Further, in the decision relied upon the error was in the test form number i.e. Part B of the answer sheet. In the instant case the error in Part A of the answer sheet. The relevance of said fact is that the instructions to the invigilator are to check that each candidate has correctly filled up the relevant information in Part A of the answer sheet. In the decision cited, the argument predicated on the duty of the invigilator to check the correct filling up of the relevant information was rejected because the obligation to check pertained to Part A and not Part B. In the instant case the wrong information filled up is in Part A and thus it was the duty of the invigilator deputed by the petitioners at the examination hall to check and hence detect any wrong by a candidate in filling up the relevant information in Part A of the answer sheet."
6. Per contra, Shri R.N.Singh, the learned counsel appearing for the respondents, invited our attention to the OMR Sheet of the applicant and submitted that having failed to correctly enter the Question Booklet Number in the OMR Sheet by not darkening the Zero (0) digit at the given place, the candidature of the applicant was rejected automatically during the processing of result by the computer software. It was also submitted by Shri R.N.Singh that the result is processed through a computerized based software without any manual intervention, and the computer software reads the numbers in the form of darkened bubbles only. Thus, it was contended by Shri R.N.Singh that the mistake committed by the applicant in the OMR Sheet cannot be regarded as a minor one, and that because of the said mistake, the applicant's candidature was rejected and the OMR answer sheet was not evaluated. Therefore, the decision of the Tribunal in Neha Nagar, etc. Vs.Delhi Subordinate Services Selection Board, etc.(supra), and the decision of the Hon'ble Delhi High Court in Staff Selection Commission Vs. Ravinder Malik (supra), relied on by Shri Sourabh Ahuja, the learned Page 10 of 13 11 OA 1189/16 counsel appearing for the applicant, are of no help to the case of the applicant.
6.1 In support of his contentions, Shri R.N.Singh, the learned counsel appearing for the respondents, placed reliance on the decision of the Hon'ble High Court of Rajasthan in Manoj Kumar Vs. State of Rajasthan, 2016 SCC Online Raj. 64, and the decision of the coordinate Bench of the Tribunal in Braj Mohan Pachouri Vs. Union of India and another, OA No.857 of 2014, decided on 26.5.2014.
6.1.1 In Manoj Kumar Vs. State of Rajasthan (supra), while dismissing the writ petition, the Hon'ble High Court of Rajasthan has held thus:
"4. Having heard learned counsel for the parties and upon perusal of the materials available on record, in my considered opinion, the error, which was crept in in the application form, may be bona fide but this sort of omission, on the part of the petitioner, was contrary to the instructions and as such I am unable to find any infirmity in the impugned action of the respondents in rejecting the application form of the petitioner.
5. An incumbent, who was an aspirant for appointment to the post of constable, was required to be vigilant while filling up his application form. It was expected of him to have read the requisite instructions and if he has failed to do so, on sympathetic consideration, no indulgence can be granted to him by this Court in exercise of extraordinary jurisdiction of this Court."
6.1.2 In Braj Mohan Pachouri Vs. Union of India and another (supra), the applicant was a candidate for recruitment to Group D post in Railways. His candidature was rejected by the Railways. The respondent- Railways took the stand before the Tribunal that the applicant did not enter the correct code number by darkening the bubbles, and, therefore, the Page 11 of 13 12 OA 1189/16 computer software could not accept the applicant's data and his case was not processed further. After perusing the applicant's OMR Sheet produced by the respondent-Railways, the Tribunal accepted the respondents' plea and dismissed the O.A.
7. After having considered the facts and circumstances of the case and the rival contentions, we have found no substance in any of the contentions of the applicant. From the OMR Sheet of the applicant, it clearly transpires that the applicant entered wrong Question Booklet Number in the OMR Sheet by darkening the bubbles at the given place as 423043 instead of 4230043, as a consequence of which his candidature was automatically rejected during the processing of result by the computer software. The applicant has not placed before this Tribunal any material to show that there was instruction in the OMR Sheet for the Invigilator to verify the entries made by the candidate and to put his signature therein after being satisfied about the correctness of the entries made by the candidate. When the wrong entry of Question Booklet Number by the applicant in the OMR Sheet led to automatic rejection of his candidature, it cannot be said that the mistake committed by the applicant was a minor one which could have been condoned by the respondent-Railways. When in compliance with the orders passed by the Tribunal and the Hon'ble High Court, the applicant was intimated that had his answer sheet been evaluated by the software, he would have scored 83.00 marks, and when in fact the applicant's OMR answer sheet was not at all evaluated and was rejected at the threshold because of Page 12 of 13 13 OA 1189/16 his having given wrong Question Booklet Number in the OMR Sheet, we do not find any substance in the contention of the applicant that in the written examination he had scored 83.00 marks and that the cut-off marks for SC category candidate being 73.33, the respondents should select and appoint him to Group D post. In the above view of the matter, the decisions cited by Shri Sourabh Ahuja, the learned counsel appearing for the applicant, being distinguishable on facts, do not come to the aid of the applicant.
8. In the light of our above discussions, we have no hesitation in holding that the applicant has not been able to make out a case for the reliefs claimed by him in the O.A. Therefore, the O.A. being devoid of merit is dismissed. No costs.
(RAJ VIR SHARMA) (SHEKHAR AGARWAL)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
AN
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