Central Administrative Tribunal - Delhi
Shri S.K. Kandwal vs Uoi & Ors on 27 July, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.1851/2009 New Delhi, this the 27th day of July, 2010 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Shri S.K. Kandwal, S/o Shri R.P. Kandwal, R/o Unati Vihar, PO: Nehrugram, Dehradun Applicant (By Advocate: Shri M.K. Bhardwaj) Versus UOI & Ors, through: 1. The Secretary, Ministry of Communication & Information Technology, Deptt. of Post, Dak Bhavan, Sansad Marg, New Delhi 2. The Director General, Deptt. of Posts, Dak Bhavan, Sansad Marg, New Delhi 3. The Chief Post Master General, Deptt. of Posts, Uttarakhand Circle, Dehradun Respondents (By Advocate: Shri Duli Chand) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant serving as an Assistant Superintendent Post in the Office of Chief Post Master General, Dehradun Circle, had appeared in the Limited Departmental Competitive Examination (LDCE) for promotion to the cadre of PS Group B for the accumulated vacancies for the period 2003-2006. The examination for the same was held on 16th and 17th February 2008. As the applicant was not among the selected candidates, he had, by taking recourse to RTI Act, obtained the copies of his answer sheets. It is the contention of the applicant that in Paper-III despite giving correct answers to questions 8 (d) and 9 (b) he had been given 0 marking. As each questions carried minimum 3 marks each and the applicant had secured 260 marks as against the cut off marks of 266; it is stated that because of this omission on the part of respondents, the applicant had been denied his chance for promotion to a higher post.
The OA seeks the main relief by way of a direction for giving marks to the applicant for correct answers to questions no. 8(d) and 9 (b) as well as for recalculation of the marks scored by the applicant in the LDCE and declare him successful.
On behalf of the applicant, the learned counsel , Shri M.K. Bhardwaj and for the respondents, the learned counsel, Shri Duli Chand would appear before us. We have considered carefully the submissions by both the learned counsels and also perusal the material on record. On a representation by the applicant, the same has been disposed vide the Respondents order dated 5.2.2008 which states that re-evaluation of answer papers is not permissible under Rule 15 Appendix-37 General Rule, Postal Manual (Vol.IV/Part-II) attached to the General Rules (Postal Manual) Part-II.
3. The main contention of the learned counsel for the applicant would be to prove the correctness of the answers to the aforesaid questions in the light of the keys to the same received from the respondents, again under RTI Act. Further, the stand of the respondents regarding the relevant rules not permitting revaluation of answer papers, would be sought to be rebutted with the argument that what the applicant was seeking was not a re-evaluation, but only a correction of the error. Resultantly, allegations by the the respondents acting arbitrarily and without application of mind have been raised in the OA. It is also submitted that since other similarly placed persons had been given marks to all the correct answers, nonawarding of the same in the case of the applicant has resulted in contravention of his rights under Articles 14 and 16 of the Constitution of India. Further there is an allegation of malafide on the part of the respondents. However, the main contention of the applicant is that since the answers given by the applicant were correct in accordance with the answer given in the keys, the applicant should have been given the marks as per rules.
4. A detailed counter affidavit has been filed on behalf of the respondents. Their stand is that the answer sheets had been thoroughly checked by the Examiner and justified marks had been assigned. Disclaiming any direct responsibility in this regard, the respondents have also mentioned that this was essentially the mandate of the concerned Examiner; whereas the respondents were only concerned with the monitoring mechanism. The main averment for rebutting the contentions in the OA comes forth from their reply to Para 4.7, which is extracted hereunder:
4.6 That the assigning of marks after evaluation of answer scripts is prerogative of examiner and any interference by Respondents will affect the credibility and morale of the Examiner. It is further submitted that evaluation is done taking into account various factors which, inter alia, included interpretation and citing of correct rules and use of appropriate expression by the individual candidates.
5. The Apex Court in Prakash Rattan Gihri vs. State of Bihar {2010 (1) SCC (L&S) 443} had ruled :
Any administrative decision within the realm of public law would be subject to judicial review for being tested on the anvil of the principles of natural justice.
Again in Man Singh vs. State of Haryana & Ors {(2008) 7 SCALE 750}, laying down the principles of law about fair play and reasonableness being the touchstone of any administrative action, had observed that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it."
6. In the aforesaid context, we find it appropriate to dwell a little deeper into the factual contentions made by the applicant and their correctness or otherwise as revealed from the material placed on record before us. Even though the impugned order has referred only to the revaluation of answer papers not being permissible under the relevant rules, the counter affidavit reveals that the respondents had, in fact, taken serious objections raised by the applicant on the basis of information garnered by him through the RTI Act. They had referred the matter to the concerned Examiner and asked for a rechecking/clarification on the points raised by the applicant. Since these form the crux of the matter, we are reproducing them in toto as below:
Question 8 (d) A Govt. servant is residing in a Government accommodation allotted to his son, state the admissibility of HRA to him.
No HRA will be paid to the Govt. servant who is residing his son who already allotted Govt. Quarter. The sentence quoted verbatim here, with its wrong construction, does not appear to make sense. Without prejudice to this observation, let me examine the rule related. The rule is rule 5 of FRSR Part V, Rule 5 (c) (ii) says that a Government servant shall not be entitled to HRA if he/she resides in accommodation allotted to his/her parents/son/daughter by the Government. However, the note given below rule 5 (e) clarifies further that in cases where husband/wife/parents, children, two or more of them being Govt. servants share accommodation allotted to another Government servant, HRA will be admissible to only one of them, at their choice. Therefore, it the situation is that a Govt. servant shares accommodation allotted to his son, HRA can be paid to one of them at their choice. It may be argued that the situation in the question appears speaking not about Govt. servant sharing accommodation, but about Govt. servant residing in Govt. accommodation allotted to his son. Even then, the candidate apparently considered the situation of sharing when he says is his wrong construction, Govt. servant who is residing his son who already allotted Govt. quarter. I, therefore, am of the view that the candidate deserves no marks for his answer.
Question 9(b) The question is whether composite transfer grant is admissible to an officer transferred within the same headquarters on promotion to the post of Sr. Supdt. of Post Offices.
The answer of the candidates is as follows.
No TA if no change of residence is involved. If change of residence involve 1/3 of composite allowance is admissible to him. The rulings related are Govt. of India orders (1), (2) and (3) given below SR 116. Order (1) of these was issued in April, 1998, which was clarified subsequently by order (2) issued in September 1998, and order (3) issued in February 2001. The first of these orders says that 1/3 of composite transfer grant is admissible if an officer is transferred within the same station, provided a change of residence is actually involved. The candidate, obviously, quoted this order in his answer. He omitted to note order (2), which imposes an important rider that composite transfer grant is admissible for transfer within the same station only if it results in an obligatory change of residence necessitates solely on account of the transfer. Thus, I consider that the answer is incorrect and deserves no marks.
It is also pertinent to point out here that the examination was with the aid of books, and therefore, candidates were expected to be analytical rather than restricting themselves to copying rules from the book. Situations created in the question need to be viewed in their totality and judgment arrived at, applying rules correctly and after considering all provisios. It is more so, because the examination was for recruitment to a Group B service of the Government. With clear argument, the examiner had opined that since the examination in this case was with the aid of books, the candidates were expected to be analytical rather than restricting themselves to copying rules from the books. It was more so because the examination was for recruitment to a Group B service of the Government.
It is trite in law that in judicial review Courts and Tribunals must not step into the shoes of the administrative authorities or experts and attempt to substitute their own judgment for those of the former. Further, this is not a case where the question is of an objective type allowing no critical examination in the process. Considering the detailed remarks of the Examiner, we do not find anything prima facie objectionable to his views. We also do not find anything arbitrary on the part of the respondents as they have with all due diligence carried out their exercise of checking the objections raised by the applicant and these have not been found to be tenable. In the facts of the case, we do not find any justification for our intervention. Consequently the OA is found to be devoid of merit and dismissed with no order as to costs.
(Veena Chhotray) (Shanker Raju) Member (A) Member (J) /pkr/