Central Administrative Tribunal - Allahabad
Rajneesh Kumar Yadav vs The Union Of India Through The Secretary on 27 January, 2014
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH,
ALLAHABAD
Original Application No. 527 of 2007
Allahabad this the, _27th day of January, 2014
Honble Mr. Justice S.S. Tiwari, Sr. J.M./HOD
Honble Ms. B. Bhamathi, Member (A)
Rajneesh Kumar Yadav, Son of Sri Jagdish Prasad Yadav, Resident of Military Farm, District Jhansi.
Applicant
By Advocate: Sri Rajiv Sharma
Versus
1. The Union of India through the Secretary, Ministry of Defence, New Delhi.
2. The Quarter Master General QMGs Branch, Army Head Quarters, New Delhi.
3. The Deputy Director General, Military Farm QMGs Branch, Army Head Quarter, West Block III, R.K. Puram, New Delhi.
Respondents
By Advocate: Sri N.C. Nishad
Reserved on 12.12.2013
O R D E R
By Honble Mr. Justice S.S. Tiwari, Sr. J.M./HOD By the instant O.A. following relief(s) has been claimed by the applicant:
(a) This Honble Court may graciously be pleased to allow this application and to issue a direction in the nature of mandamus certiorari quashing the order dated 3-5-2007 passed by the respondent no. 3 (Annexure No. 1 to the compilation No. I to this application)
(b) This Honble Court may graciously be pleased to allow this application and to issue a direction in the nature of mandamus directing the respondent no. 3 to issue a joining letter to the applicant in pursuance of the appointment letter dated 26-5-2006
(c) This Honble Court may graciously be pleased issue a direction in the nature of mandamus directing the respondent no. 3 to decide the pending representation dated 20-3-2007 may be the applicant within such period as may be prescribed by this Honble Court.
(d) This Honble Court may grant any other order or direction which may deem fit and proper under the facts and circumstances of the case.
(e) This Honble Court may award the costs of this original application to the applicant.
2. The facts giving rise to this O.A., in brief, are as follows: -
In pursuance of an advertisement in leading newspaper by the respondents for appointment on the post of Sub Assistant Supervisor (for short SAS) in the department of Military Farm, applicant applied for the same. He appeared in the written test and after being successful in the same, was called for an interview on 15.05.2006. An appointment letter dated 26.05.2006 was issued by respondent No. 3 stating that the applicant has been provisionally selected for the said post. He was required to fulfill certain formalities by filling up the blank form sent to him by the department. He completed the formalities but respondent No. 3 did not issue joining letter to him though other candidates named in the O.A., who had appeared with him in the written test and interview, were permitted to join the said post. The applicant sent representation to the concerned authority in the respondents department in this regard but no satisfactory reply was given rather the respondents published another advertisement for appointment on the post of SAS and also conducted the examination but its result has not been declared so far. The respondent No. 3 ultimately passed an order on 03.05.2007 whereby provisional selection of the applicant was cancelled. No opportunity of hearing was given to him nor any show cause notice was given before cancellation of his provisional selection. Hence, present O.A. has been filed mainly on the grounds that the applicant had cleared the written test and also did well in the interview. Despite issuing provisional selection order, the respondents did not permit him to join on the said post. No reason has been disclosed nor any opportunity of hearing has been given to the applicant before cancellation of his provisional selection, even his representations were not decided by the respondents. There was no occasion for the respondents to re-evaluate the answer sheets of candidates including the applicant. Only the appointment of applicant has been cancelled arbitrarily and illegally.
3. The respondents have filed the Counter Affidavit partly denying the allegations made in the O.A. by the applicant. The factum of written test and interview of applicant has been admitted. Issue of provisional appointment letter has also been admitted. It is alleged that meanwhile certain complaints were received against the evaluation of answer sheets by the then Presiding Officer and other Members from Military Farms. Hence, order of re-evaluation of answer sheets by another Board of Officers was passed by the competent authority i.e. QMG with representatives of other directorate. The applicant was shown to have secured 62 marks initially but after re-evaluation of his answer sheets, he could secure only 43.5 marks hence, he failed to qualify in the merit list of new list of SAS. Other candidates named by the applicant in the O.A. got through even in the re-evaluation of answer sheets hence, they were permitted to join. Accordingly, letter of cancellation of provisional selection of applicant was communicated to applicant by order dated 03.05.2007. Two candidates failed in the re-evaluation. All the 8 vacancies were filled by the selected candidates. The O.A. has no merit and it deserves to be dismissed.
4. The applicant has filed the Rejoinder Affidavit denying the allegations made in the O.A. mainly reiterating the earlier stands taken in the O.A. It is also submitted that in order to adjust new faces, re-evaluation has been done by the respondents.
5. The respondents have filed the Supplementary C.A. reiterating the earlier stands taken in the Counter Affidavit. Another Supplementary C.A. has also been filed by the respondents showing detail of candidates who qualified and ultimately were selected for the said post. In compliance of the Order of Tribunal, the respondents have filed Affidavit and Supplementary Affidavit giving details in regard to appointment of fresh Board of Officers consisting of six officers taken from various units of Military Farms to re-evaluate the answer sheets of the applicant and other candidates with a view to ensure utmost fairness. It is also submitted that in order to ensure impartiality and fairness, a standard solution was prepared to facilitate re-evaluation and the Board so carried out the re-evaluation and fresh merit list was prepared. Initially applicant was awarded 62 marks in the first evaluation out of a total question of 69.5 marks attempted by him. After re-evaluation, the applicant was awarded 43.5 marks only. Photostat copy of his answer sheets has also been annexed by the respondents as annexure-5 on record.
6. In addition to pleadings, the applicant has placed reliance on documentary evidence which is annexure A-1 to annexure A-8 on record.
7. The respondents have also filed documentary evidence by way of annexures which are annexure CA-1 to annexure CA-5 on record. In addition to it, the respondents have also filed annexure SA-1 and annexure SA-2 on record.
8. Learned counsel for the parties have also filed Written Arguments in support of their contention which have been taken on record.
9. We have heard the learned counsel for the parties and perused the papers on record.
10. The main contention of applicant is that he cleared the written examination and appeared in the interview and after interview, a provisional selection letter was issued to him on 26.05.2006 in which it was informed that he was provisionally selected for the post of SAS. However, respondents did not permit him to join on the said post though other candidates who had appeared along with him in the test have been permitted to join. His provisional selection has been cancelled by the order dated 03.05.2007 by respondent No. 3. He has not been given any opportunity of hearing before passing the impugned order. No reason whatsoever has been shown as to why the answer sheets of all the candidates were re-evaluated by a different Board of Officers. There is no provision for cancellation of selection after declaration of result of written examination as well as interview of re-evaluation. It has also been submitted that if there had been irregularity or illegality in the selection procedure, the entire selection should have been cancelled and action should have been taken against the erring and responsible respondents authorities. It has also been submitted that the cancellation of selection of applicant is discriminatory and arbitrary. There was no individual complaint against the applicant but his name has been dropped from the select list of candidates. In support of his contention, learned counsel for the applicant has placed reliance on the observation made by the Honble High Court in the case of Ram Vikas Vs. State of U.P. and others (2002) 1 U.P.L.B.E.C. 352. In that case on the recommendation of selection committee, appointment of Group D employees was made, on complaint of irregularity in selection etc., an inquiry was made by the higher authorities. Government passed orders for cancellation of appointment and ultimately cancelled the appointment without giving any opportunity of hearing to such appointees. The Honble High Court in these circumstances has held that since the petitioner had joined and was working, the cancellation of his appointment would have adversely affected his right which requires a notice on the issues which have been raised in the inquiry report dated 20.04.1996. The petitioner ought to have been given an opportunity to have his say. May it be that the petitioner in his reply could not have stated any fact which would have dispelled the charges levelled against the selection proceedings but justice must not only be done but should always seem to be done. In all fairness and in conformity with the principle of natural justice notice ought to have been given to the petitioner. We have respectfully gone through the above case law and observations made by the Honble High Court. The facts and circumstances of the present case are different. In that case, petitioner had joined the service and then his services have been terminated on certain allegations. In these circumstances, opportunity of hearing was required to be given to the applicant. But in the present case still there was only a provisional select panel and the applicant had still not joined the services and no specific allegation has been made against the applicant himself. Thus, the applicant does not get any benefit of the above case law.
11. Learned counsel for the applicant has also placed reliance on the observation made by the Honble Supreme Court in the case of Rajesh Kumar and another Vs. Institute of Engineers (India) AIR 1998 Supreme Court 5. In that case, on the charge of mass copying, the result of candidates was cancelled and they were debarred for two subsequent years from appearing in the examination. In that circumstances, the Honble Apex Court held that since on record there was no sufficient material to prove the use of unfair means or mass copying, in absence of any material to show that there was copying of answer sheets, plea of department was not accepted by holding that the orders of Institute in cancelling the result of the appellants examination and disqualifying them for two succeeding examinations, were in excess of jurisdiction and are, therefore, quashed with further Order to the respondents to declare the result of appellants forthwith. Apparently, the facts and circumstances of that case are quite different from the one before us.
12. Learned counsel for the respondents has submitted that the department had completed the selection process as per laid down procedure but complaints regarding favouritism and unfair selection of candidates were received in the office of Quarter Master General (for short QMG). A one man inquiry was ordered to find out the facts and based on the report of one man inquiry, re-evaluation of answer sheets of all the candidates who appeared for L.D.C. and S.A.S. was carried out by a Board of Officers different from the previous one which had initially evaluated the answer sheets. In the circumstances of the case, re-evaluation of answer sheets was the only possible alternative hence it was adhered to. Re-evaluation procedure is also present in Education Board and Universities and in the circumstances of the case it is opted as a measure for fair and transparent selection. Since there was no specific allegation against the applicant himself, no opportunity of hearing was given to him. There was general allegation against the evaluation of answer sheets hence, in order to ensure utmost fairness, a standard solution was prepared to facilitate re-evaluation. Board of Officers acted on this line and in the light of standard solution, re-evaluation of answer sheets of all the candidates of L.D.C./S.A.S. category was carried out and a fresh merit list was prepared by the Board. On the initial valuation, eight candidates were short listed for selection and after re-evaluation three of the eight candidates short listed/ provisionally selected earlier could not get place in the subsequent select list and three new candidates figured in the select list. It has also been submitted by the respondents counsel that only preparation of provisional select list does not confer any right of appointment on the applicant. It is also submitted that in the initial evaluation, applicant was awarded 62 marks out of total question of 69.5 marks attempted by him. After re-evaluation, the applicant could get only 43.5 marks. Copy of answer sheet of the applicant has been filed on record by the respondents on the direction of this Tribunal, which is annexure-5, which has been re-evaluated along with other candidates on the basis of standard solution supplied to the Board. Our attention has been drawn towards the confidential letter of QMG dated 20.07.2006 in which it is mentioned that his Office received a number of complaints from the environment alleging favouritism and irregularities in the current recruitment process of Group C staff in Military Farms. On scrutiny it has been revealed that there must have been lapses in evaluation of answer sheets of the written examination conducted by the department. Further, some violation of laid down procedure for recruitment have also been noticed. In order to ensure that the selection process is fair, objective and transparent, he would like to detail a fresh Board of Officers incorporating an independent member from this HQ to re-evaluate all the answer sheets of candidates pertaining to recruitment of SAS/LDC. The fresh merit list of the candidates will be drawn based on re-evaluation. A question paper with model solutions be submitted to Deputy Quarter Master General to facilitate random counter check of evaluated answer sheets. On the basis of these directions, fresh Board of Officers was constituted to evaluate the answer sheets. Our attention has been drawn towards the observations made by the Honble Apex Court in the case of Union of India vs. Rajesh P.U. Puthuvalnkathu and another (2003) 7 SCC 285. The Honble Supreme Court held as follows: -
where from out of the selectees it was possible to weed out the beneficiaries of irregularities and illegalities, there was no justification to deny appointment to those selected candidates whose selection was not vitiated in any manner and accordingly on facts, the decision cancelling the selection in their entirety was rightly held to be irrational by the High Court. .. . In the present case, after receiving the complaints regarding unfairness in evaluation of answer sheets and favouritism, a decision was taken by the QMG to re-evaluate the answer sheets of all the candidates on the basis of model answer sheets and those candidates who cleared the second round, were given appointments. The Honble Supreme Court in the case of State of Bihar and others Vs. Md. Kalimuddin and others 1996 (1) SC page 261 has held, as under: -
Mere preparation of select list for giving appointment does not confer an indefeasible right on the candidate for appointment. Similarly, in the case of Syndicate Bank and Ors Vs. Shankar Paul and Ors. 1997 (2) SC page 294 it has been held that mere preparation of panel of eligible candidates does not give any right to them for permanent absorption.
13. In the light of above facts and circumstances, it is apparent from the record that even though there was no specific provision for re-evaluation of answer sheets but in the circumstances of the case where complaints were received alleging favouritism and unfair evaluation of the answer sheets, a re-evaluation committee has been constituted by the higher competent authority to re-evaluate the answer sheets of all the candidates who were initially selected in the provisional select list. Hence, there is nothing wrong in it if re-evaluation is fair and transparent. It cannot be said that it is illegal in the circumstances of the case. The respondents have furnished the list of candidates who were provisionally selected through the first list and also of the candidates who were finally selected as per second list after re-evaluation of answer sheets. A perusal of final select list which has been filed by the respondents as annexure SCA-1 shows that the last merit of general candidates has gone to 85.5% and that of OBC to 72.5% and 71.5% respectively, and that of SC to 79.5%. The applicant has secured only 43.5 marks. He is far away from the list of selected candidates hence the respondents have done nothing wrong in not selecting him or cancelling his provisional selection for the aforesaid post. We do not want to comment on the answer sheet, filed on record, though apparently its perusal shows that the applicant could not right even the correct spelling of Research Institute, Agriculture and Meter etc. though he had been awarded 09 marks for this answer, in the re-evaluation 05 marks have been given to him.
14. In the light of above discussion, we are of the view that the O.A. has no merit and it deserves to be dismissed. O.A. is hereby dismissed. No order as to costs.
(Ms. B. Bhamathi) {Justice S.S. Tiwari}
Member A Member - J
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