Andhra Pradesh High Court - Amravati
T Vara Prasad vs The Union Of India on 14 August, 2020
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
WRIT PETITION Nos. 45675 OF 2018 AND 102 OF 2019
COMMON ORDER:(per Hon'ble Sri Justice A.V.Sesha Sai) Applicants in O.A. Nos.474 of 2018 and 542 of 2018 are the petitioners in the present Writ Petitions. Orders impugned in the present Writ Petitions are dated 15.11.2018, passed in the aforesaid Original Applications. The said Original Applications were filed before the Central Administrative Tribunal, Hyderabad Bench, Hyderabad, assailing the orders dated 07.05.2018, whereby and whereunder, the respondents cancelled the written examination in connection with the selection held for the post of Ticket Examiners on 10.03.2018.
2. The Office of the Divisional Railway Manager (Personnel Branch) issued a Notification, SCR/P- BZA/212/Commd. Gr-D to TE/2017 dated 27.10.2017, inviting applications from all the erstwhile Group-D staff of the Commercial Tax Department through their respective supervisory officials for a panel to fill up 102 vacancies of Ticket Examiners. After issuing the list of eligible candidates, 2 written examination was conducted on 10.03.2018 and the respondents declared the result on 09.04.2018. Applicants- petitioners herein got qualified in the said written examination. Thereafter, the respondents by way of an order dated 07.05.2018 bearing No.B/P.535/1/TC/Vol.II, cancelled the written examination dated 10.03.2018 on the ground of administrative reasons, while fixing the revised date of examination as 26.05.2018.
3. Applicants-petitioners herein submitted a representation on 16.05.2018, requesting the respondents to finalize the selection in terms of the written examination conducted on 10.03.2018 and declaration of result on 09.04.2018, while mentioning therein that they would appear for the proposed written examination on 26.05.2018 under the protest and by reserving their right to agitate the decision of cancellation.
4. Written examination, as fixed on 07.05.2018, was conducted on 26.05.2018. Prior to declaration of result of the said examination, applicants-petitioners herein filed O.A. Nos.474 of 2018 and 542 of 2018 before the Central Administrative Tribunal, Hyderabad Bench, Hyderabad, on 29.05.2018. The Tribunal passed an order, directing the 3 respondents to dispose of the representations of the applicants within two weeks from the date of receipt of a copy of the order and not to proceed with the selection process basing on the results of the second written examination, till the date of filing of the reply, while directing the O.A. to be listed on 15.06.2018. By way of letter dated 05.06.2018, the Department of Railways disposed of the representations of the applicants and also filed reply, enclosing the letter dated 05.06.2018 and also the complaint dated 10.04.2018, based on which the written examination conducted earlier was cancelled. According to the respondents, the said complaint dated 10.04.2018 was received by the Railways on 30.04.2018 from one Sri K.Babu Rao, an unsuccessful candidate in the results of the first time examination. The respondent-railways have taken a stand that on receipt of the said complaint, certain answer booklets were randomly picked up and found and detected gross irregularities in evaluation of answer sheets and malpractices. According to the respondents, the said aspects made them to take a decision to cancel the results of the written examination and to conduct the re-examination. By way of an order dated 15.11.2018, the Central Administrative Tribunal disposed of the Original Applications with the following directions: 4
"i) To issue a fresh notification and conduct the exam afresh to select candidates for the post of Ticket Examiner against 33 1/3% quota by giving reasonable time to the candidates to prepare and appear.
ii) To allow all those candidates who appeared in the 1st exam and the re-exam, to appear in the proposed exam to be conducted without disqualifying them on grounds of age or any other parameter.
iii) To permit other candidates who are eligible to appear, in order to usher in a healthy competition and select the best among the lot, by conducting the exam and the selection in a vigilant, fair, uniform and transparent manner.
iv) Taking into account that Group D/Group C staff are expected to be computer literate, the Respondents may think of conducting exams in future on a IT platform with objective type questions with highly secure software's which are proven and tested. This will bring in transparency, automated evaluation, evaluation accuracy, economy in conduct of exams, instant result, curbing diversion of regular staff to do evaluation impairing operational functions, augment moral of the employees, build trust in the exams conducted and above all eliminate malpractices by random jumbling of questions candidates wise, etc. Associated action of a pen 5 mounted camera placed in the exam hall or on the body of the invigilator will send real-time video images of the conduct of the exam which can be monitored from a command centre with provision to store such images for future reference. These tools are relatively cheap but highly efficient. Such surveillance would send chilling fear in anyone's spine and would be an effective deterrent against exam malpractices.
The Respondents organization with the strong IT backing can easily adopt the suggestion. The suggestion is made since the Respondents organization is the pride of the Nation and any dent to its image is not in Public interest. We also made it lucid that this is only suggestive and not a directive. It is open to the respondents to do what best they can to make the exams free of all variants of malpractices. The earlier the better lest they have to continue fighting legal battles on exams which can be avoided by harnessing appropriate and well- grounded I.T. solutions. Suggestion may be brought to the notice of the first Respondent for taking necessary action as is deemed fit in the matter in the interests in the Respondents organization.
v) The fact that the respondents do also put in lot of hard work and efforts to organize an exam as much as the candidates in preparing for the exam, we leave it open to the Respondents to act 6 sternly against all those involved in derailing the selection/exam process in question by getting detailed vigilance probe done converting all aspects to the minutest extant, so as to dissuade anyone associated with the exam to indulge in deviant actions leading to cancellation of exams and causing injustice to those who have been honest in writing the exam or submitting themselves to a selection. We are making this observation considering the trend of exam related litigation involving the Respondents.
vi) Time allowed to implement the order is 4 months from the date of receipt of this order."
5. These Writ Petitions challenge the validity and legal sustainability of the said orders of the Central Administrative Tribunal, Hyderabad Bench, Hyderabad.
6. Heard Sri K.R.K.V.Prasad, learned counsel for the applicants-writ petitioners and Sri P.Bhaskar, learned Standing Counsel for the respondent-railways, apart from perusing the material available on record.
7. It is submitted by the learned counsel for the applicants-petitioners herein that the orders passed by the Tribunal are highly erroneous and contrary to law and completely bereft of any valid reasons. It is further submitted 7 by the learned counsel that without verifying the genuineness of the complaint which was very vague and contained no substance, the respondent-railway authorities, by resorting to verification of answer sheets, randomly drew un- substantiated and baseless conclusions to somehow cancel the first written examination result and the said action is highly arbitrary and unreasonable. It is further submitted that the Tribunal, having found fault with the decision of the respondents in cancelling the result by observing at paragraph No.7(iii) of the order that the validity of the decision would obviously raise many doubts in the minds of the applicants, who took the first examination, ought not to have directed the authorities to issue fresh notification and ought not to have recorded a contradictory finding that the examination was polluted with malpractices. It is further submitted that the Tribunal failed to appreciate the fact that Sri K.Babu Rao, on whose name complaint was made, had no knowledge about such complaint till the railways filed reply in the Original Applications, as such, the Tribunal ought not to have given credence to the affidavit of Sri K.Babu Rao to the effect that he did not give such complaint. It is further submitted that after taking a decision for cancelling the written examination result and when the applicants started 8 agitating on the issue, a reference was made to the Vigilance Department and the respondents ought to have awaited the report of the Vigilance Department. It is further submitted that the finding of the Tribunal that the applicants filed Original Applications only after failing in the re-examination is patently illegal and wrong and, in fact, the applicants filed the Original Application on 28.05.2019 and the result of the second written examination was declared on 29.05.2019. It is further submitted that the Tribunal did not record any finding in the impugned order as to what were the infirmities recorded before the Tribunal and the confidential note was prepared on presumptions and assumptions.
8. On the contrary, it is contended by Sri P.Bhaskar, learned Standing Counsel for Railways that there is absolutely no error nor there exists any infirmity in the impugned order, as such, the impugned order is not amenable for any judicial review under Article 226 of the Constitution of India. It is further submitted that pursuant to the complaint dated 10.04.2018 from one Sri K.Babu Rao, the answer booklets of the candidates named in the complaint and certain other booklets were verified and noticed tampering of answer sheets and uneven evaluation of the answer sheets. It is further submitted that the 2nd 9 respondent, having found the irregularities and malpractices that took place, decided to cancel the written examination on 10.03.2018 and to conduct written examination afresh in the interest of employees and to ensure fair selection. It is further submitted that in compliance of the orders of the Tribunal in O.A. No.474 of 2018 dated 15.11.2018, the notification dated 27.10.2017 was cancelled, vide letter dated 18.12.2018. It is further submitted that written examination was conducted on 29.03.2019 and for which 97 candidates were called, but only 91 candidates attended and 6 candidates remained absent and the results of the written examination for the erstwhile Group-D staff of Commercial Department were declared on 08.04.2019, but the authorities deferred the finalization of the selection as per the orders dated 03.01.2019 in W.P. No.102 of 2019. It is further submitted that the petitioners herein did not qualify in the written examination held on 29.03.2019 and their failure shows their incapability and in view of such failure, the petitioners are pressing for finalization of the selection as per the first written examination result declared on 09.04.2018.
9. Respondents 4 to 24 by way of filing counter supported the case of the applicants-petitioners herein. 10
10. In the above background, now the issue that emerges for consideration of this Court is:
"Whether the orders of the Tribunal which are impugned in the present Writ Petitions are sustainable and tenable and whether the same warrant any interference of this Court under Article 226 of the Constitution of India?"
11. The Tribunal, on the basis of the material available on record, posed the following questions to itself:
i) What are the basic parameters of an exam?
ii) Tested against these parameters whether the 1st exam held on 10.03.2018 holds good or fails?
iii) What was the course open to the respondents in such a situation?
iv) Having hesitated to come out straight on facts, what was to be done in such an eventuality by the respondents?
v) Despite the relevant Railway Board order being clear what prompted the respondents to conduct the re-exam?
vi) A question that follows the previous one is what to do next?
vii) Which way does the balance of convenience tilt in the context of different averments and case laws quoted by the learned counsel during the final hearing?11
12. The essence of the case of the applicants- petitioners, as per their pleadings and the submissions/contentions of the learned counsel for the applicants-petitioners herein, is that the respondent-railway authorities, without any valid and reasonable cause, cancelled the written examination and the Central Administrative Tribunal erroneously directed to issue fresh notification, though it found fault with the railway authorities. On the other hand, the case of the respondent- railway authorities is that on the complaint made by Sri K.Babu Rao, the answer booklets of the candidates named in the complainant and the other answer booklets were verified and noticed tampering of answer sheets and uneven evaluation of answer sheets and malpractices.
13. In support of his submissions, learned counsel for the petitioners places reliance on the order of a Division Bench of this Court dated 04.04.2012 passed in W.P. Nos.7963 of 2012 and 7967 of 2012 and also the order of a Division Bench of this Court dated 01.04.2009 passed in W.P. Nos.1295 of 2009 and 6603 of 2009.
14. There is absolutely no dispute with regard to the holding of examination initially on 10.03.2018, declaration of 12 result on 09.04.2018 and cancellation of the same on 07.05.2018 and the date of re-examination on 26.05.2018. Along with the Writ Petitions, a notarized affidavit dated 26.02.2018 said to have been deposed by Sri K.Babu Rao, stating that he did not make any representation in writing or oral to any officials of the South Central Railway, Vijayawada Division, about the discrepancy in the examination conducted, is filed.
15. It is also the submission of the learned counsel that the impugned action is also contra to the letter No.P(R) 605/VIII dated 09.08.2002, wherein a suggestion was made to make it obligatory on the officers to disclose the reasons in the event of cancellation of the selection.
16. It is very much evident from the reading of the order of the Tribunal that after perusing the confidential office note which obviously mentioned about the malpractices, the Tribunal came to a conclusion that the first test conducted was neither reliable nor valid. This Court also called for the answer sheets of the petitioners herein and except petitioner No.1 in W.P. No.45675 of 2018, the answer scripts of the other applicants-petitioners herein contain either over writings or writings with different pens and disparity in the 13 number of pages and giving marks to wrong answers. Therefore, this Court cannot find fault with the orders passed by the Tribunal in directing the fresh selection to be made. It is also clear from the order of the Tribunal that the Tribunal took note of various judgments of the Hon'ble Apex Court and eventually disposed of the Original Applications directing to issue fresh notification. Having regard to the facts and circumstances of the case, the judgments sought to be pressed into service by the learned counsel for the applicants- petitioners herein do not render any assistance to the petitioners. It is also very much clear from the impugned order that the Tribunal also dealt with affidavit aspect of Sri K.Babu Rao and also assigned cogent and convincing reasons while disposing of the Original Application.
17. It is a settled and well-established principle of law that a writ of certiorari cannot be issued unless the order suffers from jurisdictional error or patent perversity. In the instant case, the said contingencies are conspicuously lacking. Therefore, this Court does not find any merit in the present Writ Petitions.
18. Accordingly, both the Writ Petitions are dismissed. There shall be no order as to costs of the Writ Petitions. 14
Consequently, miscellaneous applications pending if any, shall stand closed.
____________________ A.V.SESHA SAI, J _________________________________________ CHEEKATI MANAVENDRANATH ROY, J Date: 14.08.2020 siva 15 THE HON'BLE SRI JUSTICE A.V.SESHA SAI AND THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY WRIT PETITION Nos. 45675 OF 2018 AND 102 OF 2019 Date: 14.08.2020 siva