Central Administrative Tribunal - Delhi
Lokesh Rana vs Delhi Subordinate Services Selection ... on 21 December, 2012
Central Administrative Tribunal
Principal Bench
O.A. No.2495/2011
MA No.1755/2011
Order reserved on:05.07.2012
Order pronounced on:21.12.2012
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Sudhir Kumar, Member (A)
Lokesh Rana,
S/o Shri R.K. Rana,
R/o H.No.525, Panna Thola,
Near Chopal, VPO Qutubgarh,
Delhi-110039.
-Applicant
(By Advocate : Shri Kuldeep Sehrawat)
Versus
1. Delhi Subordinate Services Selection Board,
Through its Chairman,
FC-18, Institutional Area,
Karkardooma, Delhi-110 302.
2. Municipal Corporation of Delhi
Through its Commissioner,
Civic Centre, Deen Dayal Upadhaya Marg,
New Delhi.
3. The Govt. of NCT of Delhi,
Through its Chief Secretary,
Delhi Secretariat,
New Delhi.
- Respondents
(By Advocate Mrs. Alka Sharma)
O R D E R
Mr. Sudhir Kumar, Member (A):
Applicant of this OA was a candidate before respondent No.1 for the post of Teacher (Primary) under respondent Nos. 2 and 3. A large number of posts under post code No.016/2008 had been advertised by respondent No.1, including various categories of reserved posts. The applicants case was covered through Roll No.01617178, under the reserved category of OBC, and the examination was held on 15.02.2009 in two parts, i.e., Part-I and Part-II. When on 27.08.2009 the result of the Part-II examination was declared, the applicant was shocked to see that the first 13 toppers of the Part-I examination did not get selected in the Part-II impugned examination in any of the categories, and there were many other variations unacceptable to him.
2. Aggrieved, 62 candidates then filed a Writ Petition (Civil) No.11522/2009 before the Honble High Court of Delhi titled Nand Kishore & Ors. v. DSSSB, and another group of 35 candidates, along with the present applicant, filed another Writ Petition (Civil) No.12461/2009 titled Sheetal & Ors. v. D.S.S.B., in which the present applicant was petitioner No.31. In the meanwhile, to buttress his arguments in his Writ Petition, the applicant also filed an RTI application requesting for the supply of photo copies of the descriptive answer-sheet in respect of his candidature, and obtained a copy of the same, produced by him at Annexure P/4 colly. Applicant has alleged that on perusal of the answer-sheet, he discovered that there had been a deliberate and unauthorized tampering with the marks awarded to him, and that the marks awarded to him were reduced from 106 out of 200 to 92 out of 200, while the cut off marks for selection were 102 out of 200. In para-4.7 of the OA he has given the details in this regard.
3. Thereafter, on legal advice, the applicant moved a Civil Miscellaneous Application (CMA, for short) No.4979/2010 before the Honble High Court of Delhi, seeking to separate his case from that of the other writ petitioners in W.P.( C) No.12461/2009 titled Sheetal and others v. DSSSB (Supra), and praying for being allowed to withdraw the Writ Petition insofar as he was concerned. Through Honble High Courts order dated 16.04.2010 his CMA was allowed.
4. Thereafter, the applicant and another one of his colleague Shri Rakesh filed applications under the RTI Act, seeking further information regarding the recruitment process for the post Code 016/2008 concerned. Applicant has produced at Annexure P/7 colly. the reply received by him to the RTI application filed by him, through which he was informed that the marks awarded to candidates are non-changeable, and if any cutting is necessary, it has to be countersigned by the examiner at the time of evaluation. Emboldened by this reply to his RTI query, the applicant sent a detailed legal notice dated 24.12.2010 to the respondent-DSSSB, requesting that he be declared selected for the post of Teacher (Primary), as he had already qualified the examination by scoring more marks than the cut off marks. In the present OA, the applicant has alleged that the respondents neither acted upon nor replied to his legal notice. Therefore, in filing this OA, the applicant has taken the ground that the marks awarded to him were tampered with in such a manner, and to such an extent, that he was declared unsuccessful, and was deprived of the selection to the post for which he had applied for, and that the respondents had indulged in gross arbitrariness and lack of fairness and transparency in considering his case, and in not having taken any action on his request for re-examination of the tampering with his answer-book.
5. MA No.1755/2011 had been filed by the applicant praying for exemption from filing true typed copies of the answer-sheet at Annexure P/4 colly., and the notification at Annexure P/7 colly., which MA is allowed.
6. Respondents filed their counter-reply on 17.02.2012. In this they had taken a preliminary objection under Section 21 of the Administrative Tribunals Act, 1985. They have submitted that the applicant had received a copy of his answer-sheet on 08.03.2010, in reply to his application under RTI Act, 2005, and, therefore, the cause of action, if any, had arisen in favour of the applicant on 08.03.2010, and the applicant should have filed the OA on or before 07.03.2011, while it was filed on 03.06.2011, which is 03 months after the last possible date, even without having filed any MA for condonation of delay. Therefore, it was prayed that the OA is barred by limitation, delay and laches, and deserves to be dismissed in limine on the ground of limitation only. It was further submitted that the OA is hit clearly by the Section 20 of the Administrative Tribunals Act, 1985, also, since the applicant has himself admitted that he had made no representation to the respondents for redressal of his grievances, and that the applicant had not exhausted his remedies by making an appropriate representation to the respondents, and, therefore, respondents have relied upon the order passed by this Tribunal dated 19.09.2011 in OA No.1299/2011 Brij Mohan Verma v. Municipal Corporation of Delhi, in which this Tribunal has relied upon the Apex Court judgment in the case of S.S. Rathore v. State of Madhya Pradesh, AIR 1990 SC 10, to hold that the OA could not be entertained for want of exhaustation of statutory remedy.
7. On merits also, it was submitted by the respondents that the closing date for the applications for the post code 016/2008 under advertisement No.02/2008 was 12.08.2008, and as per the procedure followed by DSSSB, admit cards had been issued to all the applicants, without any scrutiny of their eligibility, which physical scrutiny of applications forms for determination of eligibility is carried out in respect of only those candidates who remain in the zone of consideration as per the merit obtained by them in Part-II (descriptive) examination. It was submitted that since the applicant had obtained only 92 marks out of 200 marks in the said Part-II examination, which were less than the last selected candidates under OBC category through the result notice No.46 dated 06.10.2009, and, therefore, his candidature could not be considered. It was denied that there had been any deliberate or unauthorized tampering with the marks of the applicant, or that there had been any illegal or malafide action on the part of the respondents against the applicant. The averments made in this regard by the applicant were denied by the respondents, stating that necessary corrections had been made in the answer-sheet of the applicant by the examiner/evaluator, and had been duly recorded and authenticated in the answer-sheet itself, and it was submitted that it may be seen that there is no correction on the cover sheet of the answer-book in the final marks given to the applicant, which remain to be 92, and all corrections had been duly attested. It was submitted that the respondents in this OA cannot overrule the marks given by the examiner/evaluator, and similarly the Courts and the Tribunal cannot also substitute themselves for such an expert. It was submitted that if the claim of the applicant is accepted, it would mean that the examiner/evaluator does not have an opportunity to reconsider the marks awarded by him in a question, which would be infringing upon his authority and integrity. It was further submitted that a legal notice cannot be equated with a representation by the applicant himself, and that the respondents are not duty bound to respond to the legal notice. Denying totally that the marks given to the applicant had been tampered with in any manner, or that there had been any discrimination against the applicant, it was prayed that the OA may be dismissed as being devoid of any merit.
8. Respondent No.2 MCD filed a separate affidavit submitting merely that since all the records pertaining to the candidature of the applicant are with Respondent No.1-DSSSB, and the name of the applicant has not been recommended by DSSSB for appointment, and the role of answering respondent-MCD begins only after the dossiers of the selected/recommended candidates are received from DSSSB, therefore, they have no role to play in this matter.
9. Applicant chose to file a rejoinder on 16.04.2012. He had denied that the cause of action had arisen to him only on 08.03.2010, and still he had not made any representation to the respondents, stating that he had sent a detailed representation through his legal notice dated 24.12.2010, seeking redressal of his grievances, and calling upon the respondents that he be declared as a selected candidate on the basis of the actual marks obtained by him, and, therefore, the cause of action arose to him on 24.12.2010, the date of his legal notice, rather than on 08.03.2010, and, therefore, the OA was filed within limitation, and thus it was submitted that there was no need to file any MA for condonation of delay, as the OA was very much maintainable as per the provisions of law. It was submitted that since he had made a representation by way of legal notice dated 24.12.2010 duly served upon respondent No.2, to which they have not even bothered to give reply, he had exhausted all the remedies available to him, and hence, this OA was maintainable as per the provisions of law.
10. Thereafter, the applicant had made a detailed submission in his rejoinder regarding the question-answers as per the answer-sheet, as per photo copies annexed by him at Annexure P/4 colly., and it was reiterated that the allegation of tampering is correct, and true, as the examiner/evaluator has not signed on the places where there have been over-writing in the marks, which were originally awarded to him by the examiner/evaluator. It was further submitted that it is wrong for the respondents to state that a legal notice cannot be equated with representation, as the applicant was only represented through counsel, which is always a legal right of the person on whose behalf the legal notice is issued, and that the respondents were duty bound to reply to the legal notice, as otherwise it has to be presumed that the claim made through the legal notice by the aggrieved person, if not denied through a reply, has been admitted.
11. It was further submitted that the applicant has been discriminated against by the respondents in not taking action against the unauthorized persons who have unlawfully and illegally reduced the marks of the applicant by making overwriting on the originally awarded marks, and that the respondents should have acted upon the legal notice given by him, and should have declared him as successful in the said examination as an OBC candidate. It was, therefore, again prayed that this Tribunal may direct the respondents to declare the applicant as a selected candidate, with all other benefits, from the date of such appointment, and till such orders received, respondents may be directed to keep one seat reserved in the category of OBC for the post of Teacher (Primary) till the finalization of the present OA.
12. During the course of hearing on 10.05.2012 it was felt necessary by the Bench to have a look at the original answer-sheet of the applicant from the first page to the last page (since applicant had produced only incomplete photocopy of the answer-sheet), and, therefore, the respondents counsel had been asked to produce the original answer-sheet, which the respondents did produce, and has been perused by us.
13. Heard. During the course of the arguments, much emphasis was laid by the learned counsel of the applicant on the cuttings in the marks secured as made in the cover sheet table columns by the examiner, while the respondents denied any wrongdoing on their part, and any alteration in the applicants marks obtained by anybody else other than the examiner. We have also gone through the original answer-sheet in detail. Even the applicant has not denied that all the corrections in the marks scored table in the Cover Sheet are in the handwriting of the examiner himself, and that the examiner has put in five extra signatures near the table for the marks scored, in respect of the corrections carried out by him, and has also written cuttings attested at two places.
14. Therefore, it is clear that corrections have been made, but have been made by the examiner himself, and also the corrections have been attested by the examiner. It is seen that certain corrections have been done by the examiner at pages 13-16 and 21 of the answer-sheet also, but the same corrections have been carried out in the marks scored table on the Cover Sheet also, and duly attested by the examiner, by putting his signatures. Since the corrections in the marks obtained by the applicant have been made by the examiner himself, and not by any outside person, as alleged by the applicant in his OA, thus the contention of the applicant that somebody other than the examiner has tampered with the marks awarded to him is without any basis whatsoever, and is rejected.
15. It cannot be anybodys case that an examiner cannot be allowed to change the marks awarded by him through a process of re-checking. In any examination, the examiner does not sit to evaluate the answer-sheet of one candidate alone, but evaluates and awards marks in respect perhaps hundreds of such answer-sheets, and, therefore, if in the process of maintaining proportionality of his discretion in award of marks, an examiner feels or considers that he needs to review the marks earlier awarded by him to a candidate in respect of an answer to a particular question, in which process no second or third person gets involved, neither the respondent No.1, nor this Tribunal can put ourselves in the shoes of the examiner, and arrive at a conclusion different than that arrived at by the examiner, and change the marks given by the examiner. In all such examinations, the examiner is an expert, who alone is best equipped to award the marks, and this Tribunal cannot take upon itself the task or responsibility of assessing as to whether the marks finally awarded by the examiner were correct or not, for arriving at a different conclusion, for which exercise this Tribunal is most ill equipped and incompetent.
16. The insinuation made out by the applicant in the grounds of this OA by the applicant that such corrections were deliberately made to bring down the marks of the candidates below the cut off marks for OBC candidates cannot also be sustained, as is obvious from the original answer-sheet produced by the respondent-DSSSB before us. Only the lower portion of the first page of the answer-sheet, having the table for maximum marks and marks scored table, is available to an examiner, and at the time of undertaking the evaluation of an answer-sheet for awarding of marks, the examiner has no way of knowing as to in respect of which category the applicant is a candidate, as the only thing available to him is the post code, and a tallying number, which in this case was 2537, which number was put on both the upper and lower parts of the answer-sheets cover page, in order to link the answer-sheet with the roll number concerned, and an examiner does not have access even to the roll number of the candidate concerned. Therefore, the insinuation or allegation by the applicant that the examiner has deliberately made corrections in his mark-sheet to bring them below the cut off marks in respect of OBC candidates, has to be denounced and decried and dismissed with the contempt which it deserves, because the examiner could not have had any means of knowing that the answer-sheet available before him was that of an OBC candidate, which information he could have perhaps had access to only if he also had access to the roll number 01617178 of the applicant, and the list of all the applicants at the said examination, which was not the case in this case.
17. The respondents have taken a view that a legal notice does not amount to a representation of the applicant. But, in view of the specific provisions of the Code of Civil Procedure in this regard, we do not find any merit in this submission of the respondents. However, filing of such a representation through a legal notice does not give rise to a cause of action, as the cause of action can arise only from a communication of the reasons for rejection of candidature. In this case it is seen that the applicant had received a copy of his answer-sheet in response to an RTI application on 08.03.2010. Therefore, the cause of action accrued in favour of the applicant to challenge the rejection of his candidature on 08.03.2010, and not on 27.12.2010, when he had sent the legal notice in response to the said rejection of his candidature, as has been wrongly contended by the applicant in his rejoinder.
18. Therefore, there is merit in the contention of the respondents that the cause of action arose in favour of the applicant when he had received copies of his answer-sheet in response to his query under the RTI Act. In fact, in the case of Yogender Dass Bihangam v. Union of India, CWJC No.17085/2009, the Honble Patna High Court has held that even mere receipt of communication regarding non-selection does not constitute a cause of action. In that sense, the cause of action to challenge his non-selection had in fact accrued in favour of applicant on 27.08.2009, when the result of the Part-II examination held on 15.2.2009 was declared, subject to the legal position that the time period of the pendency of his Writ Petition (Civil) No.11522 before the Honble High Court of Delhi in Sheetal and others v. DSSSB (Supra), in which the present applicant was petitioner No.31 till the date his CMA-4979/2010 in Writ Petition (Civil) No.12461/2009 was allowed by the Honble High Court on 16.04.2010, allowing the applicant to withdraw from the Writ Petition filed on his behalf, would not be counted towards the period of limitation. But, even if time period for limitation is counted from 16.04.2010, this OA filed by the applicant on 03.06.2011 suffers from delay, and is not fit to be considered on account of limitation, delay and laches on the part of the applicant.
19. Further, the applicant has nowhere challenged this DSSSB procedure of not letting the examiner know even the roll number, or the form number of the candidate, and being denied all information about the categorization of the applicant whose answer-sheet he is examining, and, therefore, the applicant cannot also be allowed to lay a challenge to the cuttings in the marks as attested at five places by the examiner himself, without the intervention of any second or third persons. It has been held by the Honble Apex Court that when a candidate has appeared at an examination, and has taken a calculated chance in accordance with the rules of that examination, well known to him, only because the result is not palatable or favourable to him, he cannot turn around and subsequently contend that the process of selection itself was unfair, ratio to which effect, and in parallel, has been laid down by the Apex Court in the following cases:
i) Madan Lal v. State of J&K, (1995) 3 SCC 486;
ii) Dhananjay Malik v. State of Uttranchal, AIR 2008 SC 1913;
iii) NIMHANS v. K.K. Raman, AIR 1992 SC 1806;
iv) Osmania University v. Abdul Rayees Khan & Another, (1997) 3 SCC 124;
v) K.H. Siraj v. High Court of Kerala & Ors., (2006) 6 SCC 395;
vi) Manish K. Shahi v. State of Bihar & Ors., (2010) 12 SCC 576;
vii) K.A. Nagmani v. Indian Airlines, (2009) 5 SCC 515;
viii) Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC 227;
ix) Marripati Nagaraja v. Govt. of AP, (2007) 11) SCC 522; and
x) Chander Prakash Tiwari v. Shakuntla Shukla, (2002) 6 SCC 127.
20. Further, the Honble Apex Court has in the case of D.C.S. Negi Vs. Union of India and Others (SLP (Civil) No.7956/2011 CC No.3709/2011) decided on 11.3.2011 held as follows:-
Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21, which reads as under:-
21. Limitation -
(1) A Tribunal shall not admit an application, -
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates ; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section(2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.
A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21 (1) or Section 21 (2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21 (1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21 (3).
In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicates its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non-applicant is not at all relevant(emphasis supplied).
21. In the light of the above decisions of the Honble Apex Court, this Tribunal has to first deal with the point of limitation in every single case before deciding any case. Therefore, since it has been held in para 18 above that this OA was filed beyond the prescribed period of limitation, it is held that this OA is not maintainable, neither under the law of limitation, nor on the basis of the facts, as already discussed above. Therefore, the OA is rejected. Registry is directed to return the original answer-sheet of the applicant to respondent No.1-DSSSB. But there shall be no order as to costs.
(Sudhir Kumar) (G. George Paracken) Member (A) Member (J) San.