Central Administrative Tribunal - Allahabad
P K Tripathi vs Union Of India on 20 February, 2025
Reserved on 14.02.2025
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD
BENCH, ALLAHABAD
ALLAHABAD this the 20th day of February 2025.
Present:
HON'BLE MR. JUSTICE OM PRAKASAH -VII, MEMBER (J)
HON'BLE MR. MOHAN PYARE, MEMBER (A)
ORIGINAL APPLICATION NO. 1594 of 2009
Pankaj Kumar Tripathi S/o Late Paras Nath Tripathi, R/o 135/1 Ganga
Puram, Chhota Baghara, District Allahabad.
..........Applicant
Versus
1. Union of India through General Manager, North Central Railway,
Subedarganj, Allahabad.
2. Chief Commercial Manager, North Central Railway, Subedarganj,
Allahabad.
3. Chief Personnel Officer, North Central Railway, Headquarter,
Allahabad.
4. Shri Anupam Saxena S/o Shri S.C. Saxena presently posted as
Assistant Commercial Manager, Agra Division, Agra.
5. Shri Ashutosh Mishra S/o Shri Kamta Prasad Mishra, presently
posted as Assistant Commercial Manager, Allahabad Division, North
Central Railway, Allahabad.
..........Respondents
Present for the Applicant: Shri Ashish Srivastava
Present for the Respondents: Shri S.C. Mishra
Shri Ajay Rajendra
ORDER
BY HON'BLE MR. JUSTICE OM PRAKASAH -VII, MEMBER (J) By means of present Original Application, the applicant has sought the following reliefs:-
MANISH KUMAR SRIVASTAVA 2 "(i) The Hon'ble Tribunal be pleased to quash the impugned order dated 30.06.2008 whereby the respondent No. 4 and 5 were promoted and order dated 1.12.2008 issued by the respondent NO.2 (Annexure A-1 and A-2 to the original application).
(ii) The Hon'ble Tribunal may kindly be pleased to direct the respondents to set aside the result of viva voce and the respondents may be directed to hold a fresh viva voce test by constituting a new DPC in which the members of the earlier DPC may not be there.
(iii) The Hon'ble Tribunal may graciously be pleased to promote the applicant as Assistant Commercial Manager in Group 'B' cadre against 30% quota vacancy for the year 2005-2007.
(iv) This Hon'ble Court may be pleased to direct the respondents to give all consequential benefits to the applicant.
(v) Any other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case may be given in favour of the applicant.
(vi) Award the costs of the original application in favour of the applicant".
2. The facts in brief in this case are that the applicant was employed in the respondents' department as a Commercial Inspector. On 14.05.2007, the official respondents issued a notification regarding the selection and promotion from Group 'C' to Group 'B' for the post of Assistant Commercial Manager in the North Central Railway, corresponding to a 30% quota vacancy for the years 2005-2007. The applicant, being eligible, submitted an application for the aforesaid post. A written test was conducted on 09.03.2008, and results were declared on 12.05.2008. Applicant was successful among the nine candidates in the written examination. He was subsequently called for the viva voce test, which was held on 25.06.2008. Applicant appeared in the viva voce test with a positive attitude. However, it was unexpectedly revealed on 30.06.2008 that respondent Nos. 4 and 5 had been successful. Being aggrieved, applicant sought information under the Right to Information Act claiming therein that although applicant secured maximum marks in the written examination but he was awarded lesser marks in the viva voce as compared to the selected candidates. Applicant was informed that in the Service Record respondent MANISH KUMAR SRIVASTAVA 3 No. 5 was allotted 25 marks, whereas applicant was awarded only 20.5 marks and in the Viva Voce, Respondent No. 5 secured 24 marks, while he received only 9.5 marks. Applicant stated that according to Annexure No. 17 of the OA, applicant got total marks 248, whereas respondent No. 5 secured 249 marks. Aggrieved against the aforesaid anomaly, applicant preferred a representation dated 15.09.2008, which was decided by the respondents vide order dated 01.12.2008. In the instant OA, applicant has assailed the aforesaid order.
3. Per contra, learned counsel for the official respondents filed counter affidavit wherein it has been stated that written test for the post of Assistant Commercial Manager against 30% LDCE quota was held on 9.3.2008 and result was declared on 12.05.2008. In the said examination, out of 96 candidates appeared in the written test, only 9 candidates including the applicant were declared suitable for the viva voce test. Respondents have stated in the counter affidavit that marks of viva voce test were awarded on the same day for the candidates. However, in the case of respondent No. 5 the ACR for the year 2007-08 was not received on the date of viva voce. Therefore, the marks of respondent No.5 under head 'Record of Service' were worked out on receipt of ACR and were added in the marks of statement. Respondents have also stated in the counter affidavit that there are three channels for writing ACRs as Reporting, Reviewing and Countersigning authorities. The performance of every employee is assessed by these three authorities on the basis of performance of the employee during the period reported upon. If the Reporting Authority rated the applicant as "Outstanding" during the year 2007-08 and the Reviewing Authority has rated him as "very good" on the basis of his performance during 2007-08, therefore, his allegation that he was downgraded by the Reviewing Authority in the ACR during the year 2007-08 without assigning any reason does not hold water. The marks under the head record of service were awarded as per the formula laid down in Railway Board's letter No.E(GP) 97/2/123 dated 19.9.1988 and letter No. E(GP) 2000/ 2/95 dated 16.1.2001 and not on the basis of overall grading in the ACR. It is further stated that there were no adverse remarks in the ACR, thus, there is MANISH KUMAR SRIVASTAVA 4 no reason to communicate the remarks of ACR. Against the final result of the aforesaid post, applicant had submitted a representation dated 15.9.2009 which was considered and decision of the competent authority was communicated to the applicant vide order dated 1/15.12.2008.
4. Private respondent Nos. 4 and 5 have also filed counter affidavit wherein they have stated that selection committee has awarded marks on the basis of overall performance of the individual candidates in the viva voce and record of service. The final result of the examination declared on 30.06.2008 is in accordance with rules after completing necessary formalities wherein the private respondents have been selected on the post of Assistant Commercial Manager. It is also stated that empanelment of the private respondents are based on overall performance in written and viva voce test, which has been judged by the expert selection committee.
5. In reply to the counter affidavit filed by official respondents and private respondent Nos. 4 and 5, applicant has filed rejoinder affidavits in which the applicant has reiterated the facts as stated in the OA and denied the contents of the counter affidavits. It is stated that DPC has finalized the result on 30.6.2008 in favour of the candidates of their choice without having any care of the guidelines of the Board. It is also stated that after declaration of the result of the written examination, the applicant secured 1st position having been obtained highest marks than other candidates by having difference of 18 marks to the next candidates declared successfully in the written examination.
6. We have heard Shri Ashish Srivastava, learned counsel for the applicant, Shri S.C. Mishra, learned counsel for the official respondents and Shri Ajay Rajendra, learned counsel for the private respondents and perused the records.
7. Submission of the learned counsel for the applicant is that applicant was working under the respondents' department on the post of Commercial Inspector. A notification dated 14.5.2007 was issued by the official respondents for selection/promotion from Group 'C' to Group 'B' post of MANISH KUMAR SRIVASTAVA 5 the Assistant Commercial Manager, North Central Railway against 30% quota vacancy for the year 2005-2007. Applicant being eligible applied for the same. A written test was conducted on dated 09.03.2008 and result of the written test was declared on 12.05.2008. Applicant was successful among the nine candidates in the written examination. Information was sent to the applicant for viva voce test to be conducted on 25.06.2008, which was held on scheduled date. Applicant appeared in the viva voce test and was quite optimistic about his success. Surprisingly on 30.06.2008, the final result was declared and respondent Nos. 4 and 5 were declared successful. It is further argued that when applicant was not selected against the vacancy advertised, he sought information under Right to Information Act and it was detected that applicant had secured maximum marks in the written examination but he was awarded less marks than the respondent Nos. 4 and 5 in the viva voce to oust him from the merit list. It was also argued that respondent No. 5 has been allotted 25 marks in the service record and 24 marks in the viva voce test whereas applicant was allowed 20.5 marks in service record and 9.5 marks in viva voce test. It was further argued that Committee/Board constituted for selection which also took the viva voce test has acted maliciously and final result was not prepared on the date of interview itself whereas rule specifically mandate that result should have been prepared on the day of viva voce test itself. To substantiate this argument, learned counsel for the applicant referred to the Annexure No. 1 of the rejoinder affidavit filed on 27.3.2011 particularly note No. 6 at page 63 and further argued that instruction contained in the aforesaid note, it has been mentioned that "awarding the marks and signing the marks statement should take place on the date of viva voce". Learned counsel for the applicant also referred to the note No.7 of the aforesaid page and further argued that viva voce test was conducted without ensuring/availability of the latest confidential report/complete service record in respect of respondent No. 5. It was further argued that Committee/Board acted malafidly. Learned for the applicant also referred to the counter affidavit filed on behalf of the official respondents and further argued that ACRs of respondent No. 5 was not available with the Board inspite of this fact viva voce test was conducted, which is illegal. It was next argued that viva voce MANISH KUMAR SRIVASTAVA 6 test was conducted on 25.06.2008, result was prepared on 30.6.2008 and one of the committee members was to be retired on the same day. Entire viva voce test was planned in the way to extend the benefit to respondent No. 5 and due to this reason, he was awarded total 25 marks in the service record and maximum marks in the interview. Learned counsel for the applicant also referred to the Annexure No. 17 of the OA and further argued that total marks of the applicant was 248 whereas respondent No. 5 has secured 249 marks, who has been allowed 24 marks in the interview. It was next argued that since marks in the interview were to be allotted on the basis of merit and applicant had secured maximum marks in the written test, thus, interview Board should have allotted maximum marks to the applicant also. Thus, referring to the aforesaid fact, it was further argued that committee/board has not acted fairly and only to extend undue benefit to respondent No. 5, result was prepared on the last date on the date of retirement of one of the Members of the Committee. ACR of one year of the applicant was also downgraded from 'Outstanding' to 'Very Good'. Had the same not been downgraded, applicant would have also secured 249 marks and in that situation applicant would have been selected. It was next argued that downgrading of the ACR was made without affording opportunity to the applicant. Thus, on this basis also impugned order is illegal and liable to be set aside. Thus, referring to the entire facts and circumstances disclosed in the OA as well as rejoinder affidavits, prayer was made to allow the OA setting aside the impugned order and directing the competent authority amongst the respondents to issue appointment letter in favour of the applicant quashing the selection of respondent Nos. 4 and 5.
8. Learned counsel for the official respondents argued that malafide on part of the Committee/Board constituted for the selection has been pleaded but Committee Members have not been arrayed as respondents, thus, on this ground OA is not maintainable. It was also argued that applicant is challenging the selection proceeding after participating in it, which cannot be done. It was next argued that applicant had secured maximum marks in the written examination and this fact itself shows that no discrimination has MANISH KUMAR SRIVASTAVA 7 been done on part of the Committee Members. Allotting of marks in the viva voce test is the collective act of the Expert Body which cannot be assessed/interfered in the judicial proceedings. Same is allotted on the basis of performance made by the candidate concerned before the Interview Board. It has no relevance with the marks obtained in the written test. Norms for allotting marks on the basis of ACR have also been followed and the same has been allotted to the successful candidate on the basis of their ACRs. Since ACRs of the relevant years of respondent No. 5 were outstanding, thus, he has been allotted maximum marks. Committee/Board finding his performance upto the marks has also allotted highest marks in the viva voce, which cannot be interfered in this proceeding at this stage. Learned counsel for the official respondents to substantiate his argument referred to the facts disclosed in the counter affidavit as well as annexures annexed with the same and further argued that total marks obtained by the applicant was lower than the total marks obtained by the respondent NO. 5, thus, there is no illegality or perversity in the impugned order.
9. Learned counsel for the private respondent argued that once applicant has participated in the selection proceeding, on being unsuccessful in the same, he cannot challenge the proceeding before the court. It was also argued that viva voce test was held on 25.6.2008 and marksheet of viva voce test was prepared on the same day and was signed by the Committee Member on the date itself. Since complete service record of respondent No. 5 was not available with the Committee and it could become available on 30.06.2008 due to this reason final result was prepared on 30.6.2008. It is also argued that although malafide has been pleaded on part of the Committee Member but applicant has not impleaded them as respondents, thus, plea taken in respect of malafide cannot be taken into consideration. It was also argued that plea taken by the applicant that final result should have been prepared on the day of viva voce is not supported with any evidence rather applicant has misinterpreted the Notes 6 and 7 contained at page 63 of the rejoinder affidavit dated 27.3.2011. It was next argued that Note 6 at page 63 of the aforesaid rejoinder only revealed that marks statement shall be prepared and signed MANISH KUMAR SRIVASTAVA 8 by the Board/Committee on the date of viva voce itself, which has been done in the matter. Referring to the supplementary affidavit dated 1.10.2018 it was next argued that applicant was subsequently promoted vide order dated 31.7.2018 in subsequent recruitment. Pleas taken by the applicant to quash the impugned order are not acceptable, thus, argued to dismiss the OA.
10. We have considered the rival submissions advanced by the learned counsel for the parties and have gone through the entire records.
11. In this matter, as is evident from the record, in several paragraphs of the OA applicant has taken plea that Committee Members have not acted fairly rather maliciously to extend undue benefits to the respondent No. 5 allotting maximum marks in the ACR column as well as in the interview. Plea of the respondents is that since malafide has been pleaded against the Committee Members but they have not been impleaded as respondents. Thus, plea of the applicant cannot be taken into consideration. On close scrutiny of the submission raised across the bar and comparing the same with the pleadings of the parties, we are of the view that plea of the malafide on part of the Committee Members cannot be taken into consideration. It is a settled principle of law that allegations of malafide conduct, being highly prejudicial in nature, cannot be adjudicated upon in isolation. The person against whom such conduct is alleged must be impleaded in the proceedings so that he is given an opportunity to be heard. Failure to join such a party vitiates the very essence of natural justice, as it denies the affected individual the right to rebut and explain the allegations. The Hon'ble Supreme Court in the case of State of Bihar Vs. P.P Sharma reported in 1992 Supp. (1) SCC 222, it was held as under:-
"It is a settled law that the person against whom mala fides or bias was imputed should be impleaded co-nominee as a party respondent to the proceedings and given an opportunity to meet those allegations. In his/her absence no enquiry into those allegation would be made. Otherwise it itself is violative of the principles of natural justice as it amounts to condemning a person without an opportunity. Admittedly, both R.K. Singh and G.N. Sharma were not impleaded. On this ground alone the High Court should have stopped enquiry into the allegation of mala fides or bias alleged against them................"
MANISH KUMAR SRIVASTAVA 9
12. As far as plea of the respondents that applicant participated in the selection proceeding and when he was unsuccessful has challenged the selection process, which cannot be done in the eyes of law. If plea taken by the respondents is compared with the facts and circumstances of the case, we are of the view that plea of the respondents is acceptable. Applicant participated in the interview proceeding. When he was not successful, he challenged the proceedings. In our considered view it is not permissible for the applicant. Hon'ble Apex Court in the case of Chandra Prakash Tiwari and others Vs. Shakuntala Shukla and others reported in (2002) 6 SCC 127 has observed that "no right can be claimed when a candidate appeared in the examination without any protest." In Madan Lal and others Vs. State of J & K and others, [1995] 3 SCC 486, Hon'ble Court has held as under:-
"9 Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves selected to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, [1986] Supp SCC 285 it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such petitioner.
10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been MANISH KUMAR SRIVASTAVA 10 assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee."
13. With regard to awarding of lesser marks in the interview to the applicant as well as highest marks to the respondent No. 5 is concerned, marks in interview are allotted on the basis of collective wisdom of the committee members on the basis of performance of the candidate concerned. Merely securing of highest marks in the written test same is not a ground to accept the plea of the applicant that he should have been allotted highest marks in the interview also. As has been mentioned hereinabove marks in the interview are allotted on the basis of performance of the candidate concerned. It is pertinent to mention here that interview is conducted by the expert body, the court in the judicial proceeding generally did not interfere in it. Hon'ble Supreme Court in the case of Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan (AIR 1990 SC 434) has emphasized that it is not the function of the courts to sit as an appellate authority over the decisions of expert committees unless there is a clear violation of principles of natural justice or a procedural irregularity. The courts generally recognize the expertise of such committees and refrain from substituting their judgment for that of the experts. The relevant portion of the aforesaid judgment are reproduced below:-
"9. It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the Court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the Candida tes. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the MANISH KUMAR SRIVASTAVA 11 Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the Constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction".
14. Plea taken by the applicant for setting aside the impugned order and directing the respondents to constitute a fresh committee for conducting DPC cannot be accepted and no direction could be given to conduct a fresh viva voce test particularly when applicant has participated in the viva voce test and present OA was filed when he was unsuccessful.
15. So far as preparation of final result on 30.06.2008 is concerned, interview was conducted on 25.6.2008. As per pleading of the respondents marks-sheet of the interview was prepared on the same day and was signed by the Committee Member on the day itself. No any reliable evidence has been adduced on behalf of the applicant to take a different view that marksheet of the number allotted in the interview has not been prepared on the day of the interview itself. If letter dated 20.10.1999 issued by the General Manager Estt. (N), Railway Board to General Manager All India Railways are taken into consideration, Note 6 only specify that marks statement of the viva voce shall be signed on the date of viva voce itself, which has been done in the present matter. Thus, plea taken by the applicant in this regard is also not acceptable. Even if downgrading of one year of the ACR of the applicant without affording opportunity to the applicant is taken into consideration then also relief claimed in the matter cannot be allowed for the reasons discussed herein above. It is pertinent to mention here that no specific relief for upgrading of the ACR of the relevant year has been claimed in the matter, thus, on this ground also OA is not liable to be allowed.
MANISH KUMAR SRIVASTAVA 12
16. In view of observations made herein above, the OA lacks merit and is liable to be dismissed. Accordingly OA is dismissed. No order as to costs. All associated MAs are disposed of.
(MOHAN PYARE) (JUSTICE OM PRAKASH -VII)
MEMBER (A) MEMBER (J)
Manish
MANISH KUMAR
SRIVASTAVA