Central Administrative Tribunal - Hyderabad
D.V. Chennakeshwar vs Joseph P. Cherian Reported In (2005) 8 ... on 22 December, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH : AT HYDERABAD OA No.388 of 2008 Date of Order : 22.12.2008.
Between:
1. D.V. Chennakeshwar, S/o. D.V. Jagga Rao, Aged about 36 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
2. M. Shekar, S/o. M. Muniratnam, Aged about 39 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
3. M. Naresh Raju, S/o. N. Kalidas, Aged about 32 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
4. R. Anuradha Devi, W/o. J. Venkat, Aged about 27 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
5. L. Pandurangam, S/o. L. Manikyam, Aged about 39 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
6. L. Ravi Prasad, S/o. E.S.R. Sastry, Aged about 39 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
7. B. Bhavani Prasad, S/o. Rajamouli, Aged about 34 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
8. M.S.G. Subramanyam, S/o. M. Sarangapani, Aged about 28 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
9. K. Yadgiri, S/o. Late K. Rajaiah, Aged about 43 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
10. G.L. Somayajulu, S/o. G.S. Murthy, Aged about 39 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
11. Ch. Ganesh Rao, S/o. C. Hanumantha Rao, Aged about 48 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
12. V. Winfred, S/o. V. Winston, Aged about 37 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
13. D. Kiran Kumar, S/o. D. Keerthi Kumar, Aged about 36 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
14. V. Mahesh, S/o. V. Venkatesan, Aged about 32 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
15. C. Ravi Babu, S/o. C. Chandra Shekar, Aged about 35 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
16. S. Ashok Singh, S/o. S.I. Singh, Aged about 36 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
17. B. Rajkiran, S/o. Gangya, Aged about 40 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
18. Anup Kumar Pandey, S/o. Dhurander Pandey, Aged about 37 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
19. M. Ramakoteshwar Rao, S/o. M. Venkolanaraiah, Aged about 47 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
20. K. Tulsi Das, S/o. Late K. Venkataswamy, Aged about 35 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
21. C. Dinesh Reddy, S/o. Jeevan Reddy, Aged about 31 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
22. G.V.S.S.L.N. Sharma, S/o. G. Gopalakrishna, Aged about 31 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
23. N. Sridhar, S/o. G.M. Narayana, Aged about 36 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
24. R.V. Yognder, S/o. Venkatnarsu, Aged about 38 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
25. M.S. Vasu, S/o. N. Narasimulu, Aged about 36 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
26. D. Vijaya Kumar, S/o. D. Obleshu, Aged about 43 years, Occ: TTE/SC, South Central Railway, Secunderabad Division, Secunderabad;
27. Janardhan, S/o. Satyanarayana, Aged about 44 years, Occ: TTE/KZJ, South Central Railway, Secunderabad Division, Kazipet;
28. B. Nagulu, S/o. Bhulya, Aged about 34 years, Occ: TTE/KZJ, South Central Railway, Secunderabad Division, Kazipet;
29. R. Rajendra Prasad, S/o. Pochaih, Aged about 30 years, Occ: TTE/KZJ, South Central Railway, Secunderabad Division, Kazipet;
30. Ch. Madavi, W/o. B. Santosh, Aged about 29 years, Occ: TTE/KZJ, South Central Railway, Secunderabad Division, Kazipet;
31. K. Issac Praveen Kumar, S/o. K. Franklin George, Aged about 34 years, Occ: TTE/KZJ, South Central Railway, Secunderabad Division, Kazipet;
32. Ch. Gopal Rao, S/o. C. Hnaumantha Rao, Aged about 47 years, Occ: TTE/KZJ, South Central Railway, Secunderabad Division, Kazipet;
33. B. Suramouleshwar Rao, S/o. B. Narasaiah, Aged about 40 years, Occ: TTE/KZJ, South Central Railway, Secunderabad Division, Kazipet;
34. D. Srinivas Yadav, S/o. D. Mallaiah, Aged about 40 years, Occ: TTE/KZJ, South Central Railway, Secunderabad Division, Kazipet;
35. N. Srinivas, S/o. N. Ramulu, Aged about 33 years, Occ: TTE/KZJ, South Central Railway, Secunderabad Division, Kazipet;
36. M. Srinivas Rao, S/o. Shankaraiah, Aged about 33 years, Occ: TTE/KZJ, South Central Railway, Secunderabad Division, Kazipet;
37. A.N.S. Prasad, S/o. A. Veeraiah, aged about 41 years, Occ: TTE/KZJ, South Central Railway, Secunderabad Division, Kazipet. .......Applicants AND
1. The Divisional Railway Manager (P), Secunderabad Division, S.C. Railway, Sanchalan Bhavan, II Floor, Secunderabad- 500 071;
2. The Senior Divisional Commercial Manager, Secunderabad Division, S.C. Railway, Sanchalan Bhavan, II Floor, Secunderabad- 500 071;
3. The Senior Divisional Personnel Officer, Secunderabad Division, S.C. Railway, Sanchalan Bhavan, II Floor, Secunderabad- 500 071. .......Respondents Counsel for the Applicant : Mr. K. Sudhakar Reddy Counsel for the Respondents : Mr. V. Rajeswara Rao, SC for Rlys.
CORAM:
THE HON'BLE MR.JUSTICE P. LAKSHMANA REDDY,VICE-CHAIRMAN THE HON'BLE MR.R. SANTHANAM : MEMBER (ADMN) (Order per Hon'ble MR.JUSTICE P. LAKSHMANA REDDY,V.C. )
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Heard Mr. K. Sudhakar Reddy, learned counsel for the applicants and Mr. V. Rajeswara Rao, learned standing counsel appearing for the respondents.
2. This application has been filed by 37 Senior Traveling Ticket Examiners, who are working in the Secunderabad Division, South Central Railway to quash the cancellation of the written examination results and also seeking cancellation of the fresh notification issued for holding the written examination in respect of the examination conducted for promotion to Head Traveling Ticket Examiner ( H.T.T.E.).
3. The relevant facts of the case in brief are as follows:-
All the applicants are working as Senior Traveling Ticket Examiners in scale Rs. 4000-6000/- (RPS) in Secunderabad Division of the South Central Railway. The respondents called for 198 candidates including all the applicants to appear in written examination for selection to the posts of Head Traveling Ticket Examiners in the grade of Rs. 5000-8000/- (RPS) vide notification dated 15.2.2008. In pursuance of the said notification, 187 Senior Traveling Ticket Examiners have appeared for the examination held on 08.03.2008 and 16.03.2008 and also supplementary examination was held on 05.4.2008. Results of the written test were published on 08.05.2008. The selection was purely based on written examination and scrutiny of the records. The results of the written examination was published on 08.05.2008. According to which 147 candidates were qualified in the written examination. Thereafter, scrutiny of records were taken up in respect of those qualified candidates and panel was prepared and sent for approval to the competent authority. At that stage on 10.5.2008, about 17 failed candidates submitted a compliant petition to the Divisional Railway Manager alleging some mass copying during the written examination. In that compliant, they have specifically named, Mr. Anil Kumar and Mr. J.Ravi as persons who indulged in copying. On such compliant, the Divisional Railway Manager, nominated a committee to inquire into truth or otherwise of the allegations made in the compliant. The committee submitted a report on 09.06.2008 stating that they have verified all the 181 answer sheets and found in several cases that same mistakes have been made by the candidates sitting in the same room in respect of objective type of questions and also found 8 candidates bearing Roll Nos. 103 to 109 and 113 who appeared for written examination on 16.3.2008 sitting in Room no. 5 have given identical answerers to question No. 6 of Part-I descriptive type and the answer was verbative in all the above said 8 answer sheets including the language and type of the answer and the the said style and language does not match with the language used for other descriptive answers in the same answer sheets. They further found that the candidates holding Roll Nos. 194 & 195 who were sitting in Room No. 9 appeared in the examination held on 16.3.2008 answered to question Nos. 4, 7 & 5 the same answers word for word to certain extent. Basing on those irregularities, the committee concluded that copying of objective type questions cannot be drawn as question bank with answers is provided with all the candidates for objective type questions and therefore candidates committing the same mistake may be due to co-incidence. But so far as the verbative reproduction of the answers seems to indicate that either they copied from each other or circulated a chit containing the answer. Similarly in respect of Roll Nos. 194 & 195, the committee concluded that both of them copied verbation included paragraphs, capital letters, sub headings and therefore they apprehend that the two candidates have resorted to copying. On such facts, the committee has come to a conclusion that certain irregularities have been committed in the written examination. Basing on that report, the competent authority DRM cancelled the entire written examination by the impugned order dated 10.06.2008 and also re-notified the said posts on the same day by way of other notification.
4. Aggrieved by the same, 37 Senior Traveling Ticket Examiners who were qualified in the list published, filed the present O.A. challenging the cancellation and re-notification and also seeking consequential direction to the respondents to complete selection process on the basis of the results declared on 08.05.2008 and contending as follows:-
"a) The action of the respondents in canceling the selection process to fill up 124 vacancies of Head Traveling Ticket Examiners and the results of the written test declared vide office letter of even no. dated 08.05.2008 for administrative reasons and the issuance of the consequential notification calling for formation of panel/selection for promotion to the post of Head Traveling Ticket Examiners in grade of Rs.5000-8000( RPS) in Commercial Department without furnishing any valid reasons for canceling he same except merely mentioning that the same stands cancelled due to administrative reasons is illegal, arbitrary, unjust, unfair, violative of principles of natural justice and violative of Article 14,16, 21 of the Constitution of India besides being opposed to all cannons of equity, justice and fair play.
(b) The respondents ought to have seen that after due process of appearing for written examinations the Railway Administration declared the results of the written examinations on 08.5.2008 and all the applicants herein qualified in the written examination.
(c) The respondents ought to have seen that the entire procedure in notifying the selection and the conduct of the examination and the selection process is under scrutiny by the Hon'ble Tribunal and the very fact that the Hon'ble Tribunal refused to interfere with the selection procedure by issuing interim orders is ample proof to safely conclude that there were no serious irregularities in the selection process. Under such circumstances, the respondents ought to have proceeded further with continuing selection process or at least ought to have waited for the decision of this Hon'ble Tribunal.
(d) The respondents ought to have seen that the reasons for illegal act by the said persons i.e. V.R. Anil Kumar & J. Ravi cannot form the base for canceling the entire selection process and such cancellation will affect the legal rights of the successful candidates who have attended and wrote the examination. The applicants had contended that for the illegal act committed by two of the successful candidates the other successful candidates cannot be punished by way of cancellation and the authorities were at liberty to intimate disciplinary action against erring candidates but cannot punish the other successful candidates who have attended the examination and succeeded in the examination.
(e) The respondents ought to have seen that a bench of this Hon'ble Tribunal in O.A. No. 778 of 2005 under similar circumstances had suspended the fresh notification and cancellation of the results declared in the examinations conducted for selection panel of HTTEs in Guntakal Division.
(f) The respondents ought to have seen that in O.A. No. 229 of 2007 and 370/2007 decided on 19.12.2007 a bench of this Hon'ble Tribunal under similar circumstances had held that "The promotion of those persons who did not indulge in any malpractice but who stood on their own should not be cancelled/reverted from the promotion already given. In other words, the respondents ought not to have cancelled the entire panel and ordered for fresh selections for all the vacancies. They may be at liberty to do so only in respect of those candidates who were found to have indulged in malpractices and not the others. In view of the above, we set aside the impugned order dated 23.3.2007 cancelling the entire panel already announced with a clear direction to the respondents to cancel the candidature of only those candidates who figured in the investigation report as having been benefited by the malpractice adopted by them and promote the remaining candidates who were not found to have been involved in any such malpractice.
In view of the various judicial pronouncements, the action of the respondents in canceling the entire notification along with the letter declaring results of the written test is totally arbitrary, illegal, unjust, unfair, violative of principles of natural justice and violative of Article 14,16,21 of the Constitution of India besides being opposed to all cannons of equity, justice and fair play."
5. The respondents have contested the application and filed counter reply stating that the written examination was held in two batches. The Sl. No 1 to 100 in the first batch on 08.3.2008 and Sl. No. 101 to 198 in second batch on 16.3.2008 and supplementary written examination was held on 30.3.2008, as a result of which, 129 candidates were qualified against UR posts and 9 S.C. and 2 S.T. candidates are qualified against relaxed standards. The list of qualified candidates in the written examination was published vide proceedings dated 08.05.2008. Two days thereafter on 10.5.2008, some of the candidates who did not qualify in the written test submitted representation alleging mass copying/malpractices in the written examination. The Divisional Railway Manager, Secunderabad nominated a committee to investigate into the matter. Based on the report submitted by the committee, the Divisional Railway Manager decided to cancel the written examination and to conduct fresh selection and there is no irregularity or illegality in the cancellation and re-notification. The respondents have relied upon the judgment of the Hon'ble Supreme Court in the case of Union of India Vs. Joseph P. Cherian reported in (2005) 8 SCC at page 180 and also the decision of the Division Bench of the Punjab and Haryana High Court in the case of Satpal Singh Vs. State of Punjab reported in 2003 (6) SLR 356 and also another decision of the Division Bench of the Punjab and Haryana High Court in the case of Bhupender Singh Vs. Sate of Haryana reported in 2005 (6) SLR 639 wherein it is held that even selected candidates do not have an indefeasible right to be appointed on the post for which a selection has been made and that even after selection is complete, the authorities are at liberty not to make any appointment and that if the inquiry revealed that there were serious irregularities in the conduct of examination and unfair means on a large scale were adopted and there was leakage of question papers and its transmission to candidates at other centers through modern modes of communication was not ruled out. the decision to cancel the examination is justified.
6. The respondents have further submitted that the Divisional Railway Manager after considering the entire report submitted by the Committee had decided to cancel the selection, but not merely for the acts committed by Sri V.R. Anil Kumar and J. Ravi alone and, hence, the contentions of the applicants that cancellation of the selection will affect the legal rights of the applicants and the respondents have punished the successful candidates for no fault of them are not legally tenable .
7. It is further pleaded that the applicants had qualified in the written test which has been cancelled for the bonafide reasons, they could as well appear in the written test now notified and could have proved their ability once again. Instead, they have approached this Tribunal and challenged the bonafide decision taken by the Divisional Railway Manager in cancelling the entire selections, even though such decision has caused no prejudice to the applicants. The respondents have replied that the decisions of this Tribunal relied on by the applicants are distinguishable on facts and therefore the decision in those O.A.s and, the proposition of law laid down by this Hon'ble Tribunal in O.A 778 of 2005 are not applicable to the facts of this case. In the cited case, the cancellation was done due to technical reasons whereas the cancellation in this case is due to malpractices taken place in the written test. The respondents therefore prayed for dismissal of the O.A.
8. Heard both sides. We have perused the entire record and learned counsel for the respondents produced the entire record relating to the HTTE Selection which is noted as "Confidential" for the purpose of perusal of this Tribunal. We have perused the pleadings and note on the subject " Report" investigation done on alleged irregularities committed during the written examination conducted for the selection to the post of H.T.T.E.S in the scale of Rs. 5000-8000/- in South Central Division held on 08.3.2008, 16.3.2008 and 5.4.2008.
9. The counsel for the applicant reiterated the contentions raised in the application and also relied upon the decisions of this Tribunal cited in the application. On the other hand, the learned counsel for the respondents reiterated the contentions raised in the reply and also relied upon the decision referred to in the reply statement.
10. The points that arise for consideration in this case are
i) whether the respondents are entitled to cancel the selection of all the candidates appeared for the written examination on the ground that some of the candidates appeared in the examination indulged in malpractice viz. copying ?
ii) to what result?
11. It is not disputed that the reasons for cancellation of the results in the written examination is only on the ground of alleged mass copying by some of the candidates who appeared for the examination and there is no other reason for cancellation. It is also not disputed that the examinations were conducted on 08.3.2008, 16.3.2008 and 5.4.2008 and nobody complained about the mass copying till the results are published two months thereafter i.e. on 08.5.2008. If at all there was mass copying, it should have been known to all the candidates who appeared for the examination and in which case they should have complained to the authorities immediately to take necessary steps for cancellation of the examination and for re-conducting the examination. The persons who complained mass copying kept quiet for a period of two months and only after publication of the results, those who have failed submitted complaint to the Divisional Railway Manager alleging mass copying in the examination held two months prior to their complaint. On that ground alone, the respondents ought not to have cancelled the entire examination. However, as the Divisional Railway Manager wanted to know the truth, he decided to get the matter investigated into and appointed an inquiry committee. The inquiry committee did not point out any other irregularity other than the irregularity of suspected mass copying in respect of Roll Nos. 103, 104, 105, 106, 107, 109 & 113 who appeared for the written examination on 16.3.2008 in Room No.5. Similarly, they have found irregularity of suspected copying in respect of Roll Nos. 114 & 195 who wrote the examination on 16.3.2008 in Room No. 9. Total number of candidates who wrote examination in Room No.9 is 13. So far as the total number of candidates who wrote examination in Room No.5 is 20. Only in those two rooms, mass copying was suspected. All of them wrote examination on 16.3.2008. So far as those candidates who wrote examination on 8.3.2008 and 5.4.2008, no irregularities were found. Even in respect of candidates appeared in the examination on 16.3.2008, only those who wrote examination in Room No. 5 & 9 alone was suspected for copying and that too in respect of 8 candidates in Room No.5 and two candidates in Room No.9 and not all the candidates who wrote the examinations in those two rooms also.
12. Now, the law is well settled that on account of suspected copying by some candidates, the results in respect of other candidates in respect of whom no irregularities were found, cannot be cancelled. In other words, for the fault of some of the candidates who appeared for the examination, all others who have become qualified without committing any malpractices cannot be penalised by asking them to write further examination. In recent case, the Division Bench of this Tribunal, in which one of us is a party in O.A. Nos. 229 and 370 of 2007 dated 19.12.2007 relying upon the decision of the Hon'ble Supreme Court in the case of Union of India & Ors. Vs. Rajesh P.U. Puthuvalnikathu and another reported in 2003 SCC ( L & S) 1048, held that the entire panel cannot be cancelled and that the respondents can cancel the candidature of only those candidates who figured in the investigation report as having been benefited by the malpractice adopted by them. Earlier to this decision also, another Division Bench of this Tribunal in O.A. No. 778 of 2005 dated 19.9.2005 relying on the very same judgment of the Hon'ble Apex Court held on the similar set of facts that the cancellation of results of the written examination is not justified. It was also a case filed by Senior T.T.Es in Guntakal Division of S.C. Railway. In that case also written examination was conducted on 17.7.2005 and 27.7.2007 and the results were declared on 1.08.2005. The said publication of results were cancelled on 31.08.2005 on the ground of technical lapse without specifying what is technical lapse. But in the counter, the respondents pleaded after the results were published on 1.08.2005, a joint representation of 20 employees who failed in the written examination was received by the respondents contending that prior to the examination the alleged question bank was not made available in time to them and as per Railway Board guide lines, the proportion of objective type questions should be 30:70, but there were only 20 objective type questions while allotting marks for subjective questions at 80 etc. and this Tribunal held that the representation was submitted after the announcement of results of the written examination and that none of the persons who filed the representation had raised any objection at the time of written examination or thereafter till such time the result was announced and therefore the cancellation of the results of the examination at the instance of failed candidates who submitted representation after pronouncement of the results is not valid. This Tribunal held that the cancellation order dated 31.08.2005 is not sustainable in the eye of law and directed the respondents to proceed further on the basis of the result of the written examination held on 17.07.2005 and 29.07.2005 declared by order dated 1.8.2005. Of-course, in the said case, the reason for cancellation is not malpractice in the examination.
13. In respect of both the cases, the cancellation was at the instance of failed candidates. It is not the case of the candidates who submitted representation to the Divisional Railway Manager in this case that they came to know about the mass copying only after publication of the results. In the event of mass copying, if any, it must have come to the notice on the date of written examination but none of the candidates who appeared for the examination complained of any such mass copying. However, the Divisional Railway Manager, got it investigated and found that some 12 people indulged in malpractice. The respondents are at liberty to cancel the results of those 12 candidates and direct them to appear for further examination to be held for them after taking disciplinary action against them. But on account of malpractice adopted by those 12 candidates, the entire selection cannot be cancelled, where there is no possibility of segregation, cancellation is permissible. But where there is possibility of segregation of those who committed mistake for malpractice, there is no justification in cancelation of entire results of the examination. Therefore we consider that this is a fit case to direct the respondents to consider empanelment of those qualified candidates in respect of whom no malpractice have been alleged or even suspected. This point is found in favour of the applicants accordingly.
14. In the result, the impugned cancellation and re-notification of all the posts dated 10.06.2008 are set aside and the respondents are at liberty to take appropriate action against those who are found indulged in malpractice after segregating them and to proceed with the empanelment in respect of other candidates in respect of whom no malpractice is suspected. Accordingly, the O.A. is disposed of. However, there shall be no order as to costs.
(R.SANTHANAM) (P. LAKSHMANA REDDY)
Member (A) VICE- CHAIRMAN
Dated 22nd December, 2008
(Dictated in open court)