Central Administrative Tribunal - Bangalore
Vijayakumar S Emmegol vs D/O Post on 19 April, 2023
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OA.No.170/00553/2020/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00553/2020
DATED THIS THE 19TH DAY OF APRIL, 2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
Sri Vijayakumar S. Emmegol,
Age: 29 years,
S/o Shrishail V Emmegol,
Working as Postal Assistant,
Chikodi HO - 591 201
Belagavi District,
Residing at:
RMK Layout,
Near Shivaji Garden,
Basaveshwaranagar,
Chikodi - 591 201 .... Applicant
(By Shri P. Kamalesan, Advocate)
Vs.
1. Union of India,
Through Secretary,
Department of Post,
Dak Bhavan,
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OA.No.170/00553/2020/CAT/BANGALORE
New Delhi 110001
2. Chief Post Master General,
Karnataka Circle,
Bangalore 560 001
3. Post Master General,
N.K. Region,
Dharwad 580 001
4. Post Master General,
S.K. Region,
Bangalore
5. Sri Venkateshraddi Kolli,
Inspector of Post,
Sindhanur sub Dn,
Sindhanur 584 128
Raichur District
6. Sri Sujay,
Inspector of Post,
Belthangady Sub Division,
Belthangady 574 214,
S.K. District ....Respondents
(By Shri Vishnu Bhat, Senior Panel Counsel for Respondents No.
1 to 4,
None for Respondent No. 5,
Shri A.R. Holla, Advocate for Respondent No. 6)
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OA.No.170/00553/2020/CAT/BANGALORE
O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
The applicant has challenged the revised results of the Limited Departmental Competitive Examination (LDCE) held for the post of Inspector of Posts, for Karnataka Circle, issued by the Government of India, Ministry of Communications, Department of Posts, Dak Bhavan, New Delhi 110 001, vide letter F. No. A- 34013/01/2020-DE dated 13.11.2020 (Annexure-A4) and the promotion order issued to Respondents No. 5 & 6 vide Memo dated 14.11.2020 and 13.11.2020 (Annexure A5) inter alia seeking a direction to the respondents to issue promotion order to the applicant for the post of Inspector of Posts based on applicant's selection of results declared by Endorsement issued by the Chief Post Master General, Karnataka Circle, Bengaluru vide Memo dated 26.06.2020 (Annexure-A1).
2. Briefly stated the facts as narrated by the applicant are that he is working as Postal Assistant at Bellary Head Office. The applicant appeared for LDCE held for promotion to the cadre of Inspector of Posts for the vacancies of 2016-2018. The LDCE was 4 OA.No.170/00553/2020/CAT/BANGALORE held on 16/17.11.2019 and the results were declared on 24.06.2020 by postal directorate. The applicant was selected in the examination and posting orders were issued on 26.06.2020. The Department of Posts issued an order on 29.06.2020, putting on hold the implementation of results declared on 24.06.2020. The revised results were declared on 13.11.2020, wherein the applicant's name was omitted and two new candidates were selected. The applicant contends that no candidate already selected based on results declared on 24.06.2020 could be removed from the select list. Being aggrieved by the removal of his name in the revised declaration of results dated 13.11.2020, the applicant is before the Tribunal.
3. Learned counsel Shri P. Kamalesan representing the applicant submitted that no revaluation of answer scripts is permissible in any case or under any circumstances in terms of Rule 15 of Appendix No. 37 of P&T Manual Volume IV. After the declaration of results of LDCE made on 24.06.2020 and the promotional and posting order issued to the applicant on 26.06.2020, declaration of revised results made on 13.11.2020 is wholly untenable. Placing reliance on the judgments of the Hon'ble 5 OA.No.170/00553/2020/CAT/BANGALORE Apex Court in the case of Rajesh Kumar and Ors vs State of Bihar and Ors (Civil Appeal Nos. 2525-2516/2013, DD 13.03.2013) as well as the order passed by the Hon'ble Apex Court in the case of Bihar Staff Selection Commission and Ors vs Arun Kumar and Ors, reported in (2020) 6 SCC 362, submitted that the applicant cannot be omitted in the revised select list based on the revised results declared on 13.11.2020.
4. Detailed reply statement has been filed on behalf of the respondents. Further rejoinder is filed by the applicant.
5. Learned counsel Shri Vishnu Bhat representing the official respondents argued that the applicant was declared successful in the first declared result of the examination vide Memo dated 24.06.2020, as such, he was allotted North Karnataka region by issuing promotion/posting order vide Memo dated 26.06.2020. After declaration of the said result, it came to the notice of the department that the final answer keys (Paper-IV) which were taken into account for the purpose of evaluation of OMR were irregularly jumbled in series and thus, the keys were under objection. Putting the results declared on 24.06.2020 on hold, competent authority 6 OA.No.170/00553/2020/CAT/BANGALORE constituted a Review Committee to look into all the objections related to answer keys and to recommend the correct answer of the questions on which objections were raised. The Review Committee recommended for the change of the final answer keys in respect of certain questions. On the basis of the said changes, the result of LDCE IP was re-casted and revised and subsequently revised results were declared on 13.11.2020. In terms of the revised results, the applicant did not come in the zone of selection, accordingly, his result was not declared as selected. In view of re-casting of the results on 13.11.2020, 29 new candidates find place in the selection list, replacing 29 candidates including the applicant who figured in the select list declared on 24.06.2020. There are 38 candidates who have secured more marks than the 29 outgoing candidates in their respective Circles, therefore, it is not practicable to accommodate additional 67 candidates in the select list. Justifying the action of the respondents in issuing the revised result declared on 13.11.2020 on the basis of the revised answer keys notified, learned counsel sought for dismissal of the application.
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6. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record.
7. The undisputed facts are, Limited Departmental Competitive Examination for promotion to the cadre of Inspector of Posts for the years 2016-2017, 2017-2018 and 2018 was held on 16th and 17th November, 2019. Provisional answer keys were published on 15.01.2020 inviting feedback/comments. Final answer keys were published on 24.06.2020 as per recommendations of the Moderation Committees constituted to examine feedback/comments. Results were declared on the same day i.e. 24.06.2020. The applicant was issued with the promotional/posting order on 26.06.2020, by virtue of which his posting was shown in the promotional post at N.K. Region. However, the said orders dated 26.06.2020 were put on hold vide letter dated 29.06.2020 (Annexure-A3) issued by the Director (DE), Department of Posts, Ministry of Communications. The final answer keys published on 24.06.2020 were reviewed again and revised answer keys were published on 13.11.2020 pursuant to which the original results declared on 24.06.2020 were also revised. Subsequently, the 8 OA.No.170/00553/2020/CAT/BANGALORE promotional orders and posting orders were issued to the successful candidates in terms of the revised results dated 13.11.2020. In the aforesaid circumstances, the moot question that arises for our consideration is, whether the revision of the answer keys and the declaration of revised results, disturbing the promotional list announced, is justifiable?
8. In accordance to Rule 15 of Appendix No. 37 of P&T Manual Volume IV, "15. Regarding revaluation of answer books - Revaluation of answer scripts is not permissible in any case or under any circumstances". It is ex-facie apparent that provisional answer keys were notified on 15.01.2020 pursuant to the LDCE held on 16th and 17th November, 2019 and feedback/comments/ objections were called for. To consider the objections/comments, Moderation Committees were set up and the first revised answer keys were published on 24.06.2020. Accordingly, the results were also declared. That being the position, the department would not have re-opened the issue inasmuch as the correctness of the answer keys are concerned. It is well established that based on the opinion of the subject experts, answer keys are assessed considering the objections raised by the stakeholders. As 9 OA.No.170/00553/2020/CAT/BANGALORE per the relevant rules in the Postal Manual, there is no provision for revaluation of answer books. No candidate has any right to claim for revaluation of answer scripts. If the first revised answer keys were published on 24.06.2020 considering the objections/comments of the stakeholders, no further re-examination/re-assessment of the same is permissible. There is no scope for the department to release the revised key answers repeatedly in seriatim. Where a stakeholder/department omits to correct the wrong answer key at the available first opportunity, then, ordinarily, it would debar the department from doing corrections in respect of the wrong answer keys so omitted. These answer keys play a significant role in framing the promotional career of the candidates and such sacrosanct function has to be done with caution and care, not in a cavalier manner jeopardising the rights of the stakeholders. Entertaining repeated objections indefinitely in piecemeal would not give finality to any decision taken in the administration. To put a quietus to the disputes regarding the correctness of the answer keys, a time frame has to be fixed and the same cannot be extended further by releasing revised answer keys leading to revised results. Hence, we are of the considered view that the second revised answer keys released on 13.11.2020 and the revised results of 10 OA.No.170/00553/2020/CAT/BANGALORE 13.11.2020 disturbing the promotion/posting orders already issued pursuant to the first revised results of 24.6.2020 cannot be held to be justifiable.
9. At this juncture, it is apt to refer to the judgment of the Hon'ble Apex Court in the case of Rajesh Kumar and Ors, supra, wherein the Hon'ble Apex Court has observed thus:
"17. That brings us to the submission by Mr. Rao that while re- evaluation is a good option not only to do justice to those who may have suffered on account of an erroneous key being applied to the process but also to writ petitioners- respondents 6 to 18 in the matter of allocating to them their rightful place in the merit list. Such evaluation need not necessarily result in the ouster of the appellants should they be found to fall below the 'cut off' mark in the merit list. Mr. Rao gave two reasons in support of that submission. Firstly, he contended that the appellants are not responsible for the error committed by the parties in the matter of evaluation of the answer scripts. The position may have been different if the appellants were guilty of any fraud, misrepresentation or malpractice that would have deprived them of any sympathy from the Court or justified their ouster. Secondly, he contended that the appellants have served the State efficiently and without any complaint for nearly seven years now and most of them, if not all, may have become overage for fresh recruitment within the State or outside the State. They have also lost the opportunity to appear in the subsequent examination held in the year 2007. Their ouster from service after their employment on the basis of a properly conducted competitive examination not 11 OA.No.170/00553/2020/CAT/BANGALORE itself affected by any malpractice or other extraneous consideration or misrepresentation will cause hardship to them and ruin their careers and lives. The experience gained by these appellants over the years would also, according to Mr. Rao, go waste as the State will not have the advantage of using valuable human resource which was found useful in the service of the people of the State of Bihar for a long time. Mr. Rao, therefore, prayed for a suitable direction that while re-evaluation can determine the inter-se position of the writ petitioners and the appellants in these appeals, the result of such re-evaluation may not lead to their ouster from service, if they fell below the cut off line.
18. There is considerable merit in the submission of Mr. Rao. It goes without saying that the appellants were innocent parties who have not, in any manner, contributed to the preparation of the erroneous key or the distorted result. There is no mention of any fraud or malpractice against the appellants who have served the State for nearly seven years now. In the circumstances, while inter-se merit position may be relevant for the appellants, the ouster of the latter need not be an inevitable and inexorable consequence of such a re- evaluation. The re-evaluation process may additionally benefit those who have lost the hope of an appointment on the basis of a wrong key applied for evaluating the answer scripts. Such of those candidates as may be ultimately found to be entitled to issue of appointment letters on the basis of their merit shall benefit by such re- evaluation and shall pick up their appointments on that basis according to their inter se position on the merit list.
19. In the result, we allow these appeals, set aside the order passed by the High Court and direct that -12
OA.No.170/00553/2020/CAT/BANGALORE
1) answer scripts of candidates appearing in 'A' series of competition examination held pursuant to advertisement No. 1406 of 2006 shall be got re-evaluated on the basis of a correct key prepared on the basis of the report of Dr. (Prof.) CN Sinha and Prof. KSP Singh and the observations made in the body of this order and a fresh merit list drawn up on that basis.
2) Candidates who figure in the merit list but have not been appointed shall be offered appointments in their favour. Such candidates would earn their seniority from the date the appellants were first appointed in accordance with their merit position but without any back wages or other benefit whatsoever.
3) In case writ petitioners-respondent nos. 6 to 18 also figure in the merit list after re-evaluation of the answer scripts, their appointments shall relate back to the date when the appellants were first appointed with continuity of service to them for purpose of seniority but without any back wages or other incidental benefits.
4) Such of the appellants as do not make the grade after re- evaluation shall not be ousted from service, but shall figure at the bottom of the list of selected candidates based on the first selection in terms of advertisement No.1406 of 2006 and the second selection held pursuant to advertisement No.1906 of 2006.
5) Needful shall be done by the respondents - State and the Staff Selection Commission expeditiously but not later than three months from the date a copy of this order is made available to them."
10. The Hon'ble Apex Court has held that though re- evaluation was the better option, considering the facts and circumstances of the said case observed that such of the appellants 13 OA.No.170/00553/2020/CAT/BANGALORE who do not meet the grade after re-evaluation shall not be ousted from service, but shall figure at the bottom of the list of selected candidates based on the selection in terms of advertisement. Applying the said principle, the applicant herein selected in the first selection list cannot be ousted as he has not committed any fraud or mistake. The applicant has not, in any manner, contributed to the preparation of the erroneous key or the distorted result. Similarly, Respondents No. 5 & 6 are promoted and are working in the promoted post since November, 2020. Disturbing their promotion, issuing promotion order to the applicant would not be justifiable. To balance the scales of justice and equity, it would be suffice if the respondents are directed to issue promotional order to the applicant for the post of Inspector of Posts, based on his selection of results declared vide Endorsement issued by Chief Post Master General, Karnataka Circle, Bangalore, Memo dated 26.06.2020 vide Annexure-A1, without disturbing Respondents No. 5 & 6. However, the applicant shall figure at the bottom of the list of selected candidates prepared on the basis of the second revised results declared on 13.11.2020 by creating a supernumerary post, if required. The applicant shall not be entitled for backwages/arrears 14 OA.No.170/00553/2020/CAT/BANGALORE of salary or other incidental benefits except continuity of service for the purpose of seniority in the promoted post.
11. Accordingly, we pass the following :ORDER:
1) The Respondents No. 1 & 2 shall issue promotional order to the applicant for the post of Inspector of Posts based on the applicant's selection of results declared vide Endorsement issued by Chief Post Master General, Karnataka Circle dated 26.06.2020 vide Annexure-A1, by creating a supernumerary post, if required, but his name shall figure at the bottom of the list of selected candidates prepared on the basis of the second revised results declared on 13.11.2020.
2) The appointment/promotion of the applicant shall relate back to the date when the applicant was first promoted with continuity of service, for the purpose of seniority but without any back wages or arrears of salary or other incidental benefits.15
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3) The position of Respondents No. 5 & 6 in the promoted post shall not be disturbed.
4) Compliance shall be made by the respondents in an expedite manner in any event not later than 8 weeks from the date of receipt of the certified copy of this order.
5) OA stands disposed of in terms of above.
6) No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/