Central Administrative Tribunal - Allahabad
Ashok Kumar Tiwari vs U.O.I & Ors 1996 (1) Atj 321 And The ... on 10 February, 2012
(RESERVED) CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH ALLAHABAD ALLAHABAD this the 10th day of February , 2012. HONBLE MR. SANJEEV KAUSHIK, MEMBER (J) HONBLE MR. B. K. SINHA , MEMBER (A) Original Application Number. 1379 OF 2010. Ashok Kumar Tiwari, S/o Shri Har Narain Tiwari, aged about 48 years, R/o 83-L 35P, Sainik Colony, Nehru Park, Allahabad. Applicant. VE R S U S 1. Union of India through General Manager, North Central Railway, Head Quarters Office, Subedarganj, Allahabad. 2. The General Manager, North Central Railway, Headquarters Office, Subedarganj, Allahabad. 3. The Divisional Railway Manager, North Central Railway, DRM Office, Allahabad. 4. The Divisional Personal Officer, North Central Railway, DRM Office, Allahabad. 5. Shri Bhupendra Kumar Agarwal, Divisional Railway Manager, North Central Railway, DRM Office, Allahabad. 6. Shri Upendra Kumar, Divisional Electric Engineer/General, North Central Railway, DRM Office, Allahabad. ..Respondents Alongwith Original Application Number. 1808 OF 2010. Shiv Kumar Misra, S/o Shri Raja Ram Misra, aged about 46 years, Resident of 679/167 B, Adarsh Nagar, Bhawapur, Allahabad. Applicant. VE R S U S 1. Union of India through General Manager, North Central Railway, Head Quarters Office, Subedarganj, Allahabad. 2. The General Manager, North Central Railway, Headquarters Office, Subedarganj, Allahabad. 3. The Divisional Railway Manager, North Central Railway, DRM Office, Nawab Yusuf Road, Allahabad. 4. The Additional Divisional Railway manager, North Central Railway, D.R.M. Office, Allahabad. 5. The Senior Divisional Electrical Engineer/RSO, North Central Railway, D.R.M Office, Allahabad. 6. The Divisional Personnel Officer, North Central Railway, DRM Office, Allahabad. ..Respondents Advocate for the applicant: Shri S.S. Sharma Shri Ravi Sharma Advocate for the Respondents: Sri S.K. Chaturvedi O R D E R
Delivered by Honble Mr. Sanjeev Kaushik, J.M. Since both the O.As are on identical question of law and the relief sought by the applicants are similar, merely having different dates in entry in service will not upset the ultimate finding to be given by this Tribunal on legal question. Therefore, both the O.As have been heard together and decided by a common order. For ready reference the facts of the O.A No. 1379/2010 are taken.
2. The present Original Application is directed against the order dated 16.08.2010 (Annexure A-1) passed by the respondent No. 3 with further prayer to direct respondent No 2 to revaluate the answer sheet of the applicant and to include the name of the applicant in the provisional panel of Electric Loco Pilot (Goods) dated 08.07.2009 after declaring him pass in the written examination.
3. The facts of the case, in brief, are that the applicant was appointed as substitute Loco Cleaner in pay scale Rs. 750-940 on 07.07.1987 under Loco Foreman , Northern Railway, Tundla in Allahabad Division. His services were regularized on 01.01.1992. Thereafter the applicant was promoted as Electric Assistant Driver in pay scale of Rs. 3050-4590 on 03.02.1996 and was posted under Senior Crew Controller, Northern Railway, Tundla. In November 2005 the applicant was further promoted as Senior Electric Assistant Driver (Goods) in pay scale Rs. 4000-6000 (Revised Scale Rs. 5200-20200 + GP 2400). The next promotion is of Electric Loco Pilot (Goods) in PB 9300-34800 +GP 4200. It is averred that the applicant is one of senior most candidate amongst the eligible candidates and fulfills all the conditions for promotion. Respondent No. 3 issued a Notification dated 23.01.2009 to conduct selection for promotion to the post of Electric Loco Pilot (Goods) in grade Rs. 9300-34800 (GP Rs. 4200/-) to fill up 248 vacant posts out of which 48 posts have been reserved for SC, 72 for ST and 128 for general. The written test was scheduled to be held on different dates. The applicant appeared in the written test on 21.02.2009. The written test constituted of only one paper of 100 marks requiring a candidates to secure 60% marks in the written test. On 08.07.2009 the respondent No. 3 issued a provisional panel of 116 candidates but the name of the applicant was not found place in the said list being unsuccessful in the written examination. The applicant stated to have made an application on 07.09.2009 under R.T.I Act 2005 to the respondents whereby asking certain information. The respondents replied vide their letter dated 18.09.2009 that there is no modal answer sheet of question paper. Thereafter the applicant stated to have preferred a representation dated 28.10.2009 but as the same was not decided , the applicant filed O.A No. 1442/09, which was disposed of vide order dated 26.11.2009 with direction to the respondents to decide the representation of the applicant by passing a reasoned and speaking order. It is thereafter the representation of the applicant was decided on 07.04.2010 (Annexure A-13). Aggrieved against this order, the applicant again approached this Tribunal by way of O.A No. 832/10, which was also decided on 10.06.2010 whereby the respondents were directed to consider and decide the pending representation of the applicant dated 13.04.2010 by a reasoned and speaking order after taking into account Annexure A-8 and A-9 of that O.A.
4. Pursuance to the notice respondents appeared and resisted the claim of the applicant by filing Counter Affidavit. In reply to para 4(1) it is submitted by the respondents that the answer sheet has been examined and marks were allotted by the expert adopting single yard stick and there is no provision for revaluation or re-checking the answer sheets. In reply to para 4.16, 4.17 and 4.18, the respondents have averred that single standard of evaluation of answer sheet has been adopted. The evaluating officer has no access to know the manner of enrollment number of any candidate. It is proper kept unseen and different number are given to the person evaluating the copies. Examiner cannot in any way come to know or identify the answer sheet of any particular individual..
5. We have heard Sr S.S. Sharma, learned counsel for the applicant and Shri S.K. Chaturvedi, learned counsel representing the respondents.
6. Learned counsel for the applicant has vehemently argued that the impugned order suffers from legal infirmities as the same has been passed contrary to the directions given by this Tribunal in its order dated 10.06.2010 whereby it was directed that while deciding the representation of the applicant, the respondents shall consider Annexure A-8 and A-9 of O.A No. 832/10 , but by the impugned order, same order as has been passed on 07.04.2010, has been repeated , therefore, the order is liable to be set aside. He further argued that the applicant is seeking only revaluation of his answer sheet as the applicant has sought answer from the respondents or the authority under RTI Act and, therefore, in accordance with the advise vide letter dated 09.03.2010 (Annexure A-9) papers of the applicant will be re-checked and suitable marks will be given to the applicant. He placed reliance upon decision of Cuttack Bench of this Tribunal in the case of Benudhar Raut Vs. U.O.I & Ors 1996 (1) ATJ 321 and the decision of this Tribunal reported in 1991 (16) ATC 565 Rishi Deo Singh Vs U.O.I & Ors.
7. On the other hand learned counsel for the respondents started from where the applicant stopped. He argued that the impugned order has been passed as per the direction given by this Tribunal and reasons have been given for not revaluating the paper book of the applicant, therefore, it cannot be said that the impugned order is non-speaking or cryptic. He further urged that there is no provision applicable or empowering the respondents to revaluate the answer sheet. He further submitted that the applicant is not seeking re-calculation of his marks but he is seeking revaluation of his answer sheet on the basis of his own assessment, which is not permissible. He urged that except the applicant no other candidate, who appeared in the written examination, has alleged what has been alleged by the applicant in the original application. Learned counsel for the respondents placed reliance on a recent judgment of Honble Supreme Court reported in 2010 (4) AWC 3798 SC Himanchal Pradesh Public Service Commission Vs. Mukesh Thakur and another. He lastly submitted that the O.A be dismissed being devoid of merits.
8. We have considered the rival submissions and record as well as the judgments cited by the respective parties.
9. The question arises for consideration in this O.A is about revaluation or re-examination of answer sheets. The issue of re-evaluation of answer book is no more res integra. This issue was considered at length by Honble Supreme Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education & Anr. Vs. Paritosh Bhupesh Kurmarsheth etc.etc. AIR 1984 SC 1543, wherein Honble Apex Court rejected the contention that in absence of provision for re-evaluation, a direction to this effect can be issued by the Court. Apex Court further held that even the policy decision incorporated in the Rules/Regulations not providing for rechecking/verification/re-evaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision. The Apex Court held as under:
..........It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act... .......The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any draw-backs in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act......... A similar view has been reiterated by Honble Supreme Court in Dr. Muneeb Ul Rehman Haroon & Ors. Vs. Government of Jammu & Kashmir and Ors AIR 1984 SC 1585 and Board of Secondary Education Vs. Pravas Ranjan Panda and Anr (2004) 13 SCC 383.
10. The above view has been approved and relied upon and further re-iterated by the Apex Court in Pramod Kumar Srivastava Vs. Chairman, Bihar Public Service Commission, Patna & Ors, AIR 2004 SC 4116 observing as under:
Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for re-evaluation of his answer-book. There is a provision for scrutiny only wherein the answer-books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totalling of marks of each question and noting them correctly on the first cover page of the answer-book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for re- evaluation of answer-books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his marks
11. A similar view has been reiterated in President, Board of Secondary Education, Orissa & Anr. Vs. D. Suvankar & Anr. (2007) 1 SCC 603; The Secretary, West Bengal Council of Higher Secondary Education Vs. Ayan Das & Ors. AIR 2007 SC 3098; and Sahiti & Ors. Vs. Chancellor, Dr. N.T.R. University of Health Sciences & Ors. (2009) 1 SCC 599. Thus, the law on the subject emerges to the effect that in absence of any provision under the Statute or Statutory Rules/Regulations, the Court should not generally direct revaluation. This view has recently been considered by the Apex Court in the case of Himanchal Pradesh Public Service Commission Vs. Mukesh Thakur and another - 2010 (4) AWC 3798 SC wherein Honble Apex Court has reiterated the earlier view and allowed the appeal filed against the order of Honble High Court of Himanchal Pradeh at Shimla in following terms: -
19. In view of the above, it was not permissible for the High Court to examine the question paper and answer sheets itself, particularly, when the Commission had assessed the inter-se merit of the candidates. It there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for respondent No. 1 only. It is a matter of chance that the High Court was examining the answer sheets relating to law. Had it been other subjects like physics , chemistry and mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court.
20. Therefore, we are of the considered opinion that such a course was not permissible to the High Court.
12. Now applying the above ratio to the facts of the instant original application, admittedly it is not alleged by the applicant that the examiner, who checked the answer sheet of the applicant, is biased against the applicant. The arguments of the applicant that his answer sheet be checked in accordance with the advise given by the Principal, Electric Training Centre, Kanpur cannot be accepted as there is no provision or rules empowering the respondents to revaluate or re-check the answer sheets
13. In view of the above, we find no reason to interfere with the impugned order. Accordingly, the Original Application is dismissed being devoid of merits.
(B. K. SINHA) (SANJEEV KAUSHIK) MEMBER- A MEMBER- J /Anand/ ?? ?? ?? ?? 1 O.A No. 1379 of 2010