Karnataka High Court
P. Shiva vs The Union Of India (Uoi), Rep. By The ... on 1 September, 2003
Equivalent citations: ILR2003KAR3806
Bench: R.V. Raveendran, S. Abdul Nazeer
ORDER
Raveendran, J
1. The petitioner is a graduate. He joined the Railways as temporary waterman on 25-6-1985. His temporary status was confirmed during 1989. He was empanelled as Box Boy on 14-4-1991.
2. Rule 127 of the Indian Railway Establishment Manual ['IREManual' for short], provides that vacancies in the category of Ticket Collector [a group-C post] will have to be filled, two-thirds by direct recruitment and one-third by promotion by process of selection from the eligible group-D category staff. As per circular instructions, selection for promotion is on the basis of merit, which is assessed on the basis of written examination [50 marks], interview [25 marks] and service record [25 marks]. Only those who obtain 50% marks in the written test are eligible for interview.
3. In February 2001, fourth respondent invited application fromin-service candidates for appointment to the post of Ticket Collector, under the one-third promotion quota. It is stated that petitioner was one among the 157 applicants. Out of them, 92 candidates appeared for the written test, held on 3-3-2001. Five candidates (including the petitioner) passed in the written test in general merit category by securing 50% and above. Two employees belonging to scheduled caste passed on the basis of relaxed standards [40% as against the minimum of 50% in written examination]. Nine employees belonging to SC/ST who had failed in the written Examination, but had secured above 20% were also considered under the 'best among the failed candidates' scheme. Vivo voce was held on 2-4-2001. On the basis of the marks obtained in the written examination, interview and considering the record of service, four candidates under general merit category, one candidate under SC category [relaxed standard] were provisionally selected and empanelled for the post of Ticket Collectors, vide Order dated 10-4-2001. Three failed candidates were also recommended for ad-hoc promotion under the concept of 'best among failed candidates'. The petitioners was one of the candidates empanelled for promotion, under the General Merit category.
4. By letter dated 7-5-2001, the fourth respondent directed theconcerned Department Heads to relieve the persons selected and placed on panel, for promotion from group-D to the group-C post of Ticket Collectors, to enable them to report for training. The petitioner was accordingly relieved, sent for training and successfully completed the training by securing 74 marks vide order dated 18-6-2001. Thereafter, by office order dated 27/28-6-2001, petitioner [alongwith three others] was promoted and absorbed as Ticket Collector in the pay scale of Rs 3050-4590 with effect from 1-4-2001. The petitioner has been accordingly serving as Ticket Collector.
5. In the meanwhile, one Shekar, belonging to Samata Party gave a complaint on 18-4-2001 to the Minister for Railways, alleging irregularities in the selection of Ticket Collectors. The complainant alleged that five candidates were selected for the post of Ticket Collector on the influence of Sri D. Anup Dayanand; DSO/SBC and Sri R. Aaivu [DPO/SBC], by awarding higher marks for monetary benefits; and that though nine employees belonging to Samata Party, had volunteered for selection, and five had passed in the written examination, none of them were called for vivo voce. The ministry referred the matter to the Vigilance Department for investigation.
6. After investigation, the Vigilance Department submitted areport stating that the allegations were baseless and not established. The report disclosed that the ADRM, SBC had nominated a Selection Committee with Sri N. Ramesh, DCM/SBC [to set question papers for the examination], Dr. Anup Dayanand Sadhu DSO/SBC, [to evaluate the answer papers] and V.S. Sathyanarayana Patrudu, APO/M/SBC [member]; that the examinations and interviews were held as per Rules; and that there was no evidence to show any favouritism, or intention or attempt on the part of the Evaluator to award high marks to any candidate. As a part of investigation, all the answer scripts of candidates were re-valued. On such revaluation, it was found that in regard to the answer script of the petitioner, two marks had been wrongly awarded to question No. 7.11, which was an objective type question. It was found that the petitioner had answered the question as 'Rs. 328' whereas the correct an answer as per the key was Rs. 322. The petitioner had secured 51 marks. If the two marks for the wrong answer were reduced, the marks secured by the petitioner in the written test became 49.
7. On the basis of said report, a show cause notice dated 21-9-2001 was issued by the fourth respondent to the petitioner stating that it was found that the petitioner had secured only 49 marks and not 51 marks; that as he had not secured the minimum of 50 marks, he was not eligible for being called for vivo voce ; and that he had been wrongly called for vivo voce and placed on the panel of selection candidates. The petitioner was called upon to show cause as to why he should not be reverted to the post of Box Boy. After considering the objections filed by the petitioner, the fourth respondent by letter dated 15-10-2001 informed the petitioner that in view of the rectification of his marks in the written examination as 49 instead of 51, it was proposed to delete the name of petitioner from the panel. By subsequent letter dated 30-1-2002, fourth respondent informed the petitioner that his provisional empanelment for the post of Ticket Collector as per letter dated 10-4-2001 was deleted and that as a consequence, the panel of selected employees for promotion to Ticket Collectors was modified by removing petitioner's name and including the name of fifth respondent.
8. Feeling aggrieved, petitioner filed OA No. 151 of 2002 beforethe Central Administrative Tribunal, Bangalore Bench, for quashing the letter dated 30-1-2002 issued by the fourth respondent and seeking a direction to respondents to continue him as Ticket Collector by holding that his promotion to the said post is in accordance with law and for consequential benefits. The Tribunal granted an interim stay in regard to reversion. But, by final order dated 7-4-2003, the Tribunal dismissed the petitioner's Application, as it found that the petitioner had secured only 49 marks in the written examination and therefore was ineligible for being called for vivo voce or empanelment. The petitioner has filed this petition challenging the order passed by the Tribunal and seeking grant the reliefs sought in his Application before the Tribunal.
9. Rule 219 (j) and (k) of IRE Manual requires the names ofthe selected candidates to be arranged in the order of seniority and put up to the competent authority for approval. Sub-rule (1) provides that when the competent authority accepts the selection of the Selection Board, the names of the candidates selected shall be notified to the candidates and panel once so approved, should not normally be cancelled or amended.
10. In this case, after approval of the empanelment of thepetitioner for the post of Ticket Collector, the petitioner was notified about such empanelment and was sent for training. After petitioner successfully completed the training course securing 74 marks, the petitioner was promoted and absorbed as Ticket Collector by order dated 27/28-06-2001.
11. But, the Order dated 30.1.2002 attempts to give an erroneousimpression that the petitioner was only provisionally selected to the post of Ticket Collector and that when it was found that the petitioner had not secured the minimum 50 marks in the written examination, his name was deleted from the panel of selected candidate. It ignores and overlooks the fact that in pursuance of empanelment on 10-4-2001, petitioner was sent for training and was subsequently promoted and appointed as a Ticket Collector by order dated 27/ 28-6-1991. When a candidate who is empanelled (that is, put on the selection list) is promoted or appointed on regular basis, his name ceases to be in the panel. Deletion of the name of a candidate from a panel is possible only if his name continued to remain in the panel. There is no question of deletion of a name which no longer forms part of the panel. In this case, on being promoted, petitioner's name having stood automatically removed from the panel. Therefore the order dated 30-1-2002 purporting to delete the name of petitioner from the panel on the ground that he had not passed the examination, is an action which is on the face of it misconceived and untenable. We have referred to this aspect because what is deleted is only the empanelment, but there is no consequential cancellation of the promotion of the petitioner by letter dated 27/28-6-2002. Be that as it may. We will ignore the said technical lacuna and consider whether there was any justification for such deletion or power to make such deletion.
12. The petitioner was not guilty of any fraud, misrepresentation, malpractice or wrongful act. The petitioner had on two earlier occasions was empanelled after written test and vivo voce, but was not selected for want of sufficient vacancies. He again passed the written test held on 3.3.2001. The selection process, as per the relevant Rules/Guidelines do not contemplate or provide for revaluation of answer scripts either suo moto or at the request of the candidates. The Vigilance Department however got all the answer scripts revalued in view of a complaint alleging irregularities in evaluation and that no Samata Party worker had been promoted. The Department found on investigation that there was no irregularity. By then the promotions had been effected in pursuance of the empanelment, after due training. Therefore, the matter should have been closed as warranting no further action.
13. But, on the ground that on such revaluation, it was foundthat there was an error in regard to award of two marks in regard to the answer script of the petitioner, the petitioner was issued a show cause notice, as if the matter was still at the stage of provisional empanelment, ignoring the fact that by then the petitioner had completed the training and had been promoted and appointed as Ticket Collector. The question therefore is whether the discovery of an error in awarding two marks in the written test (thereby reducing petitioner's marks to 49, which is below the minimum of 50 marks required for being called for interview, subsequent to the promotion, can result in cancellation of promotion.
14. If the error in award of marks had been found when thepetitioner was still at the empanelment stage and had not been regularly promoted as Ticket Collector, it is possible that, the panel could have been modified by removing his name from the panel by taking action as required by Rule 219(1), which provides:
"If after the formation and announcement of the panel with the approval of the competent authority, it is found that there were procedural irregularities or other defects and it is considered necessary to cancel or amend such a panel, this should be done after obtaining the approval of the authority next higher than the one that approved the panel."
But, where the candidate who succeeds in an examination and empanelled for selection, has passed the empanelment stage and has already been promoted, appointed and assumed charge of the higher post, the position is completely different. Cancellation of promotion on the ground that a candidate has not in fact secured the required marks for passing or acquiring eligibility for vivo voce, is permissible only if there was any fraud or mal-practice or irregularities in the conduct of the examination or evaluation or if the candidate himself is guilty of any malpractice, misrepresentation or suppression of facts or wrongful act. In the absence of such reasons, a mere change in marks, as a result of a revaluation which is not part of the regular Selection process, cannot be a ground for canceling the promotion.
15. It is well-known that evaluation of answer script by differentevaluators will show marginally different results as the evaluation depends on the perceptions and mindset of the Evaluators. That is why, even where revaluation is permitted, changes within permissible limits, say variations upto 5% are ignored. In the absence of any malpractice or blameworthy conduct on the part of the candidate,or any fraud or irregularity either in the conduct of the examination or in the evaluation or in the declaration of results, and in the absence of any provision for review/revaluation, as a part process of selection/promotion, the written examination results which has been acted upon, resulting in promotion, cannot and will not to varied on the ground that an error had crept in . This is because of doctrine of finality and estoppel.
16. The principles relating to promotions based on examinationscan, therefore, be summarised thus:
i) The examination result of a candidate, published and given effect cannot be altered: a) where the candidate is not guilty of mal-practice or misrepresentation or any blameworthy conduct; or b) where there is no fraud or irregularity in the conduct of examinations or evaluation or tabulation; or c) where the Rules do not provide for change of results on the basis of review or revaluation of the answer scripts.
ii) Where the Rules governing recruitment provide for empanelment or preparation of select list based on the result in an examination, and a candidate empanelled or placed in the selection list on being declared as successful in the examination, is promoted on the basis of such selection, such promotion cannot be cancelled or withdrawn on the ground that on a revaluation which is not a part of the process of selection under the Rules, he was found to have failed in the examination. Any revaluation or review of the examination results, necessarily, should be prior to the promotion or appointment based on the selection list.
iii) But, where there is fraud, or irregularities in the conduct of examination/valuation/ tabulation or malpractice or blameworthy conduct on the part of the candidate himself, the result of an examination can be altered and all consequences can be set at naught, as discovery of fraud overrides doctrine of estoppel or rule of finality or principle of equity.
17. We are, therefore, of the view that once the petitioner wasselected and empanelled on the basis of the marks secured in the examination, and promoted as Ticket Collector in pursuance of such selection, his promotion cannot be cancelled merely on the ground of a error in evaluation, in the absence of any circumstances mentioned in para 15(iii) above. To hold otherwise, would mean that there can be no finality to any process of selection, thereby leading to uncertainty and chaos.
18. The Tribunal has not considered the matter with reference to the aforesaid well settled principles, resulting in a grave injustice. Its assumption that when the Department found an error in valuation by two marks, it was entitled to automatically cancel the empanelment and consequential appointment, is without basis. As the Order of promotion and absorption, dated 27/28.6.2001 has not been cancelled, the petitioner is to be treated as having continued as a Ticket Collector.
19. We, therefore, allow this petition as follows:
(i) The Order dated 7.4.2003 of the Central AdministrativeTribunal in O.A. No. 151/2002 is set aside.
(ii) The Order dated 30.1.2002 of the fourth respondent inso far as it deletes the name of the petitioner from the panel of selected candidates is set aside.
(iii) It is declared that the promotion and absorption of thepetitioner as Ticket Collector under order dated 27/ 28.6.2001 stands unaffected and petitioner will be entitled to all consequential benefits.
(iv) The respondents are granted three months time tocomply with these directions.
(v) Parties to bear respective costs.