Central Administrative Tribunal - Ernakulam
Saidalavi P vs Southern Railway on 28 November, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00594/2022
Monday, this the 28th day of November, 2022
Coram:
Hon'ble Mr. Justice Sunil Thomas, Judicial Member
Hon'ble Mr. K. V. Eapen, Administrative Member
Saidalavi P., aged 34 years, S/o. Alikutty,
Pointsman A, Shoranur Junction, Palghat Division,
Southern Railway, Residing at Pulickalakath House,
Pariyapuram, Pachattiri Post, Tirur, Malappuram. ...Applicant
(By Advocate: Mr. Martin G. Thottan)
versus
1. Union of India represented by
The General Manager, Southern Railway,
Park Town P.O., Chennai - 600 003.
2. The Divisional Railway Manager,
Southern Railway,
Palghat Division,
Palghat - 678 002.
3. The Additional Divisional Railway Manager,
Southern Railway,
Palghat Division, Palghat - 678 002.
4. The Senior Divisional Personnel Officer,
Southern Railway,
Palghat Division,
Palghat - 678 002. ...Respondents
(By Advocate: Mrs. Mini R. Menon, ACGSC)
This application having been heard on 15 th November 2022, the
Tribunal on 28.11.2022 delivered the following :
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ORDER
Per : Hon'ble Mr. K. V. Eapen, Administrative Member The applicant in the OA is a Pointsman in Palghat division of Southern Railway. He has filed this O.A as he is agrieved by non inclusion of his name in final select panel and in the consequential promotion order, which is issued based on the results of the written examination conducted for selection to the post of Goods Guard.
2. A notification had been issued by the Railways for selection to the post of Goods Guard. A copy of the notification dated 11.04.2019 produced at Annexure A1. The said notification had made it clear that the proposed selection was for filling up of 32 vacancies of Goods Guard in the Pay Matrix Level-5 under 60% promotional quota. An examination was then conducted and although 32 vacancies were notified in the list, only 5 persons were included in the selected panel. This was because it appears that only these 5 officials had secured the minimum qualifying marks of 60% in the written examination. In this connection a copy of the letter dated 17.3.2022 indicating the names of those who had qualified in the written examination (5 in number) is produced at Annexure A2 in the O.A.
3. The same 5 selected candidates were then placed in the panel for promotion as Goods Train Manager and directed to attend the official training course for the post, vide Orders at Annexure A3 dated 01.04.2022 commencing on 04.04.2022. The applicant submits that, after issuance of the Annexure A3 Panel List, the marks scored by the candidates who -3- appeared in the selection was published vide Annexure A4 by the respondents. From this list it is to be noted that the applicant, who is at serial number 21 of the said list of candidates, has secured 58.34 marks.
4. The applicant had apparently not been considered for inclusion in the Annexure A2 and Annexure A3 list of selected candidates/Panel as he failed to secure 60 marks in the written examination, i.e., he failed to attain the qualifying marks by less than 2 marks from the cut off. The respondents also published the question paper and answer key in connection with the written examination held on 03.03.2022 vide Annexure A5 along with the mark list of Candidates. The applicant after going through the question and answer key felt that he should have been awarded more than 60 marks in the examination. He, therefore, submitted an RTI application for a copy of his answer book. This was furnished to him and copy of the same has been produced at Annexure A6. After comparing the Annexure A6 answer book with the answer key at Annexure A5, the applicant found that for question numbers 71, 73, 74 and 75, though he had given the right answers, as also confirmed by the answer key to these questions, no marks were actually awarded to him. In the answer book copy at Annexure A6, the said answers have been evaluated as wrong and thus he was not given any marks for them.
5. The contention of the applicant is that if the answers given by him to the 4 questions at 71, 73, 74 and 75 had been evaluated properly, he would have secured more than 63 ½ marks in the written examination. He would -4- have then qualified to be included in Annexure A2 Select list and Annexure A3 Panel. He, accordingly, submitted representation to the 4th respondent on 09.06.2022 as per Annexure A7 giving all these details. He also met the 3rd and 4th respondents in this connection. The respondents have also issued Annexure A8 letter to him that the matter is being considered and has been put up on file to the competent authority. It is also indicated in the said letter that a decision on the same will be communicated in due course.
6. Though the above letter was issued to him on 31.08.2022, even after a period of 2 and a half months no further orders have been passed and the applicant is continuing to work as Pointsman even now. Any further delay in the matter will cause substantial prejudice to him as the promotion and absorption for the post of Goods Guard is preceded by extensive training, which is to be conducted at the Trichy Training Centre. The finalisation of selection for the post of Goods Guard under graduate quota is at the final stage and within a short period the final panel will be published and, further, that the pre-promotional training is being scheduled very shortly. Since this pre promotional training for Goods Guard is not frequently conducted, if the applicant is not able to undergo the ensuing training, which is likely to occur in November, substantial prejudice will be caused to him.
7. In effect, therefore, the case of the applicant is that it is only on account of glaring error by the respondents in evaluating his correct answers at question number 71, 73, 74 and 75 as wrong that his marks were not counted properly. He had got only 58.34 marks as per Annexure A4 list. -5- However, if these 4 answers had been properly evaluated and marks given accordingly, he would have got around 63.5 marks. This would have enabled him to qualify in the panel as it would have been above the cut off marks of 60. It is submitted that since the evaluation of the answer sheet has been wrongly done, there is no justification in not rectifying the mistake once it is brought to the notice of the respondents. Hence he should be awarded the correct marks and consequent orders placing him in the panel for promotion to Goods Guard should be then passed. Further, he reiterates that if this is not done immediately he will not be able to attend the training schedule along with other selected candidates. Thus, he asks for the following reliefs :-
"I) Call for the records leading to issue of Annexure A2, A3 and Annexure A4 and quash the same to the extent it excludes the applicant.
II) Direct the respondents to re-evaluate the Annexure A6 answer book of the applicant pertaining to the question Nos. 71, 73, 74 and 75 and to arrive at the correct total marks scored by the applicant with all consequential benefits.
III) Direct the respondents to include the applicant's name in Annexure A2 on the basis of the directions above.
IV) Award costs of and incidental to this application. V) Grant such other relief, which this Honourable Tribunal may deem fit and proper in the circumstances of the case."
8. The respondents have filed a reply statement wherein they have not denied the statement of the applicant that, even though he had correctly marked answers for question number 71, 73, 74 and 75 as per the answer key, it has been evaluated as wrong. However, they have drawn attention to the Railway Board Letter No. E(NG)I-67 PM-47 dated 05.02.1969, -6- produced at Annexure R1, relating to the Indian Railway Establishment Manual (Vol-I) Rules for Governing the Promotion of Group 'C' Staff (Procedure to be adopted by Selection Board). It is indicated therein as follows:
"219. Procedure to be adopted by Selection Board. (I) After the competent authority has accepted the recommendations of the Selection Board, the names of candidates selected will be notified to the candidates. A panel once approved should normally not be cancelled or amended. If after the formation and announcement of the panel with the approval of the competent authority it is found subsequently 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."
It is submitted by the respondents that the competent authority has decided not to re-evaluate the answer sheet in this case as there is no provision to do so. It is also submitted that the final Panel of the selection conducted to the post of Goods Train Manager (Goods Guard) against Limited Departmental Competitive Examination (LDCE) is yet to be published and the same is under process. The initial training for the post of Goods Train Manager has commenced at Multi-Disciplinary Zonal Training Institute at Tiruchirappalli. However, none of the employees from the Palakkad Division have been sent for the above training course as Panel is yet to be finalised. Most of the statements of the applicant in the O.A are not denied except the fact that the training to be provided to the employees promoted as Goods Train Manager is the initial training course and not the pre- promotional training as stated by him.
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9. In effect, what the above contention of the respondents amounts to is that there is no specific provision for revaluation of an answer book in the Railway Board circulars or rules. However on receipt of the Annexure A7 representation from the applicant; the same was put up to the competent authority for disposal. It is submitted that the competent authority has decided not to re-evaluate the answer book as there is no provision to do so. As such, since consultation at various levels was required in the case, hence, the time taken for disposing the representation was not willfull.
10. We have heard learned counsel for the applicant, Sri Martin G. Thottan, and learned counsel for the respondent Smt. Mini R. Menon, ACGSC. We note that in this regard very similar matters have been earlier heard and disposed of by this Tribunal. Specifically in OA 229/2019, in the matter of Smt Subha Gopinath v General Manager Southern Railway and Ors, a similar matter had been examined, where marks had not been awarded for some of answers in the answer book. In that O.A this Tribunal had observed that the respondents seemed to have shifted responsibility on the officer concerned who evaluated the scripts but had not cared to correct this lacuna. In that O.A too, the respondents had taken the same ground taken in this O.A, i.e., that such revaluation is not allowed under the Railway Manual. This Tribunal had commented on this aspect in paragraph 12 of the O.A 229/2019 in its Order dated 03.02.2021 as follows :-
"This is a surprising position to take as the Railway Manual might not have any provisions against the correction of mistakes done during evaluation and to ensure correct awarding of marks either! It is quite commonsensical that in case the correct number marks are not awarded during evaluation, this omission will need correction. Also, if a -8- mistake is made, it will need to be set right, as it directly affects the future career of the candidate concerned."
11. In addition, in O.A 262/2022 and 264/2022 in a common order dated 26.09.2022 passed by this very Bench relating to the conduct of written examination held for selection of candidates for the post of Junior Engineer (Carriage & Wagon) in the Trivandrum Division, which was cancelled due to "administrative reasons", we had observed, inter alia, as follows in paragraph 11 :-
"11. After this, during the course of oral submissions, the applicant in O.A.No.180/262/2022 filed a rejoinder, wherein, he reiterated that in case the right answers as indicated in paragraph 5 of the reply statement were taken into consideration, ie., if answer key was changed to options C, A, D, D and A to question numbers 13, 20, 31, 56 and 100, he, who had not been given any marks to said questions would get at least 3 more marks plus negative marks given to wrong answers on the basis of incorrect answer key. Further, it was submitted by him that the contention that the Railway Administration had no provision for re-evaluation of the written test in its Rules is highly misleading. The paragraph 219(1) of the IREM Vol.I gives authority to amend the panel. If an authority has the power to cancel, naturally it has also the power to amend and modify the panel, after rectifying the mistakes, if any....."
12. Further in the same Order, after considering the contentions of the applicants, this Bench had noted in paragraph 12 onwards inter alia as follows :-
"......However, in this matter there seems to have been no irregularity or illegality in the conduct of the examination, nor, has there been any whisper relating to the same brought out in the O.As or reply. The issue herein was based on a representation pointing out that the answers given by all the candidates had been wrongly evaluated due to a faulty answer key. According to us, this was a matter which could have been easily corrected by the respondents, without taking a drastic -9- step such as the cancellation of the entire examination and withdrawing the candidates who were half way through their training. This is particularly relevant as it has been mentioned by the candidate in O.A.No.180/262/2022 that the actual re- evaluation based on the correct answer key would result in his marks being enhanced on the basis of the correct answers. We are also guided in this connection by the judgment of the Hon'ble Supreme Court in Union of India & Ors. v. Rajesh P.U. Puthuvalnikathu & Anr. reported in 2003 SCC (L&S) 1048, wherein, the Hon'ble Supreme Court had found that "......applying an unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go bye to contextual considerations throwing to winds the principle of proportionality in going farther than what was strictly and reasonably required to meet the situation. In short, the Competent Authority completely misdirected itself in taking such an extreme and unreasonable decision of canceling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational. For all the reasons stated above, we could not find any infirmity whatsoever in the judgment of the High Court which adopted a practical, pragmatic, rational and realistic solution to the problem."
13. In this connection there have been decisions by Courts/Tribunals that only when there are infirmities of all pervasive nature that cancellation of an entire recruitment process is justified. Drawing from these decisions, we think that the decision of the Selection Committee to cancel the entire examination and the subsequent approval by the DRM appears rather disproportionate to the facts and circumstances of the situation. One of the grounds taken by the Selection Committee is that there is no scope for re-evaluation under provisions of Chapter II in IREM, Vol.I on Rules Governing Promotion of Subordinate Staff and other rules and circulars. It can also be argued, on the other hand, that there is also no direct prohibition or bar on re-evaluation under any of the IREM provisions on Rules Governing Promotion of Subordinate Staff and other rules and circulars. In fact, a plain reading of paragraph 219 (l) of Chapter 2 of IREM, Vol.I shows that, while a panel once approved should normally not be cancelled or amended, if it has been found that there were procedural irregularities or other defects it is considered necessary to cancel or amend such a panel, it can be done after obtaining the approval of the higher authority. The Selection Committee taking the ground that there could be no -10- re-evaluation done at that stage decided to cancel the panel whereas it could have amended it after re-evaluation with the required approval. The number of candidates who attended the examination were only 47, of which, only 13 qualified. It would have been quite easy enough for the Selection Committee to have taken into consideration the right answers to the questions as indicated earlier, and to re-work the marks that had been secured by the candidates. That to us, would have been a much fairer and rational approach, rather than going for the nuclear option of a full cancellation, that too for the second time. It appears to be quite unfair for the candidates, particularly, the candidate in O.A.No.180/262/2022 that this procedure was adopted. We also comforted by the aforementioned judgement of the Hon'ble Supreme Court in Rajesh P.U Puthuvalnikathu (supra) that there should not be an unilateral rigid and arbitrary standard applied to cancel the selection when there has been no pervasive infirmity or that there should be no consideration of contextual consideration. It is the principle of proportionality in such cases, as has been pointed out by the Hon'ble Supreme Court, which should apply and steps taken to correct the situation.
14. Drawing from the above considerations, we direct the respondents to again re-evaluate the answers of the candidates who had appeared on the basis of the agreed correct answer key and to draw up a fresh selection list. The earlier panel can, therefore, be either amended or cancelled as the case may require after this exercise is done. In case the same two candidates who are the applicants in O.A.No.180/262/2022 and O.A.No.180/264/2022 qualify after the above re-evaluation has been conducted, then obviously they may be allowed to continue and complete their training for which they have been protected by our interim orders so far. The re-evaluation and drawing of a fresh panel should be completed within a period of 45 days from the date of issue of this order. There should obviously be no disturbance to the two applicants till the above action has been completed and, as stated, in case they qualify even after the said re-evaluation is completed, they may continue the training till it is completed."
13. We are of the opinion that the issues in this O.A would lead us in the direction of arriving at very similar conclusions as in our common order in the O.A Nos. 262/2022 and 264/2022. Here, there is only one applicant who has appeared submitting that his marks have been wrongly awarded. The -11- respondents have not denied that this is not the case. Here too it, therefore, should be quite easy for the selection committee to take into consideration the right answers to the questions and to rework the marks secured by the applicant. Further, after the said re-evaluation, in case he qualifies he should be included in the panel for promotion and sent for training. As we had found in our earlier orders, supra, this would have been far more fairer and more rational approach than simply taking a blunt decision, that too without assigning reasons not to reevaluate the answer book. The ostensible ground is that there is no provision to do so. As we have noted earlier even if there is no provision to do a revaluation, there is neither any exclusive bar on conducting the said revaluation. In such cases where the promotion of an employee is involved, it behoves the authority to take a more fair and rational approach, rather than an unfeeling decision not to accept his prayer for revaluation on the ground of no such provisions.
14. We are also bolstered in the above understanding of the competency of this Tribunal to direct the competent authority to take the responsibility to proceed in a rational manner in order to deliver justice for the employee, by the observation of the Hon'ble High Court of Kerala in Cheru Ouseph v Kunjipathumma [AIR 1981 KERALA 266], wherein, the Hon'ble High Court had observed at paragraph 13 as follows:
"13. I would therefore say, as indicated by the Supreme Court in Dhaini Devi's case (AIR 1970 SC 759), that in respect of procedural matters, all powers which are not specifically denied by the statute or the statutory rules, should be vouchsafed to a tribunal so that it may effectively exercise its judicial function. Corpus Juris Secundum (Article 157, "Public Administrative Bodies and Procedure") contains the following passage :--12-
"Apart from and without references to statutory authority therefore and subject to some restrictions and limitations, it has been held that an administrative agency may correct or amend its orders. Thus it has been held, except as qualified by statute, administrative tribunals possess the inherent power to modify their judicial acts to serve the ends of essential justice and the policy of the law, and that the general power of an administrative body over its decisions includes the right to modify a decision so as to reach a different result on the same record."
This almost amounts to recognition of a power of review, but Article 114 contains the following also:-
"An administrative body may generally conduct its proceedings in such manner as will best conduce to the proper dispatch of its business and to the ends of justice. It is generally permitted a wide discretion and latitude in procedural details and ordinarily may establish its own rules and regulations as to practice and procedure, although it must conform to standards of fairness and reasonableness."
15. Drawing from the above, we would urge the respondents, that in such situations, they should invariably take steps to re-evaluate the answers especially where it is glaringly obvious that a mistake has been committed. Otherwise, in effect, they are perpetuating a gross irregularity even further. There is no need to avoid taking decisions which have the effect of pushing affected employees to come to Courts/Tribunal for securing such orders. In fact, we suggest that there should be clear instructions issued by the concerned authorities, even if it has to come by way of a Circular of clarification by the Railway Board on Selection Committee procedures which will authorise the Committees to take steps to correct evaluation mistakes which have been made in the process of examination with the power to award the correct marks to those who appear in the LDCEs for promotion. We direct the respondents in this O.A to send this observation to their higher authorities in the Railway Board/Zonal Headquarters for -13- consideration further for issuing necessary orders in this direction.
16. We are accordingly allowing the OA in the light of the above to the extent as indicated as follows:
The respondents should reevaluate the answer book of the aplicant pertaining to the question Nos. 71, 73, 74 and 75. If it is found that the evaluation was not proper they may award the correct marks to the applicant. If these marks that are secured by the applicant as a result of the said re-evaluation are above the prescribed cut off marks, than the notification/orders/panel, etc at Annexure A2, A3 and Annexure A4 may be accordingly amended after incorporating the marks and reflecting his eligibility for inclusion in the panel, provided he has met all other necessary criteria which has also been prescribed. He may in addition be deputed for the required training if he qualifies on this basis, even in case, the said training has already begun at the Zonal Training Institute. Further, his promotion and seniority if he so qualifies should also be fixed along with the others who had qualified for inclusion in the Panel so that he is not forced to come again to this Tribunal for the same.
17. The O.A is allowed to the extent as indicated above. No order as to costs.
(Dated this the 28th day of November 2022)
K.V.EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
bp
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List of Annexures
Annexure A-1 - A true copy of the notification No. J/P.608/VIII/Goods
Guards/PRQ/Vol.III dated 11.04.2019
Annexure A-2 - Letter bearing No.J/P.608/VIII/Goods Guards/Vol.III dated
17.03.2022 issued by the 4th respondent.
Annexure A-3 - Letter bearing No.J/P.608/VIII/Goods Guards/Vol.III dated
01.04.2022 issued by the 4th respondent.
Annexure A-4 - Letter bearing No. J/P.608/VIII/Goods Goards/Vol.VIII dated
24.05.2022 issued by the 4th respondent.
Annexure A-5 - A true copy of letter bearing No. J/P.608/VIII/Goods
Guards/Vol.VIII dated 24.05.2022.
Annexure A-6 - True copy of the valued answer book of the applicant furnished by
the respondents.
Annexure A-7 - True copy of the representation submitted by the applicant dated
09.06.2022.
Annexure A-8 - True copy of the letter bearing No. J/P.608/VIII/Goods
Gd./PB/CON dated 31.08.2022 issued on behalf of the 4th respondent. Annexure R1- Letter No. E(NG)1-67PM 1-47 dated 05.02.1969.
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