Central Administrative Tribunal - Allahabad
Ratnakar Verma vs General Manager N C Rly on 30 October, 2018
(OPEN COURT)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
This the 30th day of October, 2018.
HON'BLE MR. GOKUL CHANDRA PATI, MEMBER (A).
HON'BLE MR. RAKESH SAGAR JAIN, MEMBER (J).
Original Application Number. 330/01110/2016.
Ratnakar Verma, S/o Sri Suresh Verma, R/o Vill. Garaha, Post -
Ratanpura, District - Mau.
...............Applicant.
VE R S U S
1. Union of India through General Manager, North Central Railway,
Allahabad .
2. Chairman, Rail Bharti Prakoshth, Balmiki Chauraha, Nawab Yusuf
Road, North Central Railway, Allahabad.
3. Deputy Chief Personnel Officer / Rail Recruitment Cell/ Public
Information Officer, Nawab Yusuf Road, Near Balmiki Chauraha,
Allahabad.
4. Assistant Chief Personnel Officer (Recruitment), Nawab Yusuf
Road, Near Balmiki Chauraha, Allahabad.
.................Respondents
Advocate for the applicant : Shri S. Narain
Advocate for the Respondent : Shri R.K. Pandey (absent)
ORDER
(Delivered by Hon'ble Mr. Gokul Chandra Pati, A.M) The applicant has filed this OA with the prayer for the following main reliefs:-
"(a) Issue an order or direction in the nature of certiorari quashing the impugned order dated 14/07/2016 passed by respondent No. 3 / Deputy Chief Personnel Officer / Rail Recruitment Cell/ Public Information Officer, Nawab Yusuf Road, Near Balmiki Chauraha, Allahabad (Annexure No. A-1 in Compilation No. I) by which the candidature of the applicant has been cancelled.
(b) Issue an order or direction in the nature of mandamus directing the respondents to select the applicant on the post of Helper Electric TRT/TRM/TL Vidyut (Group -D) as OBC candidate in office of respondent as given him status as selected candidates of the same selection may be hold."
2. The facts as per the OA in brief are that the applicant applied for the post of Helper Electric as an OBC candidate in pursuance to the 2 advertisement dated 11.8.2012 (Annexure A-2). The applicant appeared in the written examination and successfully qualified the test after which he was called for physical test on 6.3.2014. The final result for the post was declared, but the applicant was not included in the final list. On 8.10.2015, an application under the Right to Information Act, 2005 was made for details regarding the cut off marks for OBC candidates, the marks secured by the applicant and reason for non-selection of the applicant. Thereafter, the respondents issued a letter dated 14.7.2016 (Annexure A-1) informing the applicant that he had secured total mark of 73.41 as against the cut off mark of 69.73 for the OBC candidates. It was further informed that the candidature of the applicant has been cancelled since he had used whitener/eraser in his OMR answer sheet for the question number 77.
3. In this OA, the respondents failed to file the Counter Reply in spite of the opportunity granted to the respondents to file Counter vide order dated 30.8.2016, 16.12.2016, 23.8.2018 over and above the opportunity granted for filing the Counter on different dated listed before the Registrar, the respondents failed to file the Counter Reply. Hence, the OA was listed for orders on 25.10.2018. On 25.10.2018, no one appeared on behalf of the respondents and the matter was listed for 30.10.2018 for arguments and it was observed that counsel for the respondents is not present then the case shall be proceeded under the rules. On 30.10.2018, when the respondents ' counsel failed to appear in spite of the observations vide order dated 25.10.2018, we proceeded under the rule 16 of the CAT (Procedure) Rules, 1987 to hear the applicant's counsel in absence of the respondents' counsel.
4. Shri Shyamal Narain, learned counsel for the applicant submitted that the cancellation of the candidature of the applicant was known to the applicant only after he received the letter dated 14.7.2016 (Annexure A-1) in reply to the query under the Right to Information Act. 2005. It was submitted that the only reason for cancellation of the applicant's candidature as informed to the applicant vide letter dated 14.7.2016, is that the applicant had used whitener/eraser for one question i.e. question no. 77. He also submitted that the applicant would have been selected for the post since he had secured total marks higher than the 3 cut off mark of 69.73 as informed by the respondents in reply to the RTI Act, 2005.
5. Learned counsel for the applicant cited the following judgments during his arguments:-
i. Judgment dated 19.01.2016 passed by Hon'ble Supreme Court in Civil Appeal No(s). 587-588 of 2016 - Hanuman Dutt Shukla and Ors. Vs. State of U.P. and Ors. ii. Judgment dated 11.07.2016 passed by Hon'ble High Court, Allahabad in Writ-A No. 23914/2016 - Vijeta Singh Vs. State of U.P and Ors.
Our attention was drawn by the applicant's counsel to the following observations made in the judgment of Hon'ble Apex Court in the case of Hanuman Dutt Shukla (supra):-
" It is submitted by Mr. P.P. Rao, learned senior counsel and other learned senior counsel/learned counsel appearing for the parties that as per the Recruitment Rules framed by the State Government to appoint the eligible candidates to the posts, referred to supra, there is no prohibition to disentitle a candidate from evaluating the answer sheets, who used whitener or blade in the relevant blocks in the OMR sheet (answer sheet). The said advisory note given by the Selection Board cannot be treated as a Rule to declare such candidates who have used whitener or blade in the relevant blocks in the OMR / answer sheet as ineligible for evaluating their answer sheets. This statement is in conformity with the Recruitment Rules and it would further support the stand taken by the learned Advocate General, representing the respondent - State of U.P. in making submission of the basis of written suggestions. "
6. It is noticed that the judgment of Hon'ble Supreme Court in the case of Hanuman Dutt Shukla (supra) was followed by Hon'ble Allahabad High Court in the case of Vijeta Singh (supra) and it was held as under:-
" Learned counsel for the petitioner states that the petitioner has appeared in the selection of U.P. Sub Inspector (Civil Police) and Platoon Commander (PAC) Joint Examination-2011 for the post of Sub Inspector but his candidature was rejected on the ground of use of whitener.
It is submitted that even otherwise the petitioner had already qualified on the basis of remaining question if he had used whitener in any one question.
He further submits that this matter was examined by the Supreme Court in Civil Appeal Nos.587-588 of 2016, Hanuman Dutt Shukla and others vs. State of U.P. and others wherein the Supreme Court has held that State will appoint only those 4 candidates who are in the fresh Notional Result to be prepared by the Board, who could not be selected due to use of whitener/blade.
Learned counsel for the petitioner further submits that the petitioner has obtained higher marks i.e. 278.333 and he is otherwise selected candidate, therefore, his matter should also be considered by the State Government.
No useful purpose would be served in keeping the writ petition pending.
This writ petition is therefore disposed of with a direction to the respondent no.2, Chairman/Additional Secretary, U.P. Police Recruitment & Promotion Board, U.P. Lucknow to examine the claim of the petitioner in the light of the observations made above and the judgment of the Supreme Court passed in Civil Appeal Nos.587-588 of 2016, Hanuman Dutt Shukla and others vs. State of U.P. and others within a period of two months from the date a certified copy of this order is received in his office.
It is made clear that the Court has not adjudicated the claim of the petitioner on merits."
7. As per the judgment of Hon'ble Supreme Court in the cases of Hanuman Dutt Shukla (supra), if the rules/recruitment rules applicable for the examination do not specifically provide for rejection of the answer sheet for valuation for use of whitener, then the said answer sheet cannot be done rejected. Ratio of this judgment has been applied by Hon'ble Allahabad High Court in the case of Vijeta Singh (supra). It is not clear from the letter dated 14.7.2016 of the respondents if the rules applicable for the examination in question had a provision for cancellation of the candidature of the applicant for use of whitener/eraser in the answer of one question on the OMR sheet.
8. In view of the above, it is felt that no useful purpose will be served to keep the OA pending. Hence the OA is disposed of with a direction to the respondent no. 2 to reconsider the case of the applicant in the light of the judgment of Hon'ble Supreme Court in the case of Hanuman Dutt Shukla (supra) for use of whitener in the OMR/answer sheet as discussed above and pass a speaking and reasoned order on this issue as per the rules applicable, under intimation to the applicant within a period of two months from the date of receipt of a certified copy of this order. There will be no order as to costs.
MEMBER- J. MEMBER- A. Anand...