Gauhati High Court
Union Of India & 3 Ors vs Abdul Hakim on 28 January, 2016
Bench: T. Vaiphei, Rumi Kumari Phukan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT PETITION (CIVIL) NO. 2392/2015
1. Union of India
Represented by the General Manager,
N.F. Railway, Maligaon,
Guwahati - 11.
2. The General Manager (P),
N.F. Railway, Maligaon,
Guwahati - 11.
3. The Chief Vigilance Officer,
N.F. Railway, Maligaon,
Guwahati - 11.
4. The Chief Mechanical Engineer,
N.F. Railway, Maligaon,
Guwahati - 11.
.....PETITIONERS
- Versus -
Abdul Hakim,
Senior Lecturer,
Supervisor Training Center,
N.F. Railway, New Bongaigaon,
Assam.
.......RESPONDENT
BEFORE HON'BLE MR. JUSTICE T. VAIPHEI, THE CHIEF JUSTICE (ACTING) HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN For the Petitioners : Mr. H.K. Das, Advocate Ms. P. Dutta, Advocate.
For the Respondent : Mr. S. Dutta, Advocate
Mr. M. Chanda, Advocate.
Date of Hearing : 19.01.2016
Date of Judgment & Order : 28.01.2016
W.P.(C) No. 2392/2015
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JUDGMENT AND ORDER (CAV)
[R um i K um ari Phuk an, Judge ]
We have heard Mr. H.K. Das, learned Standing Counsel, N.F. Railway appearing on behalf of the Petitioners. Also heard Mr. S. Dutta, learned counsel appearing for the sole respondent.
2. The Respondent herein is working as a Senior Lecturer in the Supervisor Training Center, N.F. Railway, New Bongaigaon. The Railway authorities issued notification dated 28.01.2013 for selection to the post of AME/AWM (Group - B) against 30% Limited Departmental Competitive Examination for promotion from Group - C to Group - B posts. Pursuant to the aforesaid notification, the respondent herein appeared in the written test held on 03.08.2013 and after qualifying in the written test, he was called for viva-voce from 28.09.2013. The qualifying mark for the written examination is 90 and in record of service and viva-voce taken together is 30 marks. The candidate had to secure at least 15 marks in record of service. There is no qualifying mark in the viva-voce. The respondent had participated in the selection process and he secured 205 marks in the written examination and qualified for the next stage, i.e. record of service and viva-voce. However, he failed to secure 30 marks out of 50 marks in viva-voce and record of service taken together, which lead to his non-empanelment.
3. The respondent challenged the select list on the ground that he has secured 2nd highest marks in the written examination as well as in total marks and has been deprived from selection for an oblique intention on the part of the Railway authorities, which has vitiated the entire selection process.
4. The stand of the respondent that he did very well in viva-voce and in his APARs for the last five years, he secured one 'Outstanding' and four 'Very Good', and as such the ground assigned in the impugned select list dated 04.10.2013 that he does not secure 30 marks out of 50 marks is not maintainable. The Selection Committee with a malafide intention to deprive the respondent for promotion to AME (Group - B) has manipulated the result of the respondent and has shown him as 'failed'. Reference has been made to the Railway Board instruction No. W.P.(C) No. 2392/2015
2|Page E(GP)/2008/2/2007 dated 24.03.2009 which has laid down the pattern of awarding marks in Group - B selection which reveals that the Selection Committee will make assessment on the basis of the APARs of five years and marks should be given as follows:
Outstanding - 5 marks
Very Good - 4 marks
Good - 3 marks
Good/Not Fit - 2.5 marks
Average - 2 marks
Below Average - 1 mark
5. According to the respondent, his last five years ACR/APARs has one 'Outstanding' and four 'Very Good', the pattern of awarding marks would be as follows:
One Outstanding = 5 marks
Four Very Good = 16 marks
Total = 21 marks.
But the Selection Committee with a malafide intention has given the respondent 9 marks in viva-voce and 20 marks in record of service without considering the whole five years APARs with a view to deprive him from selection to Group - B post and given undue benefit to the other incumbents.
6. On the aforesaid facts, the respondent approached the learned Central Administrative Tribunal, Guwahati Bench, Guwahati by way of O.A. No. 315/2013 with a prayer to review the viva-voce test and to direct the respondent to select/appoint the respondent to the aforesaid post. Controverting the case of the respondent (applicant in the said O.A. No. 315/2013), the official respondents (petitioners in the present petition) filed their written statement denying the allegations and has submitted that the qualifying marks in the written test is 90 marks and record of service plus viva-voce are 30 marks. A candidate has to secure at least 15 marks in record of service. There is no qualifying mark in viva-voce. Therefore, the marks allotted in the viva-voce will be as per the assessment and wisdom of the Selection W.P.(C) No. 2392/2015
3|Page Committee. The respondent got no locus-standi to challenge the selection process after participating in the selection process.
7. As per the mandate of Rules, a candidate has to secure qualifying 30 marks in record of service plus viva-voce for empanelment. They have specifically denied that the applicant (respondent herein) had secured one 'Outstanding' and four 'Very Good' in the APARs for the last five years. Therefore, non-empanelment of the applicant (respondent herein) has been strictly within the four corners of Rules. Referring to the marks obtained by the selected four candidates, as well as the respondent herein, it has been brought on record that in record of service and viva-voce, the respondent secured 29 marks, i.e. less than one mark, for which, the respondent was not empanelled though he secured total 234 marks, which is more than other successful candidates. The marks obtained by the applicant (respondent herein) in record of service shown as below:
Outstanding - 1x5 = 5 marks
Very Good - 3x4 = 12 marks
Good - 1x3 = 3 marks
Total = 20 marks
8. In the aforesaid O.A. No. 315/2013, the other successful candidates were made as private respondents who had also submitted their response controverting the case of the respondent on the same footing that as the respondent has failed to secure qualifying cut out mark 30 in record of service plus viva-voce for empanelment, the department has not empanelled the respondent as successful candidate.
9. Before the Tribunal by filing a rejoinder, the applicant (respondent herein) appended an RTI reply supplied by the N.F.Railway which reveals that the grading of respondent for the period with effect from 01.04.2008 to 31.01.2009 is 'Very Good' but the said grading was not considered by the Selection Committee. On the basis of which, the respondent submitted that the Selection Committee with a malafide intention in violation of the Rules has assessed the ACRs of the applicant for the period of four years two months instead of ACRs of five years. As a result of which, he W.P.(C) No. 2392/2015
4|Page has obtained 20 marks instead of 21 marks in record of service and fall short of one mark when qualifying mark 30 in record of service and viva-voce. As per aforesaid RTI reply, the assessement of the ACR/APARs of the respondent would be as follows:
One Outstanding - 5x1 = 5 marks
Four Very Good - 4x4 = 16 marks
Total = 21 marks.
10. On appreciation of the controversies and matters on record, the learned Tribunal has arrived into a findings that Selection Committee while considering APARs for five years, it has taken into consideration of ACRs of two months for the period 2008-2009 (01.02.2009 to 31.03.2009) of the respondent (i.e. 'Good') has not taken into consideration of another ten months (01.04.2008 to 31.01.2009) (i.e. 'Very Good'. Finally following order has been passed:
"We noted that, in the record of service and viva voce combined where the applicant got 29 marks wrongly due to inadvertent mistake which ought to have been 29+1 total marks 30 out of 50 which is qualifying marks as per provisions of Railway Rules. Accordingly, we direct the respondent authority to add one mark in record of service and be counted and read as 21 instead of 20 where total marks to be counted as 30. The authority shall consider the case of the applicant by placing him in the panel in pursuance of the advertisement dated 28.01.2013 in accordance with law and appointment to the post of AME/AWM (Group - B) shall be made. It is made clear that the process for placing the applicant in proper place by calculating the marks actually obtained by the applicant i.e. 30 out of 50 as well as 205 out of 350 combined two papers i.e. total marks obtained 235 and the appointment shall be made not later than two months from the date of receipt of a copy of this order."
11. The above order has been impugned in the present proceeding on the ground that the learned Tribunal has erred in law in directing to grant one mark to the sole respondent assuming power of the DPC. It has been contended that in the APAR referred by the respondent for the period 01.04.2008 to 31.01.2009 (which was not placed before the Selection Committee) is required to be considered by the DPC only under the grading of five attributes as per RBE No. 4/01. It is the responsibility of the W.P.(C) No. 2392/2015
5|Page DPC to consider the aforesaid attributes to calculate the marks in record of service. It has been assailed that the order dated 18.11.2014 passed by the learned Tribunal directing the respondents (petitioners herein) to place the respondent in the panel straight way within one month in service book is grossly erroneous and liable to be set aside.
12. Further it contends that the observation made by the learned Tribunal in paragraphs 14 and 20 of the impugned order are absolutely not based on record wherein the learned Tribunal has held that there was a submission on the part of the learned counsel for the Railway authorities that due to inadvertent mistake on the part of the Railway, the petitioner got one less mark so the said one less mark has to be added. The prayer for review of the said observation by the learned Tribunal was not entertained by the learned Tribunal in R.A. No. 17/2014 by order dated 27.01.2015, which is also liable to be set aside. It was the submission of the respondents (petitioners herein) that there was an inadvertent error by the DPC and such error was required to be rectified/cured by holding review of the DPC for reassessment of the marks scored by the respondent in record of service and the learned Tribunal has failed to appreciate the matter and erred in law by believing the aforementioned undertaking by the Railway authorities to be a concession to grant one mark more. Thus the petitioners contend that in view of the rejoinder filed by the respondent resulting the finding of facts that ACR/APAR pertaining to the period with effect from 01.04.2008 to 31.01.2009 was not placed before the DPC and while examining the above aspects, the Railway authorities found the contention of the respondent to be correct, and accordingly, the petitioners/Railway authorities made prayer before the learned Tribunal for granting leave to hold review of the DPC to re- assess the marks awarded to the sole respondent pertaining to the APARs i.e. the record of service but the learned Tribunal passed the impugned order assuming the power of the DPC, directing the petitioners herein to add one marke in record of service of the respondent and appoint him to the post of AME is not proper and subject to judicial review of this Court.
13. We have considered the rival contention of the learned counsel for both the parties as well as matters on record and the pleadings between the parties before the W.P.(C) No. 2392/2015
6|Page learned Tribunal as well. It transpired from the matters on record that there is no dispute as regards the findings of written examination of the sole respondent herein. Only the point of deviation is that the respondent shown to be secured 9 marks in the viva-voce and 20 marks in record of service and it is also undisputed that the respondent herein secured 2nd highest marks in the said examination and because of the fact that he could not secure total qualifying mark 30 in record of service and viva-voce, he could not be declared to be successful candidate to the aforesaid post.
14. The contention of the respondent by filing his subsequent rejoinder is that the ACRs for the period of total five years was not considered by the Selection Board is also not disputed by the Railway authorities. Rather admitting to be an inadvertent mistake, the Railway authorities has urged for scrutinize the same by holding review D.P.C. to assess the mark of ACRs of the respondent as per the guidelines.
15. Mr. H.K. Das, learned Standing Counsel, N.F. Railways strenuously urged before this Court that the learned Tribunal cannot assumed the role of DPC to assess the ACRs of the respondent and direction passed in this regard to add the mark in the record of service of the respondent is beyond jurisdiction and hence liable to be set aside. On the other hand, Mr. S. Dutta, learned counsel for the respondent has vehemently opposed such contention of the learned counsel for the petitioners that the ACRs of the respondent is required to be reassessed by the DPC, is beyond their pleaded case.
16. Referring into paragraphs 8, 9 and 10 of the written statement so filed by the official respondents (petitioners herein) in the O.A. No. 315/2013, it has been urged before this Court that the petitioners herein seriously contended that the respondent never secured one 'Outstanding' and four 'Very Good' as has been challenged by the respondent and instead the APARs of the respondent for last five years contains one 'Outstanding' - 1 x 5 = 5 marks, three 'Very Good' - 3 x 4 = 12 marks and one 'Good'
- 1 x 3 = 3 marks, totaling to 20 marks. As because the respondent secured only 20 marks in the record of service and 9 marks in viva-voce and as such he failed to secure the minimum qualifying 30 marks in record of service and viva-voce taken together. Denying the allegation of malafide, it has been contended further in W.P.(C) No. 2392/2015
7|Page paragraph 10 of the written statement, that challenge to the selection process as well as question the wisdom of the Selection Committee, without there being apparent proof of malafide is required to be rejected. The Hon'ble Apex Court restricted the scope of judicial review to the extent of questioning the wisdom of Selection Committee.
17. Pointing towards the said averments so made earlier by the petitioners herein, it has been seriously contended that the criteria as to how the assessment is to be made against the findings of ACRs has been prescribed by the Rule of IREM. The Selection Committee by taking into two months ACR of the present respondent has graded 'Good' of the respondent for the year, 2008-2009 whereas by subsequent findings through RTI reveals that his grading is 'Very Good' for the remaining period of 10 months. Going by the said calculation there can be only one finding that the grading of respondent is 'Very Good' for the whole period i.e. 2000-2009. That being so while upgrading the grade from 'Good' to 'Very Good' automatically 4 marks as against 'Very Good', instead of 3 against 'Good' can be calculated. Basing upon the said contention, the learned counsel for the respondent has submitted before this Court that there is no wrong in the findings of the learned Tribunal while holding that the Selection Committee has not taken into consideration the grading of ten months and has directed the Railway authorities to add one mark in the record of service, total marks as 21 instead of 20.
18. It is discernable from the pleadings before the learned Tribunal that the respondent herein raised affairs of malafide on the part of the Selection Committee while grading him in the viva-voce and record of service and the Railway authority, however, denied the same. It has been contended by the petitioners before the learned Tribunal that the Selection Committee consisted of high level officials and they have not committed any error while awarding the marks in the viva-voce and record of service and denied such malafide. It is pleaded that the whole selection process was within the ambit of established procedure and there is nothing to interfere with the result of the Selection Committee. Merely because the respondent herein secured 2nd highest mark in the written examination cannot claim to secure highest marks in the record of service and viva-voce as well and it is the wisdom of W.P.(C) No. 2392/2015
8|Page the Selection Committee. Of course, in case of awarding mark in the viva-voce, the wisdom of the Selection Committee will prevail but in case of the ACR, the Selection Committee is bound to award their mark as per the prescribed Rules of IRM. As per the averments made by the Railway authorities itself, the Rule prescribed for assessment of five years ACRs for the purpose of promotion and what will be the marks to be awarded against such ACR is also revealed in their written statement itself vide paragraph 10 (page - 82 of the writ petition).
19. It is an admitted position in this case that though Selection Committee required to consider five years ACRs of the incumbent while awarding marks against the record of service but they have taken only four years two months ACR of the respondent and has awarded 'Good' for as against the said two month period (2008- 2009). What prevented them to cause production of the ACR of the respondent for the whole period (pertaining to the period 2008-2009). The same aspect was brought on record by the respondent herein by obtaining report through RTI and can it be termed as inadvertent mistake, as pleaded by the petitioners herein.
20. The next consideration that whether such finding of fact that the respondent secured 'Very Good' as against the remaining 10 months which has upgraded him from 'Good' to 'Very Good', requires to be scrutinized by the DPC again while such calculation can be apparently made out? Answer of both the aspects will be 'No'.
21. A party cannot travel beyond his pleadings. The petitioners herein have turned up with some facts which were not pleaded before the learned Tribunal. They never referred about the Railway Board Circular No. RBE.4/01 pertaining to the recording of marks as against record of service. Whereas according to the learned counsel for the respondent, in view of the Railway Establishment Manual, Vol - I, Revision Edition, 1989, the said Rule is no more applicable. In Chapter - II, while para 204.6 and 204.7 has clarified the aspect that marks for record of service should be given on the basis of confidential report and relevant service records. And in case a written test is not held for adjudging professional ability, this should also be assessed at the viva-voce through question with a practical basis. It has been pointed out that the aspect that such grading of ACR is required to be reassessed on some personal traits as has been W.P.(C) No. 2392/2015
9|Page pressed into, holds not good and not permissible. Learned counsel for the respondent invited our attention to the relevant provision embodied in the Indian Railway Establishment Manual. Respondent herein annexed the relevant Railway Board instructions regarding selection of 30% LDCE and awarding works in Group - B Selection/examination from Guide to Railway Manual (2009-10) vide Annexure - 2 which provides as follows:
"2. Awarding the marks in Group 'B' selection/examination -
(i) Assessment should be made on confidential reports for the last five years.
(ii) Marks should be given as under for maximum of 25 marks covering five CRs.
Outstanding 5 marks
Very Good 4 "
Good 3 "
Good/Not fit 2.5 "
Average 2 "
Below Average 1 mark
Note : (a) The classification Not fit/Not yet fit in the lst 2 CRs will earn 2.5 points but in the first two CRs such classification will earn 3 points.
(b) The above criteria/procedure for awarding marks is applicable to the selections against 70% of the vacancies. For LDCE the marks will be doubled."
Proviso (b) column refers that for LDCE marks will be doubled. (This has a reference of R.B.'s No. E(GP)/2008/2/27 dated 24.03.2009.
The above proviso indicates the Group - B candidate appearing from LDCE, will get double mark as has been assigned to other 70% vacancies.
21. We have given anxious consideration to the forceful submissions of the learned counsel for both the parties and the relevant Rules in this regard pertaining to the selection of Group - B post. Also considered the relevant case laws cited a relied by the respective parties.
W.P.(C) No. 2392/201510 | P a g e
22. Leaned counsel for the respondent has relied upon the decision in the case of K . P rabhak ar R ao Vs. Union of I ndia , reported in AI R 2002 SC 205 , wherein the Hon'ble Apex Court held that the fixation of minimum percentage of marks in viva- voce is illegal and held that it would not be reasonable to deny the relief to those who placed in higher position in merit list. Basing upon the said decision, the respondent has submitted that he is also entitled to enclose in the merit list as he secured 2nd highest marks in the aggregate marks.
23. To bolster of the submission that the decision of the learned Tribunal is beyond its jurisdiction, the learned counsel for the petitioners has relied upon the decisions of (1) Union Public Service Com m ission Vs. Hiranyalal Dev & Ors. and State of Assam & Ors Vs. Union of I ndia & Ors, reported in AI R 1988 SC 1069(1) , (2) The Deputy I nspector General of Police & Anr. Vs. R . M ook an , reported in 1999 AI R SCW 4716 and (3) Union of I ndia & Anr. Vs. Ashutosh Kumar Srivastava & Anr., reported in AI R 2001 SC 4004 . In the aforesaid decisions, it has been held that the Administrative Tribunal while granting relief can only direct consideration of case of employee for promotion and cannot issue direction to promote him. The learned Administrative Tribunal cannot make its own assessment of employee by reference to his experience and about what marks should have been allotted to him in the test.
24. The facts and circumstances in the aforesaid cases are quite different than that the matter before the learned Tribunal. Here the learned Tribunal has not assessed the mark of respondent of its own. The case of the respondent is crystal clear that he has not been given the required mark as against the record of service for one period and his assessment was made only for two months as against the ACR of 2008-2009 and while admittedly grading of the remaining ten months is 'Very Good', then the totality of the overall grade will certainly be 'Very Good'. The Selection Committee did not adhere to obtain the report of the whole particular year and has awarded mark for four years two months which is beyond the prescribed Rules. There appears no any illegality and irregularity on the part of the learned Tribunal while passing direction for adding one mark as against record of service of the respondent. It is also noted that though the other successful candidates who were added as private respondent before W.P.(C) No. 2392/2015 11 | P a g e the learned Tribunal has not challenged the aforesaid direction of the learned Tribunal meaning thereby that they have not raised any grievances against the findings of the learned Tribunal though they have contested the case. But the learned Railway authorities have chose to challenge the same with some new aspect of the story which they have never pleaded before the learned Tribunal.
25. Resultantly, there being no illegality in the order of the learned Tribunal, the writ petition stands dismissed. No order as to cost.
JUDGE JUDGE
P.K. SINHA
W.P.(C) No. 2392/2015
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