Central Administrative Tribunal - Allahabad
Kapil Deo Pandey S/O Late Sri Kamla ... vs Union Of India Through General Manager on 12 July, 2013
Reserved on 17.05.2013
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH,
ALLAHABAD
Original Application No. 949 of 2008
Allahabad this the, _12th day of _July, 2013
Honble Mr. Justice S.S. Tiwari, Sr. J.M./HOD
Honble Mr. Shashi Prakash, Member (A)
Kapil Deo Pandey s/o Late Sri Kamla Pandey, Aged about 48 years r/o 345-B, Near Railway Colony, N C R, Rail Gawn, Subedar Gang, Allahabad.
Applicant
By Advocate: Sri O.P. Gupta
Versus
1. Union of India through General Manager, North Central Railway, Subedar Gang, Allahabad.
2. Chief Personnel Officer, North Central Railway, Subedar Gang, Allahabad.
3. General Manager, North Central Railway, Subedar Gang, Allahabad.
4. Satish Kumar, APO, NCR Jhansi, through DRM, NCR, Jhansi.
5. Veer Prakash Singh, APO, NCR, Allahabad through DRM, NCR, Allahabad.
6. Indra Pal, APO NCR, Allahabad through DRM, NCR, Allahabad.
Respondents
By Advocates: Sri Anil Kumar (for Respondents 1 to 3)
Sri Sudama Ram (for Respondents 4 to 6)
O R D E R
By Honble Mr. Justice S.S. Tiwari, Sr. J.M./H.O.D. Instant O.A. has been filed by the applicant for the following relief(s): -
(i) to quash the impugned rejection order dated 21-8-08 [Ann.- A-11].
Honble Tribunal may further be pleased to declare that the valuation of the answer sheets of the applicant has been done by the evaluating officer, arbitrarily and in contravention of Note [3] and [5] of Rule 9 [1] of aforesaid selection rules.
(ii) to direct the respondents to re-examine the answer sheets of the applicant for both the papers within the stipulated period as per the answers given in model answer sheets, as required under the aforesaid rules and to award correct and proportionate marks to the applicant.
(iii) to direct the respondents to arrange for the Viva Voce test for the applicant, if after revaluation of answer sheets, applicant is found qualified in the written examination.
And if applicant is found successful in viva voce test also, respondents may further be directed to promote the applicant as APO [Group-B Service] retrospectively by creating supernumerary post with all consequential benefits of such promotion.
(iv) Alternatively, it is further prayed before the Honble Tribunal to be pleased to quash the entire selection proceedings as well as empanelment order dated 30-7-2008 and promotion orders dated 1-8-2008 and 4-9-2008 as passed in favour of the private respondents No. 4, 5 and 6 and the official respondents may further be directed to hold fresh selection immediately in accordance with the rules, guide lines and procedure on the subject.
2. The facts of the O.A., in brief, are as follows: -
That the applicant was working as O.S. Grade II, R.P.F. under the Chief Security Commissioner, R.P.F., N.C. Railway, Allahabad. A notification was issued by the respondents on 25.04.2007 to conduct a Limited Departmental Competitive Examination for the purpose of promotion to the post of A.P.O. (Group B) service in the Personnel Department to form a panel of three persons (Two General and One S.C.) against 30% quota of the vacancies. All the Group C staff (`5000-8000) having a minimum five years regular service was entitled to participate in that selection. This selection was based on written examination and viva voce. In the written examination, there were two papers having 150 marks for each paper, and 90 marks were necessary in each paper to qualify in the written examination. In pursuance of the above, vide letter dated 23.08.2007 a list of 279 eligible Group C staff was published and they were called for the written examination. The name of applicant was at serial No. 5 in the aforesaid list. Accordingly, he was also allowed to appear in the aforesaid written examination. In the aforesaid examination, held on 29.03.2008, total number of 140 candidates, including 92 General, 42 S.C. and 06 S.T. candidates have appeared. The result of written examination was declared on 30.04.2008 in which 17 candidates were shown as successful. Only 04 candidates of the General category were shown successful and 13 candidates in the S.C. category were declared successful. The applicant belongs to General category. Being aggrieved from the aforesaid, the applicant moved an application under R.T.I. Act for obtaining the copy of his answer sheets and he also demanded the copy of model correct answer sheets, which was required for an Examiner to prepare in advance before examining the answer sheets of the candidate. Copy of his answer sheets were supplied but, as regards supply of model answer sheets, he was informed that no such answer sheet was prepared by the Examiner hence, it could not be supplied to the applicant.
3. The applicant submitted a detailed representation before the General Manager, N.C. Railway on 22.07.2008 and requested for re-evaluation of his answer sheets by the other competent authority but, no reply was received rather the respondents fixed the date for Viva Voce on 30.07.2008. The applicant filed an O.A. No. 779/2008 before this Tribunal in which the Tribunal directed the respondent No. 3 at the admission stage of the O.A. to consider the prayer of the applicant made in his representation dated 22.07.2008 and to take a decision with regard to re-evaluation of the answer sheets of applicant within a period of six weeks.
4. The representation of applicant was rejected by respondent No. 3 in an arbitrary manner without considering the points raised by him. The applicant has been awarded less and disproportionate marks in an arbitrary manner as no model answer sheet was used for evaluating the answer sheets. In the meantime, the respondents finalised the aforesaid selection and promoted three persons namely Satish Kumar, Veer Prakash Singh and Indra Pal as A.P.O. Group B vide promotion order dated 30.07.2008.
5. This O.A. was filed by the applicant mainly on the grounds that the applicant has answered all questions correctly and the Examiner also did not find them incorrect, as such, applicant was entitled to get full marks in the objective type answers and proportionate marks in narrative type answers. The marks awarded to the applicant are less and disproportionate. There is provision for preparing the model answer sheets in advance for evaluating the answers but no model answer sheets were prepared. The applicant has suffered an irreparable loss because of arbitrary functioning of the respondents. Entire selection proceedings as well as empanelment and the promotion orders so made on the basis of such selection are wholly arbitrary and illegal as same were done in violation of the Rules, Guidelines and Procedure on the subject.
6. The respondent Nos. 1, 2 and 3 have filed the Counter Reply mainly denying the allegations of the applicant, alleging that assessment and correctness of the answers is the satisfaction of the Evaluating Officer and to allot marks according to that assessment. As regards preparation of the model answer sheets by the Evaluating Officer, the relevant instructions are in the nature of guidelines for Personnel Officers and members of the Selection Board, which are to be kept in mind during the selection process. Since the selection was for the Assistant Personnel Officer, evaluation of the answer sheets was entrusted to the competent officer of requisite status who is a professional expert in the establishment field and well aware in personnel matter. The questions asked in both the papers are relating to the routine work for the Evaluating Officer, therefore, preparation of answer key before evaluation of answer sheets was not required to be prepared by him. The contention of the applicant that arbitrarily and disproportionately marks have been awarded to him, is incorrect. No personal allegation or biasness has been alleged against the Evaluating Officer, as such, any allegation to the contrary is incorrect. The applicant has secured 91 marks out of 150 in first paper and 68 marks out of 150 in second paper. Even in second paper, against some answers, he has been assessed Good by the same Evaluating Officer so he cannot say that the answers in second paper were examined in a mechanical way or in arbitrary manner. The applicant has got no case and the O.A. deserves to be dismissed.
7. The respondents No. 5 and 6 have filed separate Counter Reply mainly denying the allegations of the applicant, stating that the marks were awarded to all candidates uniformly and without any prejudice as decoding of roll number was adopted by the Selection Committee. The applicant cannot challenge the selection on the ground that he was awarded less marks by the Evaluating Officer. The Tribunal has got no jurisdiction to pass order to re-evaluate the answer sheets if there is no grave failure on the part of official respondents while examining the answer sheets. There is no allegation of malafide or corrupt practice hence, the selection process cannot be challenged. It is further submitted that since there is no provision of re-evaluation of the answer sheets under the rules on complaint of obtaining less marks awarded by the Evaluating Officer, such plea of the applicant is not sustainable. No mandatory provision has been violated. Awarding of lesser marks to the applicant on any answer does not mean that any procedure has been violated. The answer sheets of 134 candidates including General and Reserved category were examined by the Evaluating Officer uniformly. The applicant has got no case and the O.A. should be dismissed.
8. Rejoinders have been filed by the applicant mainly reiterating the stands taken in the O.A., denying the averments made by the respondents in their Counter Replies.
9. The applicant has placed reliance on documentary evidence by filing papers including annexure A-1 to A-11.
10. No documentary evidence has been filed by the respondents.
11. We have heard the learned counsel for the parties and perused the evidence on record.
12. The main contention of learned counsel for the applicant has been that the answer sheets of the applicant were examined by the Evaluating Officer without prior preparation of model answer sheets, and on the strength of this fact, it has been submitted that the answer sheets of the applicant have been examined in an arbitrary manner. The main challenge to the argument of applicants counsel by the respondents has been that there is no such provision enabling the applicant for demanding re-evaluation of the answer sheets mainly on the ground that he has got less marks in answer of some questions in second paper. It is also the contention of respondents that the applicant has appeared in the selection process and he cannot challenge the same afterwards. Learned counsel for the applicant has placed reliance on the decision of Honble Supreme Court in the case of The Railway Board and Others vs. P.R. Subramaniyam and others 1978 Supreme Court Cases (L&S) 35, in which the Honble Supreme Court has observed as follows: -
Between Rules in Indian Railway Establishment Code framed under Article 309 and Circulars of Railway Board issued under Rule 157 of that Code, the latter will prevail.
A perusal of annexure A-5 shows that certain guidelines for Personnel Officers and Members of the Selection Board have been issued by the railway authorities in which a specific mention has been made that these guidelines are only for official use, in which under the Note (3) in para (9), one guideline is that proper an uniform evaluation of the answer sheets, especially for narrative type of answers should be ensured. In order to achieve this objective the officer evaluating the answer sheets before starting the evaluation should keep ready the correct answers for the questions, separately for the objective and narrative type and then evaluate the answer sheets with reference to these answers. On the basis of above Note, learned counsel for the applicant has submitted that since no answer sheets were prepared prior to evaluation of the answer sheets of the applicant, it should be presumed that the evaluation of the answer sheets of applicant has not been done in a proper manner. On the other hand, it has been contended by the respondents side that this Note (3) is not a statutory provision nor a mandatory one and if no prior answer sheet has been prepared by the Evaluating Officer, it does not affect the assessment of answer sheets of the applicant. No prejudice or malafide has been alleged by the applicant against the Evaluating Officer. It is also clear from the records that in the first paper the applicant has secured 91 marks and even in second paper in which he has been awarded 68 marks, a perusal of the answer sheets shows that for certain answers he has been awarded 11 marks out of 15 marks or 18 marks out of 30. It cannot be said that deliberately or intentionally he has been awarded less marks on some answers. The applicant has not been able to show that Note (3), mentioned above, has got a statutory force or any binding force in the eye of law. In the case of Chief Commercial Manager & Ors. Vs. G. Ratnam 2008 (1) All India Services Law Journal 433, the Honble Supreme Court while expressing its opinion on various chapters of the Vigilance Manual dealing with Railway Vigilance Organization and its role, and paragraphs-704 and 705 has observed as follows: -
Paragraphs 704 and 705, as noticed earlier, cover the procedures and guidelines to be followed by the Investigating Officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the Railway officials. Broadly speaking, the administrative rules, regulations and instructions, which have no statutory force, do not give rise to any legal right in favour of the aggrieved party and cannot be enforced in a Court of law against the administration. The executive orders appropriately so called do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued. Such an order would confer no legal and enforceable rights on the delinquent even if any of the directions is ignored, no right would lie. Their breach may expose the subordinate authorities to disciplinary or other appropriate action but they cannot be said to be in the nature of statutory rules having the force of law, subject to the jurisdiction of certiorari. It is well-settled that the Central Government or the State Government can give administrative instructions to its servants how to act in certain circumstances; but that will not make such Instructions Statutory Rules which are justiciable in certain circumstances. In order that such executive instructions have the force of Statutory Rules, it must be shown that they have been issued either under the authority conferred on the Central Government or the State Government by some statute or under some provision of the Constitution providing there for. . . . . . Similarly in State Bank of Patiala Vs. S.K. Sharma (1996) 3 SCC 364, the Honble Supreme Court has observed as follows: -
. . .in a case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the stand point of substantial compliance. The order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. In the light of above observations of the Honble Supreme Court when we consider the present case, we find that the guidelines for personnel officers and members of the Selection Board issued by the departmental authorities are only for guidance in order to conduct the examination and selection process fairly and smoothly and without any prejudice to anyone. In the present case, it is apparent that the applicant has nowhere stated that the Evaluating Officer was prejudiced with him or he had any malafides with the applicant or deliberately or intentionally he has given him lesser marks than others on certain answers in the second paper. As already mentioned above, even in the second paper, the applicant has secured 11 marks out of 15 marks in certain answers. Thus, it cannot be said that any prejudice was caused to the applicant by not prior preparation of answer sheets.
13. As regards second point that once the applicant has participated in the selection process, it is not open for him to challenge the selection process, the record shows that the applicant along with others participated in the examination and when the result of written examination was declared and he did not find his name in the list of successful candidates, then he started to challenge the selection process. In the case of Dhananjay Malik and others Vs. State of Uttaranchal and others (2008) 4 Supreme Court Cases 171, the Honble Supreme Court has held that having unsuccessfully participated in the process of selection without any demur, they are estopped from challenging the selection criterion. If they had any valid objection, they should have challenged the advertisement and selection process without participating in the selection. Similarly, in the case of Amlan Jyoti Borooah Vs. State of Assam and others (2009) 3 Supreme Court Cases 227, the Honble Supreme Court has held that a candidate who had subjected himself to a faulty selection process could not question it later on. Similarly, in the case of Om Prakash Shukla vs. Akhilesh Kumar Shukla 1986 SCC (L&S) 644, the Honble Supreme Court has held as under: -
When the petitioner appeared at the examination without protest and when he found that he would not succeed in the examination, he filed a petition challenging the said examination. The High Court should not have granted any relief to such a petitioner.
14. In the light of above discussions, we are of the view that in absence of any allegation of malafides or prejudice or other ill will against the Evaluating Officer, the selection process in which the applicant has participated, cannot be challenged subsequently on the ground that he has obtained less marks in second paper in certain answers. Mere non-preparation of answer sheets by the Evaluating Officer prior to evaluation of the answer sheets of the applicant does not make the entire selection process faulty and invalid. Accordingly, there is no merit in the case of applicant and it deserves to be dismissed. O.A. is dismissed accordingly. No order as to costs.
{Shashi Prakash} [Justice S.S. Tiwari]
Member A Member J
/M.M/
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