Central Administrative Tribunal - Bangalore
Kalidas Hari Bhat vs South Western Railway on 18 April, 2022
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OA.No.170/288‐291/2020/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATIONS NO.170/288/2020, 170/289/2020,
170/290/2020 AND 170/291/2020
ORDER RESERVED ON:08.02.2022
DATE OF ORDER: 18th April 2022
CORAM:
HON'BLE SHRI SURESH KUMAR MONGA, MEMBER (J)
(On video conference from Central Administrative Tribunal, Chandigarh Bench
at Chandigarh)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
(On video conference from Central Administrative Tribunal, Bangalore Bench at
Bangalore)
1.T. Ashok Kumar
S/o T. Mahadev,
Aged 46 years,
Assistant Personnel Officer
Hubbali, South Western Railway, Hubbali.
Residing at, House No.10,
Opposite JK School,
Mrutyunjay Nagar,
Shakti Colony,
Hubballi-580032. ....Applicant in OA.No.288/2020
2.D. Madhu
Son of D. Narasimhulu,
Aged 48 years,
Assistant Personnel Officer,
Hubbali, South Western Railway,
Hubbali.
Residing at Flat No.301, Vigneshwar Residency,
Nehru Nagar, Gadag Road,
Hubballi-580020. ....Applicant in OA.No.289/2020
3.Nadiminti Gopala Krishna
Son of Seetha Rama Mohana Rao,
Aged 41 years,
Assistant Personnel Officer,
Mysore, South Western Railway,
Mysore.
Residing at 149/A, Railway Officers Colony,
Vontikoppal,
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OA.No.170/288‐291/2020/CAT/Bangalore Bench
Mysore-570002. ....Applicant in OA.No.290/2020
4.Kalidas Hari Bhat
Son of K. Ramakrishna Murthy,
Aged 54 years,
Assistant Personnel Officer,
Bangalore, South Western Railway,
Bangalore.
Residing at 361/E, Ty-IV, Opposite Stepping Stones
Railway Nursery School, M.G. Railway Colony,
Bangalore-5600023. ....Applicant in OA.No.291/2020
(By Advocate Shri Kashyap N. Naik - through video conference)
Vs.
1. Union of India
Represented by General Manager,
South Western Railway,
Rail Soudha, Gadag Road,
Hubballi-580020.
2.Principal Chief Personnel Officer,
South Western Railway,
Rail Soudha, Gadag Road,
Hubballi-580020. ....Respondents in OA Nos.288 to 291/2020
(By Advocate Shri N. Amaresh - through video conference)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicants in OA. Nos. 170/288/2020, 170/289/2020, 170/290/2020 and 170/291/2020 are all seeking common relief with regard to quashing the Notification No. SWR/HQ/P.607/Pers./Gr.B/70%/2019 dated 20.05.2020 issued by Respondent No.2 seeking to conduct Computer Based Test for selection to the post of Assistant Personnel Officer in Level 8 of Pay Matrix (GP Rs.4800/-) in Personnel Department against 70% quota, and also to grant stay to the operation of the notification dated 20.05.2020 until the disposal of 3 OA.No.170/288‐291/2020/CAT/Bangalore Bench the present application, for the reason that the applicants are currently holding the post of Assistant Personnel Officer (APO).
2. With the consent of learned counsels for the parties, OA. Nos. 170/288/2020, 170/289/2020, 170/290/2020 and 170/291/2020 are taken up together for disposal as a common question of law and fact is involved in all these cases.
3. The facts are extracted from OA. No. 170/288/2020, T. Ashok Kumar vs. UOI and others, and the said case has been treated as the lead case.
4. The applicant in OA. No. 170/288/2020, T. Ashok Kumar, has filed the present Original Application under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:
a) To quash the Notification No. SWR/HQ/P.607/Pers./Gr.B/70%/2019 dated 20.05.2020 issued by Respondent No.2 seeking to conduct Computer Based Test for selection to the post of Assistant Personnel Officer in Level 8 of Pay Matrix (GP Rs.4800/-) in Personnel Department against 70% quota.
b) To stay the operation of the notification dated 20.05.2020 until the disposal of the present application, for the reason that the applicant is currently holding the post of Assistant Personnel Officer (APO).
5. The matter was considered by this Tribunal on 05.06.2020 and the respondents were directed not to conduct any further proceedings in the 4 OA.No.170/288‐291/2020/CAT/Bangalore Bench matter till the next date of hearing. This interim relief granted by this Tribunal is continuing till date.
6. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant joined the services of the Respondent organization as Junior Clerk, Office of Chief Signal Inspector, Akola, Hyderabad Division, South Central Railway, Secunderabad, in 1994. He was later promoted as chief Office Superintendent in the office of Deputy General Manager, South Western Railway in 2003.
b) South Western Railway, Headquarters issued a notification on 10.04.2019 calling for the selection and promotion to Group 'B' post of Assistant Personnel Officer in Level 8 of Pay Matrix in Personnel Department against 70% quota earmarked for this post, vide Notification No. SWR/HQ/P.607/Pers./Gr.B/70%/2019. As per this notification, four vacancies were notified, which included three UR vacancies and one SC vacancy. The notification prescribed the eligibility conditions for the employees to participate in the selection process. The selection process comprised of a written examination (one paper carrying 100 marks), followed by a viva voce (25 marks) and assessment of record of service (25 marks). The qualifying marks for the written examination were 60% (60 marks). Similarly, in the viva voce test, including record of service assessment, the qualifying marks were 60% (30 marks).5
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c) The final formation of panel for promotion to Gr. B Posts was to be on the basis of Seniority-cum-Suitability.
d) 110 employees were shortlisted as eligible employees to participate in the selection process. The applicant was the senior most amongst the 110 employees who were eligible for Computer Based Test (CBT). The CBT was conducted on 21.09.2019 and the applicant participated in the said examination. Further, a supplementary exam was conducted on 19.10.2019 for the employees who could not participate in the CBT held on 21.09.2019.
e) As per the result of the CBT examination notified by the respondents, 18 employees including the applicant qualified for the viva-voce subject to their medical fitness. In addition to this, some candidates belonging to SC community were declared to be eligible for the viva- voce under the "Best among the failed' scheme against the vacancies reserved for SC.
f) Subsequent to conduct of viva-voce and assessment of service records, a panel of four persons was approved vide order dated 02.12.2019. Three persons, including the applicant, were listed in 'Outstanding' category and one person was listed amongst 'Good' category.
g) This selection panel was duly approved by the General Manager, South Western Railway, Hubbali on 02.12.2019. The applicant was subsequently appointed on promotion and posted as APO/UBL. The 6 OA.No.170/288‐291/2020/CAT/Bangalore Bench applicant accordingly joined his post as Assistant Personnel Officer, Hubbali and was serving as such.
h) Subsequently, Respondent No.2 issued another notification bearing No. SWR/HQ/P.607/Pers./Gr.B/30%(LDCE)/2019 dated 07.02.2020 for selection for filling up of the remaining Gr. B posts of Assistant Personnel Officer in Level 8 of Pay matrix in Personnel Department against 30% LDCE quota. The appointment under this quota is yet to be made.
i) The respondents, subsequently, issued a notification dated 20.5.2020 deciding to re-conduct the CBT test for the post of APO, which was already filled up by the applicant in view of the order dated 04.12.2019. The notification further contained a list of 91 employees who were made eligible to take the re-examination. The said list also contained the name of the applicant who is presently working as APO/UBL. No explanation or reason was given for conducting this re-examination. It was simply mentioned that the competent authority has decided to re- conduct the CBT due to "administrative reasons", without explaining any legal and cogent reasons. The respondents have neither mentioned any irregularities nor have conducted any enquiry regarding the said CBT, but have arbitrarily and whimsically nullified the earlier appointments by deciding to re-conduct the test.
7. The respondents have filed their written statement wherein they have averred as follows:
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a) The applicant was posted as Assistant Personnel Officer, in Level 8 of pay matrix in Personnel Department against 70% quota based on Computer Based Test Examination that was conducted by the South Western Railway on 21.09.2019.
b) The office received representations from some candidates who were not successful in the selection. A detailed analysis of the Question Papers and Key Answers was conducted by the administration, where it was noticed that there were some discrepancies in the question paper and answer keys in both the examinations i.e., the examination conducted on 21.09.2019 and the supplementary examination conducted on 24.10.2019. These discrepancies were as follows:
Date of Exam Number of Wrong Number of Questions for Total number of Questions which Answer key is Questions with issues wrong 21.09.2019 02 11 13 24.10.2019 02 08 10
c) Further, in the CBT conducted on 24.10.2019, 01 question was repeated and 02 questions from CBT conducted on 21.09.2019 were included. In both the CBTs, option to answer only 100 out of 110 questions was available to candidates and negative marks (1/3rd) were awarded for wrong answers in both the examinations. 8
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d) These representations were filed by the following candidates who had obtained copies of keys answers of the CBTs through RTI:
1. Shri Tirumala Reddy, vide representation dated. 07.1.2020
2. Shri Shaik Shah Khadri, vide representation dated 08.1.2020
3. Shri E.S. Yunas Basha, vide representation dated 24.1.2020.
e) The administration, after a detailed analysis of all the questions and answer key of both the CBTs, came to the conclusion that, there have been widespread infirmities of an all-pervasive nature which could be said to have undermined the selection process as a whole.
f) The Hon'ble Apex Court in the case of Union of India and others vs. Rakesh P.U Puthuvalnikathu and others, circulated by Railway Board letter No. E(GP)2004/2/72 dated 08.9.2005, has ruled against cancellation of examinations, unless warranted by a categorical finding that there have been widespread infirmities of an all-pervasive nature which could be said to have undermined the selection process itself as a whole.
g) In terms of para 14.3 of Master Circular 68, 'once a panel is approved by the General Manager, no amendment or alteration in the panel should be made except with the prior approval of the Railway Board'. The General Manager, while ordering the re-examination, has therefore also decided that action is to be taken on the current persons working as APOs after finalization of the new panel. After re-conduct of CBT, announcement of results and conduct of viva-voce, the 9 OA.No.170/288‐291/2020/CAT/Bangalore Bench recommendations of the DPC will be forwarded for approval for cancellation of Panel No.110 dated 02.12.2019 by duly issuing show cause notices to the incumbents and forming a fresh panel. After obtaining the approval of Railway Board, show cause notices will be issued to the present incumbents for their reversion.
h) As per para 204.10 of Chapter II of Indian Railway Establishment Manual Volume I, once a panel is approved by the General Manager, no amendment or alteration in the panel should be made except with the prior approval of the Railway Board.
i) As per para 208.3 of Chapter II of Indian Railway Establishment Manual Volume I "Representations against selections should be dealt with on merits without restriction of any time limit for their submission".
j) As per para 228 Erroneous promotions (II) "(a) The orders of notification of promotion or appointment of a railway servant should be cancelled as soon as it is brought to the notice of the appointing authority that such a promotion or appointment has resulted from a factual error and the railway servant concerned, should, immediately on such cancellation, be brought to the position which he would have held but for the incorrect orders of promotion or appointment. In the case, however, of a railway servant, who have been erroneously promoted and appointed to a post in a substantive capacity, procedure prescribed in Board's letter No. E50/IRCI/16/3 dt. 23.7.1954 for rescinding the irregular confirmation of a railway servant should be followed/and only 10 OA.No.170/288‐291/2020/CAT/Bangalore Bench thereafter the railway servant concerned should be brought down to the position which he would have held but for the erroneous promotion/ appointment by the issue of orders as mentioned above. Service rendered by the Railway servant concerned in the post to which he was wrongly promoted/ appointed, as a result of the error should not be reckoned for the purpose of increments or for any other purpose in that grade/ post to which he would not normally be entitled but for the erroneous promotion/ appointment." As per para 228 (II) (a) per Note under para 228(II) (d) of Chapter II of Indian Railway Establishment Manual Volume I as per Annexure R-7. In view of the above, the General Manager, after a detailed analysis, has taken a judicious decision to reconduct the CBT without disturbing the existing panel. The copy of the approval noting is placed at Annexure -5.
8. The respondents also filed MA.No.212/2020 praying for vacation of the interim relief dated 05.06.2020 staying the operation of the order dated 20.05.2020. In this MA, the respondents reiterated that the General Manager of South Western Railway has taken a judicious decision to re-conduct the CBT and to take action on the applicant working as APO only after finalization of the new panel. They further pleaded that the interim stay had been passed ex-parte by this Tribunal without hearing the respondents.
9. In their reply to this M.A. No: 212/2020, the applicant has submitted as follows:
a) the respondents have arbitrarily decided to reconduct the whole process for promotion to the post of APO based on few representations by 11 OA.No.170/288‐291/2020/CAT/Bangalore Bench unsuccessful candidates in the CBT. The respondents have not cancelled the panel or given any findings with regard to any error/ irregularity in the examination process or procedure that would render the promotion of the applicant as either erroneous or faulty.
b) The General Manager ought to have taken the approval of the Railway Board before deciding to conduct a fresh selection process but has failed to do so.
c) Once a panel is approved by the General Manager, no amendment or alteration can be made unless approved by the Railway Board in terms of para 204.10 of the IREM. In the instant case, the panel was approved on 02.12.2019 and accordingly posting orders were issued on 04.12.2019 through which the applicant was promoted and started discharging his duties as APO.
d) The General Manager (Respondent No.2) has unilaterally and arbitrarily decided to reject the selection panel and to re-conduct the CBT test without taking any prior approval of the Railway Board. This decision of the respondents is violative of the IREM and deserves to be set aside.
e) The contention of the respondents that the applicant has been promoted erroneously and is therefore covered under para 228 of the IREM Vol I is incorrect. The said provision is applicable to staffs who have been promoted due to any administrative error. The applicant herein was promoted on the basis of a well settled and recognized selection 12 OA.No.170/288‐291/2020/CAT/Bangalore Bench process. There was no infirmity or irregularity in the whole selection process. The alleged mistakes/errors in some of the questions in the question paper cannot amount to an administrative error.
f) The administration has come to a conclusion that there have been widespread infirmities of an all-pervasive nature which could have undermined the selection process itself as a whole. The applicant is also subjected to be affected due to the alleged infirmity. The applicant's case is no different from that of the other unsuccessful candidates who have made representations against the selection to the PCPO. Assuming that some questions were wrong, and some of the answers were not properly marked, the applicant too has suffered in terms of the marks for the answers given by him.
g) If any random previous question paper in any earlier tests conducted by the respondents is taken into consideration, some minor discrepancies like the instant one could have existed. This would not however compel the Tribunal to sit in supervision to framing of question papers and act as an invigilator. Based on few representations against the selection of the applicant, the General Manager cannot exercise the power of ordering a whole selection process as erroneous. Such usage and exercise of power is not provided under any law for the time being in force, is completely excessive in nature and is highly impermissible in the eyes of law.
10. In their rejoinder to the reply furnished by the respondents in the OA, the applicants have pleaded as follows:
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a) The respondents have stated in their reply that the General Manager, South Western Railway had taken a judicious decision to re-conduct the Computer Based Test (CBT) on account of certain errors in the questions and answer keys. However, the respondents did not explain or give any reasons at the time of issuing the notification dated 20.05.2020 and arbitrarily decided to re-conduct the examination jeopardizing the promotion and selection of the applicant herein.
b) After conduct of CBT, viva voce and after taking into account the record of service of the qualified candidates as per rules, the Selection Committee had recommended the names of the successful candidates to the General Manager. Subsequently, based on the recommendation of the Selection Committee, the panel was approved by the General Manager. Once a panel is approved by the General Manager, no amendment or alternation can be made unless approved by the Railway Board, in terms of para 204.10 of IREM. In the instant case, the panel was approved on 02.12.2019 and postings were also issued on 04.12.2019, through which the applicant was promoted. He also started discharging his duties as an APO from that date. The General Manager (Respondent No.2), subsequently, decided to reject the selection panel and to re-conduct the CBT without taking any prior approval of the Railway Board.
c) The note initiated by the Principal Chief Personnel Officer (PCPO) on 02.03.2020 clearly indicated that the following alternatives/options were available to resolve the issue:
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OA.No.170/288‐291/2020/CAT/Bangalore Bench i. All the papers are re-evaluated as per the revised key with the wrong questions being excluded from the question paper. ii. A selection is conducted afresh with a new question paper from the written examination stage.
d) The General Manager decided to initiate fresh selections from the written examination stage as suggested at (ii) above. Neither the options suggested by PCPO, nor the decision by the General Manager to re-
conduct the test are based on the provisions of IREM/IREC. The General Manager has falsely assumed powers and ordered for fresh selection process, without obtaining the approval from the Railway Board.
e) The respondents have taken the stand that the applicant is covered under Para 228 of IREM, Vol. I, stating that the applicant has been promoted erroneously. Provisions of the said para are not applicable to the applicant. The said provisions will be applicable to staff who have been promoted due to any 'administrative error'. The applicant was promoted on the basis of a well settled and recognised selection process. There was no infirmity or irregularity in the whole selection process. The alleged mistakes in some of the questions in the question paper cannot amount to an administrative error. The administrative error has been explained therein as when a candidate is promoted on account of wrong assignment of relative seniority of the eligible staff, or in cases where the full facts not placed before the competent authority. This is not applicable in the present case.
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f) Note in para 228 of IREM reads as follows:
"Where any selection is cancelled after declaration of result owing to procedural irregularities/ malpractice, due notice should be given to the candidates who have been declared selected."
g) There has also been no irregularity, nor any malpractice committed by the applicant. There was no expert finding by the Competent Authority that there was any irregularity or malpractice in the selection process. The selection panel appointed by the Selection committee was duly approved by the General Manager and there was no irregularity noticed therein. Hence, the above provision is not applicable in this case. The applicant should have been given a prior notice and his promotion should have been dealt with on merits. However, no such procedure was followed by the respondents.
h) The examination was conducted in a fair and practical manner and no candidate was put to any advantage over the other. All the candidates were placed at the same level, faced the same set of questions and participated in the whole selection process without any prejudice. There is no categorical finding to prove that there were any procedural irregularities or malpractices in the whole selection process.
i) The representations were submitted by a few of the candidates in the month of January 2020, much after the selection and appointment of the candidates, including the applicant. The CBT was conducted in September and October 2019. Apart from CBT, viva voce and service records were also considered. Subsequently, the applicant was selected 16 OA.No.170/288‐291/2020/CAT/Bangalore Bench in the selection panel. After nearly three months, the applicant was appointed as APO in December 2019. In January 2020, some unsuccessful candidates allegedly made representations, complaining about the errors in the question paper, which they had answered four months back. The alleged representations given by the unsuccessful candidates were clearly an after-thought and were made only after the appointment of the applicant as APO. Nothing prevented the unsuccessful candidates from challenging the alleged discrepancies immediately after the conduct of the exam, but the same was not done. The representations made to the PCPO were only as an afterthought.
j) Respondents in their reply have cited the case of Union of India and others vs. Rajesh P.U. Puthuvalnikathu and another in their support trying to justify the actions of the General Manager, South Western Railway in cancelling the examination. It is submitted that the Hon'ble Supreme Court in this case had held as follows:
"...In the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of all pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or other of irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or other reasons. 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 17 OA.No.170/288‐291/2020/CAT/Bangalore Bench 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 cancelling 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."
k) The Hon'ble Supreme Court has clearly held that the decision taken by the committee in cancelling the entire selection was unwarranted and unnecessary where the 'infirmity' or 'irregularity' was easily identifiable. In the present case, the respondents have alleged that there are 'irregularities' due to certain errors in the questions set by the committee and also account of some wrong answer keys. It is submitted that the alleged errors are easily identifiable and can be remedied without having the need to cancel the whole selection process. It is further submitted that in order to establish that there was any irregularity or infirmity in the selection process, the respondents ought to have placed on record some concrete material/ evidence that would establish the alleged infirmity or irregularity in the whole selection process.
11. Heard learned counsels for the parties and perused the pleadings made by them.
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12. In this case, the applicants are challenging the decision of the respondents to re-conduct the CBT, which was part of the overall selection process for selection of departmental candidates for appointment on promotion as Assistant Personal Officers (APO) within the 70% quota.
13. A perusal of the Rules governing promotion from Group 'C' to 'B' posts issued by Railways in Master Circular No.68, indicates that for the post of APO, the procedure prescribed for filling up of the promotional posts is that 70% posts are required to be filled up on promotion by selection on the principle of seniority-cum-selection. The remaining 30% posts are required to be filled up on merit determined on the basis of a Limited Departmental Competitive Examination (LDCE).
14. The present case relates to promotion under the 70% quota of these posts to be filled up by promotion on the principle of seniority-cum-selection. The procedure for empanelment or selection for these posts under 70% quota is as follows:
a) A Computer Based Test (CBT) carrying 100 marks, in which the qualifying marks are 60%.
b) Assessment of record of service and a viva voce. The viva voce carries 25 marks and assessment of record of service carries 25 marks. The qualifying marks for both viva and record of service is 30 marks, with at least 15 marks in the record of service.
15. The principle indicated by the respondents in their advertisement is that the finalisation of the panel for promotion would be on the basis of "seniority- 19
OA.No.170/288‐291/2020/CAT/Bangalore Bench cum-selection". The eligible candidates are, therefore, required to qualify in this examination by obtaining the minimum qualifying marks as indicated above. All successful/qualifying candidates are arranged as follows:
Those securing 80% marks and above are graded as "Outstanding" Those securing between 60 to 79% marks are graded as "Good".
"Outstanding" candidates are put above the candidates who are graded as "Good" with inter-se seniority being followed amongst the Outstanding candidates and the Good candidates.
16. In the present case, 4 candidates were finally selected in the panel with 3 of them, including the applicant, being treated as "Outstanding" and one candidate being treated as "Good". The candidates namely, Sh. T. Ashok Kumar, Sh. Kalidas Hari Bhat and Sh. Nadiminti Gopala Krishna were graded as "Outstanding" and Sh. D. Madhu was graded as "Good".
17. Subsequent to their selection, they were appointed as APO and were serving as APOs for around 4 months when, based upon representations made by some unsuccessful candidates, a decision was taken to re-conduct the CBT on the ground that there are errors in these tests. The stand taken by the respondents, in their reply, is that these errors are such, that these had resulted in widespread infirmities of an all-pervasive nature which could be said to have undermined the selection process as a whole. Reliance has been placed upon the decision of Hon'ble Apex Court in the case of Union of India & ors. vs. Rajesh P.U. Puthuvalnikathu & Anr. (supra), in this matter. 20
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18. The first question which needs to be examined is whether the errors as noticed by the administration, based on the representations made by some of the unsuccessful candidates, well after the entire selection process has been completed, are of a nature which could cause widespread infirmities in the entire selection process.
19. The total number of questions which were required to be answered by the candidates in this CBT was 100 out of 110 questions listed in the question paper. Out of these 100 questions, 2 questions were assessed to be wrong questions in both these examinations each. Besides this, in 11 questions in the CBT conducted on 21.2.2019 and in 8 questions in the CBT conducted on 24.10.2019, the answer keys were assessed as being wrong.
20. There appears to be no cogent reason as to why such errors, in these two question papers consisting of 110 questions each, were considered to be of an all-pervasive nature which could lead to major infirmities. This conclusion could only have been drawn after doing a re-evaluation exercise of the examination after using the correct answer keys and after dropping the wrong questions from each paper as suggested in the note of the PCPO. Moreover, this examination is admittedly, only qualifying in nature, where a successful candidate is required to obtain at least 60% marks to qualify in the examination. Admittedly, three out of four candidates selected in the final panel, are those, who had obtained more than 80% marks in their overall assessment which included viva voce as well as assessment of service record. It is beyond comprehension as to how the respondents came to the conclusion that the infirmities in the question paper amounting to 2 wrong questions out 21 OA.No.170/288‐291/2020/CAT/Bangalore Bench of 110 questions, and wrong answer keys in 11 other questions could lead to errors in the overall result of an all-pervasive nature. No cogent analysis seems to have been done by the respondents before coming to such a conclusion.
21. Moreover, any challenge to the questions contained in the question paper must be taken cognizance of by the respondents, within a reasonable prescribed time frame, after the conduct of the said examination, which is well before the evaluation is completed and results of the examination are announced for shortlisting of the successful candidates for the next stage of selection consisting of a viva voce and assessment of service records. The evaluation of the examination should normally be done after all challenges to any of the questions or the answer keys have been examined and disposed of by the experts, so that there is no scope for any challenge to the question paper well after the entire process is complete.
22. In the present case, the challenge to the question paper was made by some of the unsuccessful candidates well after the final panel of successful candidates was announced based on their performance in the entire process which included the CBT, Viva Voce and Assessment of their service records. The panel of the successful candidates had also been approved for promotion as APOs and they had been appointed as such and were performing their duties. It was at this stage that the impugned order was issued to re-conduct the CBT based on the representations made by the unsuccessful candidates who had duly participated in the selection process and only chose to challenge the question paper well after the entire process was over. 22
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23. The decision by the respondents, to conduct re-examination of CBT well after the entire selection process had been completed, can only be termed as arbitrary and a colourable exercise of power by the respondents.
24. The stand taken by the respondents that the final selection panel has not yet been cancelled so far and a review of the panel would be put up for consideration of the Railway Board after conduct of the fresh CBT is incorrect and cannot be accepted. A fresh CBT can be reconducted only after the earlier CBT is declared to be cancelled. Once the CBT is cancelled then the logical implication would be cancellation of the entire selection process itself since CBT is admittedly the first stage in the entire selection process. The cancellation of the panel, admittedly, cannot be done without obtaining the prior approval of the Railway board as per the Railway rules. Hence, the General Manager did not really have the authority to order reconduct of the CBT once the entire selection process was over, the panel of the selected candidates had been approved, and they had been promoted and posted. This decision of reconducting the CBT, amounting to the cancellation of the earlier CBT could have been taken only by the Competent authority i.e. the Railway Board after following the due process of law.
25. Keeping the above points in view, the Original applications Nos. 170/288/2020, 170/289/2020, 170/290/2020 and 170/291/2020 are allowed and the order dated 20.05.2020 issued by Respondent No.2 seeking to re- conduct the Computer Based Test for selection to the post of Assistant Personnel Officer in Level 8 of Pay Matrix in Personnel Department against 70% quota, is quashed.
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26. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)
MEMBER (A) MEMBER (J)
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