Central Administrative Tribunal - Allahabad
Santosh Kumar Saxena vs Union Of India Through President on 20 May, 2011
RESERVED CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD. (THIS THE 20TH DAY OF MAY, 2011) Honble Dr. K.B.S. Rajan, Member (J) Honble Mr. D.C. Lakha, Member (A) Original Application No. 1616 of 2004 Santosh Kumar Saxena, S/o Late Sri R.S. Saxena, Assistant Administrative Officer, Divisional of Biological Products, Indian Veterinary Research Institute Izatnagar, Bareilly, R/o 6, Swarup Nagar, Chahabai, Bareilly. . . . Applicant By Adv: Dr. G.S.D. Mishra V E R S U S 1. Union of India through President, Indian Council of Agriculture Research Krishi Bhawan, New Delhi. 2. Secretary, Indian Council of Agriculture Research Krishi Bhawan, New Delhi. 3. Director, Indian Veterinary Research Institute Izzatnagar, Bareilly. 4. Assistant Administrative Officer, Establishment Section-1, Administrative Block Indian Veterinary Institute Izzatnagar, Bareilly UP. . . . Respondents By Adv: Sri N.P. Singh Alongwith Original Application No. 1584 of 2004. P.S. Jina, S/o late Sri H.S. Jina, Assistant Administrative Officer, Internal Veterinary Research Institute, Izzatnagar Bareilly, R/o A-5 Udaipur Khas, Indian Veterinary Research Institute Road, Izzatnagar, Bareilly. . . . Applicant By Adv: Dr. G.S.D. Mishra V E R S U S 1. Union of India through President, Indian Council of Agriculture Research Krishi Bhawan, New Delhi. 2. Secretary, Indian Council of Agriculture Research Krishi Bhawan, New Delhi. 3. Director, Indian Veterinary Research Institute Izzatnagar, Bareilly. 4. Assistant Administrative Officer, Establishment Section-1, Administrative Block Indian Veterinary Institute Izzatnagar, Bareilly UP. . . . Respondents By Adv: Sri N.P. Singh O R D E R
By Honble Dr. K.B.S. Rajan, Member (J) As the above two OAs have identical subject matters this common order will dispose of the two OAs. For reference purposes OA 1616 of 2004 is taken as a pilot case. Two applicants in this OA earlier filed OA No. 315 of 2003 with regard to reversion from Assistant Administrative Officer (AAO) to Assistant. The said order is at Annexure A-8 to the OA.
2. The facts of the case as stated in para 2 thereof would serve the limited purpose of having the subject mater and the same is as under:-
2. The facts, in short, giving rise to this application are that the Departmental Competitive Examination for selection of the candidate for the post of Assistant Administrative Officer in scale of ` 6500-10500 in Indian Veterinary Research Institute, Izatnagar, Bareilly was held in pursuance of the notification dated 11.03.2002 (Annexure 3). The schedule for holding written examination and other tests were also disclosed. The examinations were actually held on 02.05.2002 to 10.05.2002. The result of selection was declared on 22.7.2002 vide Annexure 5. The applicant nos. 1 and 2 were selected for the post. It is the case of the applicants that they were allowed to join on 22.7.2002 itself in afternoon and since then they were continuing to work on the posts. The respondents, however, by impugned order dated 19.2.2003 cancelled the entire examination alleging that it suffered from serious irregularities and passed the order of reversion against the applicants. The learned counsel for the applicants has submitted that as the selection was completed and applicants were selected for the post and they actually joined their duties, their rights could not be affected without giving opportunity of hearing and impugned order is liable to be quashed, having been passed in violation of principle of natural justice. It is also submitted that the applicants had served on the post for about more than 6 months.
3. Sri J.N. Tiwari counsel for the respondents, on the other hand submittd that the vigilance Enquiry was conducted. Serious irregularities were noticed in conducting the examination hence the authority concerned scrapped the whole examination. As examination itself was cancelled, it was not necessary to given the opportunity of hearing to the applicant. The learned counsel for the respondents has placed reliance on the judgment of Honble Supreme Court in case of Union of India Vs. O Chakradhar (2002) 3 SCC 146. It is submitted that the impugned order does not suffer from any error of law.
3. The aforesaid OA was allowed and reversion order dated 19.02.2003 was quashed but liberty was given to the respondents to pass a fresh order in accordance with law after giving opportunity to the applicant.
4. In the wake of the above order, the respondents had reinstated the applicant vide Annexure A-9. A show-cause notice was also issued vide Annexure A-10. The applicants expressed their respective stands (e.g. the applicant Shri Saxena had filed his representation dated 03.06.2003 vide Annexure A-11). After considering explanation by the applicants, the respondents have passed the impugned order dated 27.11.2004 reverting the applicants to the post of Assistant (Annexure A-1 refers). It is against this order the applicants have approached the Tribunal with the following prayers:-
i. That the Honble may kindly be pleased to quash the order dated 27.11.2004 passed by the respondent no. 3.
ii. That the Honble Tribunal may kindly be pleased to direct the respondents to not create any hindrance of peaceful working of the applicant as Asstt. Administrative Officer and pay his salary month to month when it become due with all consequential benefits.
5. Respondents have contested the OA. They had raised certain preliminary objections as to the non-joinder of the necessary parties namely Union of India. Likewise according to them the Director General ICAR is not necessary party as Secretary can sue and be sued as per the relevant rules and regulations. With regard to merit of the matter, the respondents have stated that after the applicants were promoted to the post of AAO, on receipt of certain complaints regarding irregularities in conducting the examination especially evaluation of Answer Sheets, the matter was referred to CVC and on the complaint being found correct the applicants have been reverted. However, on the basis of Courts order they were reinstated and show cause notice was issued. On receipt of their explanation the same was considered and it was decided by the Competent Authority to revert the applicants as the irregularities found were substantiated. The examination process was got vitiated on account of the following:-
i.
Marks once awarded were changed by the evaluator by way of increase.
ii.
Marks once awarded were changed by the Evaluator by way of decrease.
iii.
Marks were awarded to wrong answers.
iv.
Final marks put up on the top sheet of the answer book were more than that what was actually awarded against the answers of the question.
v.
Evaluation of certain answer was not made at all.
vi.
Deviation was made from the scheme & syllabus of the examination by setting subjective type.
vii.
Some questions were set from out side syllabus.
viii.
Marks allotted to various questions were not indicated in a question paper and the evaluator himself decided the allotment of marks to different questions.
ix.
ACRS was not recorded/evaluated properly
6. The material called for by the applicants were all made available to them and as regard evaluation of ACR they were informed that the same is at the discretion of the DPC.
7. The applicants have filed their rejoinder reiterating their stand as in the OA. As regards the irregularities, the applicants have stated that the respondents have issued order dated 19.02.2003 in compliance of order dated 18.02.2003 issued by ICAR, whereas the said order was not available to the applicants. Thus the reason for reversion was not known to the applicants. As regards the opportunity of hearing neither at the time of holding the promotion as erroneous nor at the time of scrapping the examination, were the applicants given any opportunity.
8. At the time of hearing learned counsel for the applicant was not present and permission was granted to file written submissions. Accordingly the applicants counsel had filed written submissions after narrating the sequence of events right from appointment upto the disposal of OA No. 315 of 2003. Learned counsel for the applicant has explained important factual aspects as under:-
i. As regards increase and decrease in the marks, the same comes under the jurisdiction of evaluator ii. Whether the evaluation was right or wrong has to be seen by rechecking all the answer sheets.
iii. With regard to awarding marks to wrong answer, here again is all depends upon the evaluator. It is not known whether evaluator knowingly awarded marks or it was human error.
iv. Variation in totaling of marks inside and out side the answer sheet is human error and the totaling mistake can be easily corrected.
v. Instead of cancellation the entire examination the papers could have been reevaluated.
vi. As to the different set of question papers (subjective/objective type) no one had complained at the time of examination or immediately thereafter. Similarly, question from out of syllabus was also not projected as having caused prejudice.
vii. It was not difficult to undertake reevaluation of papers since only 12 candidates appeared in the said examination. The officers who were incharge of conducting the examination and who were proceeded against were all exonerated by a simple warning. Thus the applicants became the victim.
viii. Documents called for were not given to the applicants.
9. Learned counsel for the respondents also submitted his written arguments. In nutshell the same was as under:-
i. Preliminary objection relating to non-joinder and misjoinder of necessary parties.
ii. Non availing of remedies available in the administrative arena.
iii. Rules of examination provide for 500 marks in the written examination and 150 marks for evaluation of record of service.
iv. The matter relating to certain irregularities in the conducting the examination was referred to CVC and it is only, thereafter, that reversion took place v. The reasons as to why the applicants promotion should not be reviewed and they be reverted have been given show cause notice.
vi. Copies of all the relevant documents as called for have been given to the applicants.
vii. There is no arbitrariness or malafide action on the part of the respondents. The reversion order is legal and valid and so the decision to hold the re-examination is correct.
viii. Principles of natural justice have been fully complied with.
10. Written arguments have been considered and the pleadings were gone through. The impugned reversion order indicates the so called irregularities as under:-
i.
Marks once awarded were changed by the evaluator by way of increase.
ii.
Marks once awarded were changed by the Evaluator by way of decrease.
iii.
Marks were awarded to wrong answers.
iv.
Final marks put up on the top sheet of the answer book were more than that what was actually awarded against the answers of the question.
v.
Evaluation of certain answer was not made to all.
vi.
Deviation was made from the scheme & syllabus of the examination by setting subjective type question in a paper which should have been of subjective type.
vii.
Some questions were set from out side syllabus.
viii.
Marks allotted to various questions were not indicated in a question paper and the evaluator himself decided the allotment of marks to different questions.
ix.
ACRs was not recorded/evaluated properly
11. Except Sl. No. 6 namely deviations from the scheme and syllabus of examination none of the other reasons given could be such that they could not be rectified by re-evaluation. In so far as variation in the syllabus is concerned, if the question papers are substantially out of syllabus or of different patterns then the compliant would have come from all the 12 candidates who have participated in the examination. It appears that the respondents were not dissatisfied with the manner of conducting the examination and accordingly promoted the applicants initially but when one compliant had come, they had forwarded the same to CVC and perhaps on its recommendations the examination seems to have been cancelled. As regards the cancellation of examination the following decision of Honble Supreme Court hold the field:-
(a) Union of India v. O. Chakradhar,(2002) 3 SCC 146 , wherin, the Apex Court has held as under;-
8. In our view the nature and the extent of illegalities and irregularities committed in conducting a selection will have to be scrutinized in each case so as to come to a conclusion about future course of action to be adopted in the matter. If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, in such cases it will neither be possible nor necessary to issue individual show-cause notices to each selectee. The only way out would be to cancel the whole selection. Motive behind the irregularities committed also has its relevance." (Emphasis supplied) The Apex Court in the case of Union of India v. Rajesh P.U.,(2003) 7 SCC 285 , held as under:-
.....in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an 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 the other 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 the other reasons. Applying a unilaterally rigid and arbitrarystandard 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-by to contextual considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably 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.
(b) All India SC & ST Employees' Assn. v. A. Arthur Jeen, (2001) 6 SCC 380, The selected candidates who were seriously affected had every right to challenge the decision of the Tribunal on all the grounds available to them.
12. When the instant OA is considered keeping in view the above decisions, the discrepancies in the examination conducted could have easily been avoided by the simple evaluation.
13. One aspect has also to be kept in mind at this juncture. The applicants are in their mid fifties. To subject them for reexamination at this age may not be proper. Age is one of the factors to be kept in view in the matters of competitive examinations. It would have been a different matter if there has been a concrete reason for cancellation of entire examination such as mass copying and the like. Such being not the case here, balance of convenience and in the interest of justice are infavour of the examination already held being kept alive and the answer papers are properly evaluated and the result on the basis of the same be notified and promotion made. This drill might result even in the applicants not being found in the merit list in case the performance of others happens to be better than that of the applicants. The reevaluation will remove all the deficiencies and if any of the candidates who had appeared in the examination were the unintended or undeserving beneficiaries of such deficiencies in the evaluation, on rectification of the errors, they might be brought down in the merit list.
15. In view of the above both the OAs are allowed to the following extents:-
a. The impugned order dated 27.11.2004 (in OA both the OAs are hereby quashed and set aside. The respondents are directed to reevaluate the papers removing all the deficiencies as contained in Para 1 to 7 of the show cause notice dated 17.05.2003 (Annexure A-10) and where necessary, for out of syllabus portion moderation marks may be allotted uniformly to all the candidates on the basis of reevaluation of answer sheets.
b. The revised merit list be formed and promotions to the extant of such vacancies notified be made. In case applicants do not figure in the merit list then they shall be reverted, if they are still working on the said post of AAO (as stated in para 9 of the written arguments submitted by the learned counsel for the respondents).
c. The above order may be complied with within a period of three months from the date of receipt of copy of this order.
No cost.
Member (A) Member (J)
/pc/
??
??
??
??
Page 5 of 10