Central Administrative Tribunal - Allahabad
Mahendra Kumar Pal vs General Manager N C Rly on 8 July, 2024
(RESERVED ON 02.7.2024)
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH, ALLAHABAD
This the 08th day of July, 2024
ORIGINAL APPLICATION NO. 1469 OF 2016
HON'BLE MR. JUSTICE OM PRAKASH VII, MEMBER (J)
HON'BLE MR. MOHAN PYARE, MEMBER(A)
Mahendra Kumar Pal, A/A 26 years, S/o Sri Amar Nath Pal,
R/o Village Jarahi, Post Baraut, Police Station Handia, District
Allahabad.
......... Applicant
By Advocate: Sri Vinod Kumar
Versus
1. Union of India through General Manager, North Central
Railway, Allahabad.
2. Chairman, Recruitment Cell, North Central Railway,
Allahabad.
............ Respondents
By Advocate : Sri Vimal Kumar Rai
ORDER
Per Justice Om Prakash VII, Member-J By means of this Original Application (OA), the applicant has sought the following relief(s):-
"(a) To issue an order or direction in the suitable nature directing the respondents to declare the result of the applicant under the OBC category and then provide him an appointment against the vacancies which notified under the Employment Notice No. 01/2010 dated 19.12.2010 alongwith all consequential benefits within specified period, which may be fixed by this Hon‟ble Tribunal.
(b) To issue any order or direction to the respondents which the Hon‟ble Tribunal may deem fit and proper in the facts and circumstances of the case
(c) To award the cost of the application to the applicant."
2. The facts leading to this Original Application are that the Railway Recruitment Cell (RRC), North Central Railway Page 1 of 10 GIRISH SRIVASTAVA (NCR), Allahabad issued the notification no. 1/2010 dated 19.12.2010 notifying 4692 Group 'D' posts in different categories by inviting the applications from the eligible candidates. In response to this, the applicant, being fully eligible for appointment on the post, in question, had applied for the Group 'D' post. After scrutiny, the call letters were issued to the eligible candidates including the applicant. The applicant appeared in the written examination wherein he was declared successful. The applicant was, thereafter, called for Physical test in which too the applicant was declared successful. The medical examination was also conducted by the authorities concerned in which also the applicant was declared successful. Thereafter, the applicant was called for documents verification wherein the applicant was appeared and get verified his educational certificates. The final result was declared by the respondent no.2 declaring 4470 candidates to be successful out of total notified vacancies of 4692 and as such 161 posts were remained vacant. According to the O.A., the result of the applicant was not declared.
2.1 Being aggrieved, the applicant sought information under Right to Information Act 2005 through application dated 12.8.2014, to which the authority concerned has informed the applicant stating therein that RRC is going to declare the remaining 161 pending result of the candidates very shortly. However, the respondents did not declare the result of pending candidates. Being dissatisfied, the applicant knocked the door of this Tribunal by filing O.A. No. 1296 of 2015, which came to be disposed of vide judgment and order dated 24.9.2015 directing the respondents to decide the claim of the applicant within a period of three months. When the order of this Tribunal was not complied with within the stipulated period of time, then he invoked contempt jurisdiction of this Tribunal by filing Contempt Petition. On receipt of contempt notice, the respondents have rejected the claim of the applicant vide order dated 29.9.2016, which is under challenge in the instant O.A. Page 2 of 10 GIRISH SRIVASTAVA
3. Per-contra, the respondents have resisted the claim of the respondents by filing a detailed Counter Affidavit wherein they have stated that the RRC, NCR, Allahabad has advertised the notification vide EMP No. 01/2010 dated 19.12.2010 whereby 4692 Group 'D' post of different categories has been notified. Thereafter, call letters were issued to the eligible candidates including the applicant wherein the applicant has been declared successful. Having declared successful in written examination, the applicant was called to appear in Physical Efficiency Test (PET) in which too the applicant was declared successful. The applicant was, thereafter, called for documents verification. During documents verification, it was observed that on OMR sheet bubble no. 82, 94 and 99 were erased by the applicant, which was contrary to the instructions provided in OMR of Serial number 5, 10, and 13. With the result the competent authority after taking into account the above mentioned omissions under existing rules as indicated in para 12/4 rejected his candidature for appointment on Group 'D' post and result of successful candidates were declared. Being aggrieved, the applicant filed the instant O.A. challenging the order dated 29.9.2016 by means of which his claim has been rejected. Lastly, the respondents have stated that the O.A. has no merit and the same is liable to be dismissed with costs in favour of the respondents.
4. The applicant has filed Rejoinder Affidavit to the Counter Affidavit as filed by the respondents refuting the contentions made by the respondents in their Counter Affidavit while reiterating the averments made in the O.A. Alongwith the Rejoinder Affidavit, the applicant has annexed the following decisions in support of his claim.
(i) Vipin Kumar Tiwari & Another Vs. Union of India & Others decided by Hon'ble Allahabad High Court in Writ-A No. 24535 of 2017 on 30.4.2019 Page 3 of 10 GIRISH SRIVASTAVA
(ii) Kumkum Vs. Union of India & Others decided by Hon'ble Allahabad High Court in Writ-A No. 54845 of 2014 on 3.11.2020.
(iii) Rajendra Singh Vs. Union of India & Others decided by CAT, Allahabad Bench in O.A. No. 190 of 2014 on 12.2.2021.
5. Supplementary Counter Affidavit has also been filed by the respondents enclosing therewith the copy of OMR sheet of the applicant.
6. We have heard the learned counsel for the parties at length and also perused the pleadings available on record.
7. Submission of learned counsel appearing on behalf of the applicant is that the applicant had applied the post, in question, which was advertised through Employment Notice No. 1/2010 wherein he was permitted to appear in the written examination. Since the applicant was found successful in the written examination on the basis of evaluation of OMR sheet, he was directed to appear for PET. Thereafter, he was directed to appear for documents verification. Since the result of the applicant was not declared by the respondents, the applicant approached before this Tribunal through O.A. No. 1296 of 2015, which was disposed of vide judgment and order dated 24.9.2015 directing the respondents to consider and decide the pending representation of the applicant. It was further argued that the respondents did not decide the representation of the applicant in accordance with the directions given by this Tribunal, thereafter the applicant filed Contempt petition before this Tribunal and on receipt of contempt notice, the respondents decided the representation of the applicant declaring the result of the applicant stating therein that he has tempered the OMR sheet by erasing wrong answers of question nos. 82, 94 and 99 and, therefore, his candidature has been cancelled. Referring to the aforesaid facts, learned counsel appearing on behalf of the applicant further argued that had the applicant tempered the OMR sheet in giving the answers, his OMR sheet would not have been evaluated through the computer. It is further argued Page 4 of 10 GIRISH SRIVASTAVA that the plea taken by the respondents regarding cancellation of candidature of the applicant is wholly arbitrary, illegal and without any basis. It is also argued that the applicant has not tempered OMR sheet as it was in the custody of the respondents and the temper, if any, would have been done by the respondents themselves. In support of his contention, learned counsel for the applicant further argued that the arguments advanced by the applicant finds support with the fact that the OMR sheet was evaluated through the computer. It is also argued that at-most the multiple answers of particular question had been given by the applicant, then 1/3 marks should have been deducted to the particular question. In support of his argument, learned counsel for the applicant has cited the above decisions including the decision of Dharm Veer Singh Vs. Union of India & Others decided by Allahabad Bench of Tribunal in O.A. No. 332 of 2015 decided on 19.9.2018. Learned counsel for the applicant further argued that the order passed in the aforesaid O.A. was challenged before Hon'ble High Court through Writ-A No. 25675 of 2018, which was dismissed vide judgment and order dated 15.7.2021. In view of the aforesaid submissions, learned counsel for the applicant states that the case, in hand, is squarely covered with the cited decisions. Thus, the respondents be directed to declare the result of the applicant on the basis of instruction no.11. It is next argued that once the OMR sheet has been evaluated, then the respondents were not authorized to evaluate again the OMR sheet manually thereafter. It is, therefore, prayed that the impugned order dated 29.9.2016 be quashed and O.A. be allowed.
8. On the other hand, learned counsel appearing on behalf of the respondents argued that since the applicant has erased the multiple choices of answers given in question nos. 82, 94 and 99, therefore, the respondents have rightly cancelled the candidature of the applicant and have not declared the result of the applicant. To substantiate his argument, learned counsel for Page 5 of 10 GIRISH SRIVASTAVA the respondents has referred to the instructions contained in the OMR sheet no.5, 10 and 13 and further argued that since eraser has been done by the applicant while giving the answers of question nos. 82, 94 and 99 and as such on the basis of instruction no.13 contained in OMR sheet, the OMR sheet of the applicant will not be evaluated. Learned counsel appearing for the respondents also referred to the photocopy of the OMR sheet annexed with the Counter Affidavit as well as original OMR sheet produced before the Tribunal during the course of hearing and further argued that there is no illegality or infirmity in the impugned order and the O.A. lacks merit and the same is liable to be dismissed.
9. We have considered the rival submissions of learned counsel for the parties and also perused the original OMR sheet as produced by the respondents' counsel
10. In the case of Dharm Veer Singh (supra), this Tribunal has held as under:-
"The OMR sheet was produced in the Tribunal and the copy of same has been placed on record. The OMR sheet of applicant shows that in question No. 148, the applicant has marked two options in the given answer. Condition No. 10 of the instructions issued by respondents are very clear that 1/3rd of the allotted mark will be deducted for every wrong answer/multiple answer. This is the procedure which should have been followed by the respondents rather than cancelling the candidature of applicant.
5. In view of the facts and circumstances of the case, the order dated 8.7.2014 (Annexure No. 5) passed by respondents is set aside to the extent of disallowing the candidature of applicant for tempering with the OMR sheet. Respondents are directed to consider the candidature of applicant for appointment to Group „D‟ post in accordance with rules and regulations within a period of one month from the date of receipt of this order. O.A. is accordingly allowed. No order as to costs."
11. In the case of Union of India & Others Vs. Dharm Veer Singh, the Hon'ble Allahabad High Court has held as under:-
"A perusal of the OMR sheet at page no. '101' indicates that the respondent candidate had given two answers to question no. '148', thus, the options B and D had been circled by the candidate. In the said scenario, only option left to the petitioners was to cancel the said question i.e. not to allot any marks for the said answer and Page 6 of 10 GIRISH SRIVASTAVA further to deduct 1/3rd mark for giving multiple answers, as per the Clause-'10' of the instructions noted above. We may also note that the original record was also produced before the Tribunal and on perusal thereof, the Tribunal had noted condition no. '10' of the instructions and opined that it was not a case of tampering of the OMR sheet.
The opinion of the Tribunal to set aside the decision of the petitioners rejecting the candidature of the applicant/respondent on the ground of tempering with the OMR sheet, is found justified inasmuch as, there is no evidence of tempering of OMR sheet by the candidate. The multiple answers given by the candidate at the time of filling up of OMR sheet during the course of examination will not come within the meaning of 'tampering' as asserted by the Counsel for the petitioners. No infirmity can be found in the order of the Tribunal.
The writ petition is, accordingly, dismissed."
12. Hon'ble Allahabad High Court in the case of Vipin Kumar Tiwari & Another (supra) has held as under:-
"As noted above, Sri Rai learned counsel appearing for the respondents does not dispute the marks which were awarded to the petitioners as well as the fact that they successfully completed all the steps of the recruitment process. Their names have admittedly been excluded from the final selection list only consequent to the manual examination of OMR sheets. Before this Court and as noted above, it is admitted to the respondents that both the petitioners have obtained marks higher than the last selected candidate included in the final select list as prepared by the respondents. Additionally the Court notes that the respondents while dealing with the case of another candidate namely Shreeram Meena have proceeded to hold that the incorrect mentioning of roll numbers on the OMR sheet is a 'minor technical error' and in the absence of any deliberate action on the part of a candidate such discrepancies were liable to be ignored. Dealing with the case of Shreeram Meena the respondents have observed thus:-
"From the available record, it is observed that all entries have been made by the petitioner in OMR sheet in his own handwriting correctly. Though he has written the roll number numerically correct as 2141305179 but during shading of bubble he mistakenly shaded '0' in place of '9' which shows that the intention of the petitioner is not mala-fide. The candidature of the petitioner was rejected on the ground of minor technical error which he had not done deliberately. Hon'ble Justice of High Court, Allahabad also observered, the mistake of the petitioner as 'minor technical error'. Since he has written his roll number correctly in numerical form, therefore his case deserves to be considered; otherwise grave in- justice will be committed towards him, if his candidature is rejected on the basis of wrong shadding of one numerical, which is minor in nature. Hence in the light of the above observations his appointment in RPF is considered."
The case of the petitioners stands on identical and equal footing. In view of the above, this Court finds itself unable to sustain the orders impugned.
The writ petition is accordingly allowed. The orders dated 29 December 2016 and 20 February 2017 are hereby quashed. The Page 7 of 10 GIRISH SRIVASTAVA matter shall in consequence stand remitted to the Competent Authority of the respondents, who according to Sri Rai is the respondent No.2 herein. The second respondent shall now proceed to finalise the candidature of the petitioners in light of the observations made hereinabove."
13. In another case namely in the case of Kumkum (supra) the Hon'ble High Court has held as under:-
"It is undisputed that when the result was declared the petitioner was shown to be a selected/qualified candidate. Her candidature, however, has been ignored only because she is denied marks of question no.58. It is not in issue that petitioner has marked 'B' which is the correct answer of question no.58. Respondents have not disputed that 'B' is the correct answer. It is only on account of first impression caused against the option Neutral Citation No. - 2020:AHC:94824 'C' that the respondents infer that the petitioner had earlier marked 'C' as the right answer. The candidates were supposed to attempt one of the correct option in the OMR sheet. Such answer were to be scanned by computers. It is admitted that the computer scanned the petitioner's OMR sheet and awarded marks against question no.58 to the petitioner. At the time of scanning of OMR sheet by the computer the answer against question no.58 was not ignored for the reason that petitioner had earlier attempted to give a different answer against question no.58. Petitioner's result was also declared and she was found selected. There was no occasion for the respondents to manually check the answers later, so as to disqualify the petitioner. There is no express contemplation in the answersheet or the examination scheme which puts an embargo upon a candidate from correcting her answer. Clause 9, which has been relied upon, of the instructions merely states that once an answer is given by the darkening circle any subsequent change would not be permissible. This contemplation appears to have been made only because in the event more than one answer is darkened the computer itself would exclude that question. In the facts of the present case this was not done and petitioner was awarded marks against question no.58. In the absence of any stipulation in the instructions the respondents would not be justified in manually correcting the answersheet once again, so as to deny marks against question no.58 to the petitioner. This would be particularly so, once the petitioner has already been declared selected and there was no stipulation that the copies of selected candidates would again be re-examined manually. In that view of the matter this writ petition succeeds and is allowed. Respondents are directed to consider petitioner's claim for appointment by awarding her marks for question no.58 also on the basis of earlier scanning of OMR sheets. The requisite action would be taken within a period of three months from the date of presentation of a copy of this order. Petitioner, however, will not be entitled to any salary etc. for the previous period and would be placed at the bottom of the seniority of the recruitment. The concerned Authority/Official shall verify the authenticity of computerized copy of this order from the official website of High Court Allahabad and shall act accordingly without waiting for submission of the certified copy of this order."
14. In the case, in hand, the applicant appeared in written examination. He was declared successful, then only he was Page 8 of 10 GIRISH SRIVASTAVA permitted to appear in PET. It is also evident from the record that by that time no such plea regarding erasing of bubbled answer was raised by the respondents. Had the applicant erased the bubbled answer, OMR sheet would not have been evaluated. Plea of erasing of bubbled answer was taken for the first time in the Contempt Petition. This fact was not disclosed in the information given under RTI. The plea of the applicant that he has not used eraser in question nos. 82, 94 and 99 is acceptable in the facts and circumstances of the case. It is also pertinent to mention here that the respondents illegally and without any authority of law after evaluation of OMR sheet through computer, have re-evaluated the OMR sheet. If such type of act would have been done on the part of the applicant, this fact would have come in the picture at the time of evaluation of OMR sheet through computer itself. It is presumed that all the instructions contained in OMR sheet would have been feeded in the Computer before evaluation of OMR sheet. Thus, it is clear that no eraser has been used by the applicant, while giving the answer of question nos. 82, 94 and
99. The action of the respondents in re-evaluating the OMR sheet manually after evaluation of OMR sheet through computer, is illegal. The candidature of the applicant has been illegally and arbitrarily cancelled by the respondents. At the most, the answer of question nos. 82, 94 and 99 shall be dealt with according to the instruction no.11 of the OMR sheet and nothing more. It appears that tempering in the OMR sheet has been done after evaluation of OMR sheet through computer.
15. Keeping in mind the various pronouncements of Hon'ble High Court as well this Tribunal on the issue involved in this O.A., we are of the considered opinion that the case, in hand, stands on identical and equal footing and there is no room to deviate with another view which has already been settled.
16. In view of the discussions made hereinabove and also keeping in mind the ratio laid down by the Hon'ble High Court in the cases, referred to hereinabove, the instant O.A. is liable to Page 9 of 10 GIRISH SRIVASTAVA be allowed and is allowed accordingly. Impugned order dated 29.9.2016 is set-aside. The respondents are directed to declare the result of the applicant and if he is found otherwise eligible to be considered for appointment on Group 'D' post, he be appointed in accordance with rules on the subject. It is clarified that if no vacancy is made available for appointment of the applicant, the supernumerary port be created to accommodate the applicant. The aforesaid drill shall be completed within a period of four months from the date of receipt of certified copy of this order. Parties are directed to bear their own costs.
17. The original records of OMR sheet as produced by the learned counsel for the respondents be returned immediately to the respondents' counsel after delivery of the judgment.
18. All the associated MAs stand disposed of.
(Mohan Pyare) (Justice Om Prakash VII)
Member-A Member-J
Girish/-
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