Central Administrative Tribunal - Gauhati
Majaffar Hussain vs D/O Post on 13 November, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL GUWAHATI BENCH Original Application No. 040/00075/201 7 Date of Decision; 06+ 05<2°!49 ; THE HON'BLE MRS. MANJULA DAS, JUDICIAL MEMBER THE HON'BLE MR. N. NEIHSIAL, ADMINISTRATIVE MEMBER Majaffar Hussain Son of Late Zahan Ahmed Resident of Vill. Dimu No. 2 P.O. --Khudradimy, P.S. -- Rangia Dist. -Kamrup, Assam. Pin -- 781382 weseuese Applicant By Advocates: Mr. U.K. Nair, Sr. Adv. Mr, A. Cheiry Mr. M.P. Sharma' Mr. R. Islam & Ms. N. Shyamall -Versus- 1. The union of India, represented by The Secretary to the Govt. of India Ministry of Communications & Information . 7 Technology, Department of Posts, o Dak Bhawan, Sansad Marg New Delhi- 110001. 3 2. The Chief Post Master General ; Department of Posts, Assam Circle E: Panbazar, Guwahati --- 781001. Le ne ee eal The Director Postal Services (HQ) Office of the Chief Postmaster General Assam Circle, Guwahati - 781001. severe Respondents By Advocates: Mr. M. Bhatfacharjee, Addl, CGSC Mr. D. Das Roy, Mrs. P. Rai Baruch & Mr. BD. N. Sharma « 20! Date of hearing: 29.01.2019 Date of order, 98+ 0S 7 ORDER MANJULA DAS, JUDICIAL MEMBER:
By this O.A. applicant makes ihe following main prayer:
"8.1. To sei aside and quash the combined merit list of GDS officials appeared in the Limited Departmental. Competiiive Examination held on 30.10.2016 for promotion io the cadre of Postman for the vacancies of the year 2016-17 (Annexure- 1} in so far it concerns the Guwanhaii Division.
8.2 To sei aside and quash fhe promotions effecied in case of the privaie respondents fo the post of Postman in so far it concerns the Guwahaii Division.
8.3 To sef aside and quash the impugned letter bearing no. Staff/Postman Exam/201é dated 12.01.2017 (Annexure-7) issued by the Assistant Director (Staff}], Post Master General, Assam Circle, Guwahati.
8.4 To direct the respondent authorities to prepare a correct Model Answer Key and ihereafier to re-evaluate the answer scripts of all mT candidates pertaining Guwahati Division basing on ithe correct Answer key and thereafter to pertaining Guwahati Division basing on the correct Answer key and fhereafier to prepare a fresh merit list for promotion to the cadre of Postman/Mail Guard"
2. Brief facts narrated by the applicant are that the applicant was appointed as E & A, at Soneswar S.O. in account with qauhati University Head Office on re-deployment basis vide order
0. B2/Staff/2003-04 dated 27.10.2003 by the Divisional Inspector (Post], Guwahati East Sub-Division and since then he has been orking in the said post Till date.
In pursuance of circular issued by Postal Departmen? for olding Limited Departmental Compeiitive Examination (in short LDC} for promotion fo the cadre of Postman/Mail Guard for the year 2016-2017, the applicant submitied his application on 05.10.2016 fo appear in the said examination. The applicant appeared in the said examination held on 30.10.2016.
4, The result of the said examination was declared on 07.11.2016 under the head of "Combined Merit List of GDS officials appeared in the LDCE held on 30.10.2016 for promoiton to the cadre of Postman for the vacancies year 2016-2017."
5. In the above said result list the name of the applicant appeared against SI. No. 12 as OC candidates where the total 75 marks scored by the applicant. Thereafter, the final merit list was prepared on 04.11.2016 but the name of the applicant has not been included in the list under Guwahati Division as because the last candidate under OC category who got selection had scored 78 while the applicant could only score 75.
é. The applicant sought following information under RTI Act, 2005 on 07.11.2014:-
1) OMR answer script (Roll No. GHY/PM/057).
2) Certiified copy of answer key.
3} Vacancy position of Guwahaii Division (Caste wise}.
4) Certified copy of merit list.
The above information has been received by the applicant on 23.12.2016. Affer going through the answer script as well as Model Answer Key of LDCE to the cadre of Posiman/Mail Guard for the year 2016 held on 30.10.2016 and the question paper of the said examination, the applicant found that the answer keys for question nos. 4, 7, 16, 22, 68 & 83 were wrong and the same was further ascertained by him from various reliable sources. According to the applicant though he had answered question numbers 4, 7, 16, 22, 68 & 83 correctly but due to erroneous reflection made in the Model Answer Key no marks were awarded fo the applicant by the examiner for those questions. Had the applicant been given marks against the above mentioned questions for which he had given correct answers he would have got selection for the post of Postman under Guwahati Division.
7 The applicant stated that he was eligible and qualified in the said selection but was deprived of his promotion only on account of the erroneous answer key. In regards to that, the pplicant on 30.12.2016 submitied a representation to the Chief Post aster General (staff), Assam Circle, Meghdoot Bhawan with a prayer for reviewing his answer script of Assam Circle Postman/Maiil Guard examination held on 30.10.2016 on the basis of correct answer key. The applicant also clearly highlighted the question for which wrong answer have been inserted in the Model answer key.
8. The official respondents by filing written statement submitted that the respondents follow the department Rule 15 of Postal Manual Volume -- IV where re-evaluation of answer scripts in any case or under any circumstance is not permissible. Moreover, the applicant has participated in the recruitment process without any objection in the examination hall about the answer key.
9, The respondenis relied a decision of Chandra Prakash Tiwari vs Shakuntala Shukla, 2002 (4) SCC 127, the Hon'ble Apex Court as hereunder:
"The law seems fo be well settled that in the eveni a candidate appears at the interview and participates therein, only because the result of the interview ts not 'palatable' to him, he cannot Sr 6 turn round and subsequently contend that ihe process of interview was unfair or there was some lacuna in the process."
10. The private respondents vide their written statement submitied that the answer keys were prepared by the depariment of Post and the correctness thereot would be decided by the authority. However, if the applicant is eligible for Additional 5 marks, all the respondents also get the additional 5 marks as if reveals from the answer sheet of ihe deponents. Hence, in case of revaluation the result will remain same except respondent No. 5 who may lose 3 marks.
11. Heard Mr. U. K. Nair, Sr. Adv. Assisted by Ms. N. Shyamall, learned counsel for the applicant and Mrs. D. D. Roy, learned counsel for the respondenis.
12. - Admittedly, the applicani who is an unreserved candidate appeared in the LDC examination held on 30.10.2016 for the promotion to the post of Postman/Mail Guard and citer qualifying, the applicant could not found his place in fhe combined merit list due to scoring lesser mark i.e. 75 where last qualified oc candidates scored 78, As some doubt were raised as regards the marks awarded to him, the applicant made an application to the information Officer under RT! Act on 07.11.2016, where he received answer script as well as Model answer sheet of LDCE and found that 22, no 7 '68 & 83 but due to erroneous reflection in the Model answer key marks were given to him by the examiner which resulted in awarding of lesser marks.
ant Pos
13. Mr. U. K. Nair, Sr. Adv. has drawn our attention to the nexure -- 3 i.e. the question paper for the promotion of tman/Mail guard which are as follows:
"GQ. No. 4. Which city is called the 'City of Lakes'? {A} Joypur (B) Udaipur (C) Hoogly (D} Koch.
Q.No.7. Whatis the total area covered by Indian Sub- continent? , (A} 4, 32, 412 sq. km (approx,).
(B} 32, 87, 263 sq. km (approx.).
(C) 31, 29, 721 sq. km (approx.}.
(D} 42, 24, 302 sq. km (approx.}.
Q. No. 16. Which nutrient regulates physiological process? {A} Carbohydrate {B} Starch {C} Vitamin {D) Protein.
Q. No. 22. Select related letter from given alternative, letters are CDEF: UVWX:; IJKL: g {A} ABCD (B} NOPQ (C} MNOP.
-Q. No. 68. The Postman smooihly.
{A} Caused {B} Effected {C} Gave (D) Performed.
delivery of 100 letters Tn Te anand wager oe eg a aa s Ly raining See a pie aa ht ache a eee ry were a r @. No. 83. Katha Chahaki (Ka) Kebol Kathat he pargat (Kha) Katha koi bhal pua (Ga) Besi koi katha kua (Gha} Katha koi chahaki hua."
14, Mr. Nair, further drawn our attention to the answer sheet of LDCE to the cadre of Postman/Mail Guard held on 30.10.2016 i.e. annexure - 4(A) where answers of the related questions as hereunder:
"PART-A (General Knowledge) Question No. 4 (C) Question No. 7 (B} Question No.16-(C)} Question No, 22{C) PART-Cfi) (English) Question No. 68 (B) PART-C(ii) (Regional Lanquage -- Assamese) Question No. 83 {A}(Ka)"
15. The applicant immediately made a representation on 30.12.2016 before the Chief Post Master General Le. respondent No. 2 with a prayer for review of the answer script which has been rejected vide impugned letter dated 12.01.2017 intimating that as per item 15 of Appendix 37 of Postal Manual Volume -- IV, revaluation of answer scripts is not permissible in any case or under 14, res He ré 173 Pa foy re-evaluation of the answer scripts.
"
Apparently, there is an incorrect model answer key in regards to the questions as raised by applicant where all the spondenis failed fo rebut. Mr. Nair, Sr. Adv. relied a decision of on'ble Apex court Rajesh Kumar & others Vs state of Bihar & others ported on 2013 (4) SCC 690 and observed as hereunder:
"Given the nature of the defect in the answer key and most natural and logical way of correcting the evaluation of the script was to correct the key and get the answer script re-evaluation on the basis thereof"
We further observed that "the re-evaluation process may additionally benefit those who have lost the hope of an appointment on the basis of -a wrong key applied for evaluating the answer scripts. Such of those candidates as may be ultimately found to be entitled fo issue of appoinimeni letters on the basis of their merit shall benefit by such re-evaluation and shall pick up their appoinimenis on that basis according to their inter se position on the merit list."
_ In the said case Hon'ble High Court of Judicature at tna allowed the appeal and directed as hereunder:
"I. answer scripts of candidates appearing in 'A' series of competition examination held pursuant to advertisement No. 1406 of 2006 shall be got re-evaluated on the basis of a correct key prepared on the basis of the report of Dr. (Prof.) CN Sinherand Prof. KSP Singh and the observations made in the body of this order and a fresh merit list drawn up on that basis.
2. Candidaies who figure in the merit list but have not been appointed shall be offered a a al 2 14 --
appointmenis in their favour. Such candidates would earn their seniority from the date the appellants were first appointed in accordance with their merit position but without any back wages or other benefit whatsoever.
3. In case writ petitioners-respondent nos. 6 to 18 also figure in the merit list after re-evaluation of the answer scripts, their appointments shall relaie back io the date when the appellants were first appoinied with coniinuity of service to them for purpose of seniority but without any back wages or other incidental benefits.
4. Such of the appellants as do not make the grade after re-evaluation shall not be ousted from service, but shall figure at the bottom of the list of selected candidates based on the first selection in terms of advertisement No. 1406 of 2006 and the second selection held pursuant to advertisement No. 1906 of 2006.
18. The sole ground has been said by the Official respondent that there is no such provision for re-evaluation of answer script.
19. The decision cited by the respondents Chandra Prakash Tiwari Is not applicable in the present case as much as the instant case relates to the serious issue of erroneous answer to the Model question in the examination which was not denied by the
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respondent's side. .
20. _ After taking into entire conspectus of the case and as per ratio laid down by Hon'ble Apex Court in Rajesh Kumar & others supra we direct the competent authority to correct the Model Answer Key fo ihe afore said Model question and thereafter re-
pertainin authorit Postma Departr evaluaie the an 11 swer scripts of all candidates including the applicant g fo ihe Guwahati Division of postal department Basing on the correct Answer key the competent y shall prepare the merit list for promotion to the cadre of h/Mail. Guard for the vacancy year 2016-2017 in the Postal ment. Ordered accordingly.
21. disposed of. No order as fo costs.
with the above observation and direction, O.A. stands a Sd/-
Manjula Das Hon'ble Member (3) Sd/-
.. Mr, N. Neihsial Hon'ble Member {A) Views of the Administrative Member:
This is a case of grievance of the applicant Shri Majaffar Hussain, who appeared in the LDC Examination for promotion io the post of Postman/mail guard for the vacancy year of 2016-17 for Guwahati Division. In the said LDC examination the applicant secured a total mark of 75 in the final merit list notified by the depariment for Guwahati Division. The lowest mark secured by the « anny et ope ers eae F. selected candidate Shri Pradip Das was 78 and he was selecied and ree
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adjusted against the OC community. Being unsatisfied with ihe total marks o tained _by the applicant, he soughi for informaiion through, :
RTI. In ihe information supplied to him, fhe answer keys of question i Nos. 4, 7, 16, 22, 68 & 83 were found to be wrong by the applicant as ascertained from various reliable sources. The applicant claims that if ihese answers keys have been right, he would have secured more io marks and would have gof selecied for the post of Posiman. The : applicant made a representation fo thé competent authority for 7 q enlisting him in the list of qualified candidates. This has not been : accepted by the respondent authority. The respondents in their , i lejier dated 12.01.2017 (Annexure -- 7} pointed oui that as per item a 14 of Appendix 37 of Postal Manual Volume | IV, ihe revaluation of answer script is not permissible in any case or in any circumstances.
ee * *, Moe "
"
fe ¥ statement filed on 22.05.2018.
In regards to the other respondents No. 5, 6, 7, 8, 9 & 11 they have pointed out that af para 4 of their written statement as hereunder:
"That with regards to paragraphs the 4.5., 4.46 and 4.9, the deponents humbly beg fo state that the answer keys were prepared by the depariment of Posf and the correciness thereof would be decided by the authority. li is further stated that ihe deponenis 6, 7, 8, 9 and 11 beg io state that they have already obtained 86, 84, 83, 78 and 76 marks respectively excluding the marks for quesiion No, 4 -7-22-68 and 83. As such, if the applicant is illegible for additional 5 marks, all the respondents also get the additional 5 marks as it . reveals from the answer sheet of fhe deponents.
Hence, in case of revaluation the result will remain
-- same except respondent No. 5 who may lose 3 marks.
So ihe coniention of the paragraph is denied."
In the above context it is to be appreciated that it is not a qualifying examination with cut off marks, Since it is a competitive examination and wrong question/answer if any, is equally faced by all the candidates. The applicant has failed specifically to establish that due to these wrong answer keys that he was the only disadvaniaged candidate. The other private respondents stated that if the applicant had secured the additional 5 marks, all the other respondents also would have secured the additional 5 marks as revealed from the answer keys and their relative positions would remain same except respondent No. 5 ie. Mohammad Momtaz Ali whe would have lost only three marks. Even if this particular respondent No. 5 losses 3 marks then also the total would have bean still remain 83+5 =88 (88-3=85]. The above logic as siated by the| private respondenis is also applicable fo the particular candidates i.e. Shri Pradio Das who had secured iotal marks 78, and with presumptive additional 5 marks would come to 83 (78+5).
i The private respondents also in para 6 and 7 have highlighted ihat they have been appointed as Postman and working in different Sub, Offices with effect from 23.12.2016 and 22.12.2016 respectively.
Keeping in view of the above, the claim of the applicant is found devoid of merit and the ©.A. is liable to be dismissed.
The ©.A. is hereby dismissed. No order as to the cosis.
gape Mr. N. Neihsial Hon'ble Member (A) ae ae aw) ua eee reir te --
REFERENCE UNDER SECTION 26 OF THE ADMINISTRATIVE TRIBUNALS ACT, 1985 We, the Members of the Guwahati Bench of Central Administrative Tribunal have differed in the order to be passed in O.A. No. 040/00075/2017. The questions on which we have differed are referred to the Hon'ble Chairman under Section 26 of the Administrative Tribunals Act, 1985 are as hereunder:-
1. Whether the applicani has esfablished that because of incorrect answer keys, Os claimed, he was the only advaniaged candidate?
Sd/-
Manjula Das Hon'ble Member (i) Sd/-
.. Mr. N. Neihsial oot Hon'ble Member {A} 7 '4 ceil aan = Central Administrative Tribunal Guwahati Bench, Guwahati O.A. No.75/2017 Wednesday, this the 131 day of November, 2019 Hon'ble Mr. Justice L. Narasimha Reddy, Chairman Majaffar Hussain, son of late Zahan Ahmed Resident of Vill. Dimu No.2, PO Khudradimu, PS Rangia, Distt. Kamrup Assam, PIN 781382 . ..Applicant (Mr. U K Nair, Senior Advocate and Ms. N Shyamal, Advocate with him) Versus
1. The Union of India, represented by the Secretary to the Govt. of India Ministry of Communications & Information Technology Department of Posts, Dak Bhawan, Sansad Marg, New Delhi - 110 001 2, The Chief Post Master General Department of Posts, Assam Circle Panbazar, Guwahati -- 781001
3. The Director Postal Services (HQ) Office of the Chief Postmaster General Assam Circle, Guwahati -- 781001
4. The Assistant Director (Staff) Office of the Chief Post Master General Department of Posts, Assam Circle Panbazar, Guwahati -- 781001
5. Sr Montaz Ali 6 Tammuz Ali
7. Satya Ch Dey
8. Nasiur Rahman
9. Pradip Das
10. Kanika Kalita
11. Arati Das 12, Nayan Talukdar
13. Azharul Islam Respondent No.5 to 13 through the Assistant Director (Staff), Office of the Chief Post Master General, Department of Posts, Assam Circle, Panbazar Guwahati 781001 ..Respondents (Mr. D D Roy, Advocate) ORDER(ORAL) The applicant is working as Extra Departmental Assistant (EDA) in the Department of Posts. The promotion from that is to the post of Postman / Mail Guard. There are two methods for this purpose; one, on the basis of seniority and the other through Limited Departmental Competitive Examination (LDCE). The LDCE was held on 30.10.2016. The applicant and private respondents appeared in the said examination. The name of the applicant did not figure in the list of selected candidates. In November, 2016, the applicant submitted an application under Right to Information Act, 2005 to the concerned authority with a request to furnish various details, such as, OMR answer script, certified copy of the answer key, vacancy position of Guwahati Division and copy of merit list.
Those details were furnished to the applicant on 23.12.2016.
Thereupon, the applicant submitted a representation dated 30.12.2016 with a request to include his name in the list of qualified candidates. The same was replied on 12.01.2017 by the respondents, stating that the revaluation of answer scripts is not permissible in view of item 15 of Appendix 37 of Postal Manual Volume IV and his request cannot be acceded to.
This O.A. is filed challenging the said communication. The further prayer is to direct the respondents to prepare a correct model answer key and thereafter to re-evaluate the answer scripts of all candidates pertaining Guwahati Division, based on. the correct answer key and thereafter to prepare a fresh merit list for promotion to the cadre of Postman/ Mail Guard.
2, The respondents filed separate counter affidavits. It is stated that the LDCE was conducted on 30.10.2016 and the applicant came with a request long thereafter. It is stated that the applicant did not raise any such objection soon after appearing in the examination and short-listing, hence it is not possible to accede to the request of the applicant.
3. The O.A. was heard by a Division Bench of this Tribunal on 06.05.2019. The Hon'ble Members differed with each other. While Hon'ble Judicial Member allowed the O.A. by directing the respondents to correct the model answer key to the questions mentioned by the applicant and thereafter to re-
evaluate the answer scripts of all candidates, including the applicant pertaining to the Guwahati Division of postal department, the Hon'ble Administrative Member held that such a course is not permissible in law and accordingly, directed dismissal of the O.A.
4. Accordingly, the matter is referred to a 3 Member and it is heard today in detail. I heard the arguments of Mr. U K Nair, learned senior counsel for applicant and Mr. D D Roy, learned counsel for respondents.
5. The issue pertains to the selection of candidates through LDCE for promotion to the post of Postman/Mail Guard. The examination for this purpose was conducted on 30.10.2016. It was a multiple choice based question and through OMR sheets, and the results were declared on 07.11.2016. About two weeks thereafter, the applicant filed an application under Right to Information Act to the respondents. He did not make the same available. However, in reply thereto, the respondents furnished the list of selected candidates, merit position, list of various categories, the question paper and answer key. After getting the answer key examined, the applicant submitted a representation to the Chief Postmaster General (Staff), Guwahati with the following prayer:
"Therefore, you are requested kindly to consider my prayer to enlist me in the list of qualified candidates and ie render natural justice to me since the answers which I have attempted are treated as correct universally."
6. It is to be noted that neither there was any prayer for correction of the answer key, nor was there any request for re- evaluation in this representation. The respondents replied to the applicant as under:-
"Please refer to your representation dated 30-12- 2016 regarding the subject cited above. It is to intimate that as per item 15 of Appendix 37 of Postal Manual Volume IV, revaluation of answer scripts is not permissible in any case or under any circumstances. Therefore, your request for review of answer scripts of Postman / Mail Guard examination held on 30-10-2016 can not be entertained."
7. The applicant thereafter claims to have filed representation dated 25.01.2017, with a request to undertake revaluation of answer scripts on the basis of correct answer. Firstly, there is nothing to disclose that such representation was filed and; secondly even if the representation can be taken to have been filed, what was prayed therein is only, the revaluation, that too, answer scripts of the applicant. When the 'complaint is about inaccuracy of answers to as many as five questions, such a half-hearted and limited prayer does not suffice.
'8. The Hon'ble Supreme Court and High Courts have been cautioning that the Courts/Tribunal cannot sit as experts in the SSS sr matters of this nature and it is to be left to the concerned institutions. In the representation made by the applicant, except stating that there is possibility of other answers being correct, he did not substantiate the same. The very purpose of conducting the examination through multiple choices is to create a semblance of confusion in the minds of the candidates and to verify their definite and clear knowledge on the subject. If objection is raised at the right earnest, the Tribunal can also direct the experts to render the opinion on that. By the time the applicant has taken tangible steps in that behalf, the selections were complete and the orders of promotion were issued.
9. The very foundation for the 0.A. laid by the applicant be it in the form of initial representation dated 30.12.2016, or the one said to have been submitted later on, is very shaky and in none of them, there was any prayer for declaring the answer keys for 5 questions, referred to by him, as incorrect or to undertake any revaluation of the answer scripts of all the candidates. The mere revaluation of the answer scripts of the applicant by proceeding on the premise that the answers chosen by him are correct, would negate the very process of conducting examination.
10. Reliance is placed on the judgment-of Hon'ble Supreme Court in Rajesh Kumar & others v. State of Bihar & others, (2013) 4 SCC 690. That was a case in which the petitioners before the High Court have laid strong foundation, and at their instance, the question paper was referred to experts. It emerged that out of 100 questions, only 41 answers were found to be correct. Starting from that foundation, the remedial steps were taken and ultimately, the Hon'ble Supreme Court upheld the decision of the High Court. In the instant case, the very foundation laid by the applicant is shaky, and it is very difficult to accede to his prayer.
ti. I agree with the view taken by the Hon'ble Administrative Member, Accordingly, the 0.A. stands dismissed. There shall be no order as to costs.
an Fy ' *, Fated ao ( Justice L. Narasimha Reddy ) Chairman November 13, 2019 /sunil/