Central Administrative Tribunal - Ernakulam
K.Rajan vs Senior Superintendent Of Post Offices on 17 October, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 748/2010
Monday, this the 17th day of October, 2011.
CORAM
HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER
HON'BLE Ms. K NOORJEHAN, ADMINISTRATIVE MEMBER
K.Rajan,
Gramin Dak Sevak Branch Postmaster,
Vavulliapuram.P.O., Kavasserry(via),
Palakkad. ....Applicant
(By Advocate Mr Antony Mukkath with Mr O.V.Radhakrishnan, Senior)
v.
1. Senior Superintendent of Post Offices,
Palakkad Division, Palakkad-678 001.
2. Postmaster General,
Northern Region, Kozhikode.
3. Chief Postmaster General,
Kerala Circle, Thiruvananthapuram.
4. Union of India represented by its Secretary,
Ministry of Communications, New Delhi.
5. A.Nazeema,
Postman, Mannapra.P.O.
Palakkad District.
6. K.K.Sudevan,
Postman, Edathana.P,.O,
Palakkad District. ....Respondents
(By Advocate Mr M.K.Aboobacker for R.1 to 4. )
(By Advocate Mr TC Govindaswamy for R.5 & 6)
This application having been finally heard on 4.10.2011, the Tribunal on
17.10.2011 delivered the following:
O R D E R
HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER The applicant, working as Gramin Dak Sevak Branch Postmaster, Vavulliapuram under the Palakkad Postal Division has filed this O.A seeking the following reliefs:
(i) To call for the records leading to the selection and appointment of respondents 5 and 6 to the cadre of post of Postman for the vacancies of the year 2007 and to set aside the same to the extent they adversely affect the applicant;
(ii)To issue appropriate direction or order directing the respondents 1 to 4 to award proper and correct marks for Paper C to the respondents 5 and 6 applying the same standard adopted in the case of the applicant and to review the selection and appointment of respondents 5 and 6 on the basis of the marks secured by the applicant by awarding proper and correct marks to the respondents 5 and 6 for Paper C based on the quality of their answers;
(iii)To issue appropriate direction or order directing the respondents 1 to 4 to promote the applicant to the cadre of Postman with effect from the date of his entitlement with all consequential benefits including arrears of pay and allowances.
2. Briefly stated: the applicant was an aspirant for Group'D' post under the departmental quota of GDS on merit basis. In the said selection, the two notified vacancies were filled up by respondents No.5 and 6. The marks secured by these two respondents were found to be the maximum viz, 149 and 148 respectively in aggregate out of 150 marks. The applicant has secured 146 marks out of 150. As there has been a a narrow difference in the marks secured, the applicant has applied under RTI Act to have the copies of the answer of sheets both of the applicant as well one of the respondents. On the same being furnished by the applicant, the applicant has filed this O.A stating that lower marks have been awarded to the applicant even though his answer sheets contained only minimum mistakes. On comparison he found his answer paper though contained only a few mistakes, was evaluated conservatively with minimum marks compared to the other person who has been selected. The following are the grounds raised by the applicant in this O.A. A. The action of the respondents in awarding unmerited marks to the respondents 5 and 6 in the departmental examination for recruitment to the cadre of Postman for filling up 2007 vacancies and thereby depriving the right of the applicant to be selected for promotion under the merit quota to the cadre of Postman is illegal, unreasonable and is vitiated by arbitrariness falling within the mischief of Articles 14 and 16() of the Constitution of India.
B. The selection and appointments of respondent 5 and 6 who would have scored lesser marks, had the awarding of marks to them was properly done are clearly illegal, arbitrary and discriminatory. The applicant would get top marks, if the valuation of answers was properly and correctly done. Awarding of higher marks to the respondents 5 and 6 is vitiated by favouritism and nepotism and cannot be justified either in law .or logic. It is an act bordering on perversity to render a person ineligible for promotion who is otherwise eligible and standout first if proper marks awarded to them. Awarding of higher marks to respondents 5 and 6 runs counter to fair play in action and is not supported by reason and law. The action of the respondents stand out to be devoid of any justification. It is liable to be branded as malafide exercise of power warranting interference by this Tribunal in exercise of the power of judicial review. The respondents are compellable to award marks to the respondents 5 and 6 applying the same yardstick applied to the applicant. In that event the applicant would stand first among the selected candidates and would get promoted to the cadre of Postman in preference to respondents 5 and 6.
C. The respondents 5 and 6 came to be promoted to the cadre of Postman in preference to the applicant only for the reason that they were given higher marks in an indiscriminate manner. The selection and appointment of respondents 5 and 6 are therefore illegal and therefore, vitiated by extraneous considerations and malafides. It follows that the selection and appointment of the respondents 5 and 6 are liable to be compelled to be reviewed and the respondents 1 to 4 are compellable to set aside the selection and appointment of the respondents 5 and 6 and to select and appoint the applicant by awarding proper and correct marks to him by re-valuing his answer papers.
4. Respondents have contested the O.A. They have stated that there is noo provision for evaluation of mark sheets and in support of the same they have annexed a copy of the judgment of the Apex Court in one of the recent decision
- H.P.Public Service Commission v. Mukesh Thakur and another - Civil Appeal No.897/2006.
5. The applicant has filed a rejoinder wherein he has added Annexure A-7 which reflected that if the claim of the candidate appears to be genuine, revaluation may be got done by an independent examiner in such cases and further necessary action may be taken. He has also annexed Annexure A-8, a representation addressed to the Chief Posmaster General referring to Annexure A-7 order and requesting the Chief PMG for revaluation. Annexure A-9 is the copy of the order in O.A.459/2010 and 512/2010 wherein it was reflected that when two individuals have filed the O.As for a direction to the respondents for revaluation of the papers, during the pendency of these applications, the respondents have re-evaluated the answer papers of both the applicants.
6. Respondents have filed their additional reply wherein they have referred to Annexure A-7 to state that if the said Annexure A-7 is taken into account, the applicant's case comes under Clause 4 of para 3 which states that representation requesting for revaluation of answer papers are being received specifically pointing out that all the answers were valued, justified marks were not awarded by the examiner. In so far as this issue is concerned, the very same Annexure A-7 stipulates that there is no need to consider such request and such request merits rejection at the initial stage itself. As regards Annexure A-9 judgment, respondents have stated that the said judgment is applicable only in the case of applicants in those O.As only. Revaluation in those cases could be done as the only point to be evaluated was whether entries were made properly as per rules and according to prescribed columns and whether the answers were correct. Thus, the respondents had tried to distinguish Annexure A-9 judgment from the facts of the case in hand in this O.A.
7. Counsel for the applicant argued that a mere glimpse at the answer sheet of the applicant and that of the selected candidate would reveal that the valuation is not found to be rational. While lower marks were awarded to the applicant whose answer sheet contained minimum mistakes, higher marks were awarded to the selected candidate whose answer sheet contains more mistakes. On the contention that valuation does not rest only with the contents of the answers or mistakes but other factors such as neatness, style of writing etc., will also be taken into consideration, counsel for the applicant submitted that here again, the answer sheets would reflect as to which one is more neat and presentable.
8. Counsel for the respondents submitted that "Revaluation of answer scripts is not permissible in any case under any circumstances as per Rule 15 of Appendix 37 of P & T Manual Volume IV and this position has been upheld even in the Apex Court." (See para 3 of the counter). Again, in support of his contention, counsel for the respondents referred to the decision by the Apex Court in the case of Himachal Pradesh PSC and Mukesh Thakur & Another (2010) 6 SCC 759.
9. Arguments were heard and documents perused. The applicant is right when he submitted that the answer sheet of the applicant contains minimum mistakes compared to the other answer sheet of the selected candidate and on appearance, the same is certainly more neat and presentable than the other one. However, what is to be seen is whether the Tribunal could go into these facts and order revaluation or whether the tribunal itself could undertake the job of revaluation. Answer to this question is given in the Apex Court judgment in the case of Mukesh Thakur (supra), relied upon by the counsel for the respondents. In the said judgment, the Apex Court dealt with the case of re- evaluation of the answer sheets, as directed by the High Court and in fact the Apex Court itself directed for such revaluation, but ultimately the Court has held as under:-
"16. It is a settled legal proposition that the court cannot take upon itself the task of the statutory authorities.
17. In Hindustan Shipyard Ltd. v. Dr. P. Sambasiva Rao this Court held that in a case where the relief of regularisation is sought by the employees working for a long time on ad hoc basis, it is not desirable for the Court to issue direction for regularisation straightaway. The proper relief in such cases is the issuance of direction to the authority concerned to constitute a Selection Committee to consider the matter of regularisation of the ad hoc employees as per the Rules for regular appointment for the reason that the regularisation is not automatic, it depends on availability of number of vacancies, suitability and eligibility of the ad hoc appointee and particularly as to whether the ad hoc appointee had the eligibility for appointment on the date of initial appointment as ad hoc and while considering the case of regularisation, the Rules have to be strictly adhered to as dispensing with the Rules is totally impermissible in law. In certain cases, even the consultation with the Public Service Commission may be required, therefore, such a direction cannot be issued.
18. In Govt. of Orissa v. Hanichal Roy this Court considered the case wherein the High Court had granted relaxation of service conditions. This Court held that the High Court could not take upon itself the task of the statutory authority. The only order which the High Court could have passed was to direct the Government to consider his case for relaxation forming an opinion in view of the statutory provisions as to whether the relaxation was required in the facts and circumstances of the case. Issuing such a direction by the Court was illegal and impermissible. Similar view has been reiterated by this Court in LIC v. Asha Ramchhandra Ambekar and A. Umarani v. Coop. Societies.
19. In G. Veerappa Pillai v. Raman and Raman Ltd. the Constitution Bench of this Court while considering the case for grant of permits under the provisions of the Motor Vehicles Act, 1939, held that the High Court ought to have quashed the proceedings of the Transport Authority, but issuing the direction for grant of permits was clearly in excess of its powers and jurisdiction.
20. In view of the above, it was not permissible for the High Court to examine the question papers and answer sheets itself, particularly, when the Commission had assessed the inter se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for Respondent 1 only. It is a matter of chance that the High Court was examining the answer sheets relating to Law. Had it been other subjects like Physics, Chemistry and Mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court.
xxx xxx xxx
24. The issue of revaluation of answer book is no more res integra. This issue was considered at length by this Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, wherein this Court rejected the contention that in the absence of the provision for revaluation, a direction to this effect can be issued by the Court. The Court further held that even the policy decision incorporated in the Rules/Regulations not providing for rechecking/verification/ revaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision. The Court held as under: (SCC pp. 39-40 & 42, paras 14 & 16) "14. ... It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. ...
* * *
16. ... The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act."
25. This view has been approved and relied upon and reiterated by this Court in Pramod Kumar Srivastava v. Bihar Public Service Commission observing as under:
"7. ... Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for revaluation of his answer book. There is a provision for scrutiny only wherein the answer books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totalling of marks of each question and noting them correctly on the first cover page of the answer book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for revaluation of answer books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for revaluation of his marks."
(emphasis added) A similar view has been reiterated in Muneeb-Ul-Rehman Haroon (Dr.) v. Govt. of J&K State, Board of Secondary Education v. Pravas Ranjan Panda, Board of Secondary Education v. D. Suvankar, W.B. Council of Higher Secondary Education v. Ayan Das and Sahiti v. Dr. N.T.R. University of Health Sciences.
26. Thus, the law on the subject emerges to the effect that in the absence of any provision under the statute or statutory rules/regulations, the Court should not generally direct revaluation." (Emphasis supplied)
10. In view of the clear emergence of law as spelt out by the Apex Court, in the instant case since there is no provision for re-valuation vide Rule 15 of Appendix 37 of P & T Manual Volume IV, the Tribunal cannot generally direct revaluation. In addition, Clause 4 of para 3 of Annexure A-7 order and the manner in which cases falling under that category has to be dealt with (vide para 6 above) have not been challenged. The case of the applicant falls under this category. Though the above law laid down by the Apex Court might gives a latitude to the Tribunal to order re-evaluation (which could be discerned from the word, "cannot generally direct revaluation", in the instant case as the selection took place in 2009 and as the selected candidates also joined the post long ago (though the time lag is justified by the counsel for the applicant which was attributed to the procedural time involved in getting information through RTI) the Tribunal is not in a position to order revaluation or afford the relief sought for by the applicant.
11. The OA thus fails and is dismissed. No costs.
K NOORJEHAN Dr K.B.S.RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER trs