Central Administrative Tribunal - Delhi
Ashok Kumar vs M/O Railways on 9 August, 2016
1
Central Administrative Tribunal
Principal Bench:New Delhi
OA No.524/2015
Reserved on:15.02.2016
Pronounced on:09.08.2016
Hon'ble Shri Sudhir Kumar, Member (A)
Hon'ble Shri Raj Vir Sharma, Member (J)
Shri Ashok Kumar
S/o Shri Jagbir Singh Malik
R/o 459-F, Dev Colony,
Rohtak Haryana.
Aged 31 years, Unemployed. ...Applicant
(By Advocate: Shri G.N.L.Murti)
VERSUS
1. The Chairman,
Railway Board
Baroda House, New Delhi.
2. The General Manager,
Railway Recruitment Cell,
Northern Railway,
Lajpat Nagar-1,
New Delhi-110024. ...Respondents.
(By Advocate: Shri R.N.Singh)
ORDER
Per Sudhir Kumar, Member (A):
The applicant is a Visually Handicapped (VH, in short) disabled person, with his disability percentage having been (OA No.524/2015) (2) assessed as 40%, and being permanent in nature. He has approached this Tribunal because the Respondent No.2-Railway Recruitment Cell (RRC, in short) had refused to evaluate his Answer/OMR Sheet relating to the Group "D" Examination held on 24.11.2013, on the ground that the applicant had committed an error of not blackening/darkening one single circle underneath the Booklet Number, though the number had already been mentioned by the applicant, which he claims is certainly not such a mistake which may legally permit the respondents to refuse the evaluation of the applicant's Booklet/OMR Sheet. More so, he has now become over-aged. He had represented to the respondents in this regard on 13.11.2015 and 17.12.2014, but of no avail, and he had then filed the present this OA on 03.02.2015. The designation and the address of the Respondent No.R-1 had been wrongly mentioned, but the main contesting party being Respondent No.R-2, it did not create any problem.
2. The facts of the case may be described, in brief, as follows:
(a) The applicant had applied in response to the Advertisement brought out by Respondent No.R-2 in 2012 for filling up the posts of Group "D" employees in the Northern Railways, and was issued an Admit Card (OA No.524/2015) (3) for the Written Examination, and he appeared at the same on 24.11.2013.
(b) The examination's answers were required to be provided (in respect of an objective type question paper) on an OMR Sheet, provided to fill the answers, for which the applicant was required to fill in his question Booklet Number also.
(c) The applicant attempted the question paper confidently, but was thereafter surprised to see the result of the examination on the internet, where his Roll Number was categorized as "Not Short Listed".
(d) He filed an RTI Application on 02.07.2014 to ascertain the truth, and according to the reply to the RTI Application dated 16.09.2014 (Annexure A-5), he was informed that his candidature had been rejected due to "OMR Error".
(e) The applicant made several visits to the Office of the Respondent No.2 to elicit from them the meaning of "OMR Error" and gave representations also, as already mentioned above.
(OA No.524/2015) (4)
(f) The respondents declined to give anything in writing to the applicant, but on his repeated pleadings, they showed him his original OMR Sheet in their office, whereby he came to know that all the information required to be filled in the OMR Sheet was duly filled by the applicant, including the writing/filling up of his Roll Number, Control Number and Booklet Number, however, one of the circles below the Booklet Number which corresponded with the Booklet Number filled was not blackened by him.
3. The applicant has submitted that this minor error of not blackening just one circle by a visually handicapped person is not such a mistake which may disentitle him from getting his answers evaluated, and that the respondents ought to have evaluated the Answer/OMR-Sheet. He has, therefore, prayed that since he has now become over-aged for being eligible to appear at any future examinations, this Tribunal may issue a direction to the respondents to evaluate his Answer/OMR Sheet, ignoring the minor inadvertent curable error. He has repeated the same contentions in the grounds taken in the OA, and has alleged that the Respondent No.2 had adopted a highhanded and highly technical attitude by refusing to evaluate his Answer /OMR Sheet.
(OA No.524/2015) (5) It has been submitted that in other similar examinations, where any examinee had inadvertently failed to blacken the circles, although had filled in the required information, as a routine the examiner himself blackens such left out circles, since the complete information is already available on the Answer /OMR Sheet. He has claimed that the invigilator / supervisor had erred in having signed the OMR Sheet without ascertaining the relevant information having been filled correctly. It was, therefore, submitted that before intimating the rejection of the Answer /OMR Sheet, the respondents ought to have investigated the matter, and ought to have evaluated his Answer /OMR Sheet, particularly since he is a VH person.
4. The applicant first filed Writ Petition on 17.01.2015 vide Diary No.24116 before the Hon'ble Delhi High Court, which was returned by the High Court's Registry on 21.01.2015, with the objection that the jurisdiction lies with this Tribunal. In the result, the applicant filed this O.A. and has prayed for the following reliefs:
"a) direct the respondents to evaluate the answer/OMR Sheet of the Applicant relating to the group D examination held on 24.11.2013;
b) grant such other reliefs as may be prayed for and the Tribunal may deem fit to grant, and
c) grant the costs of this Original Application."
(OA No.524/2015) (6)
5. The respondents filed their counter reply on 20.05.2015, raising preliminary objections, and submitted that no cause of action had accrued to the applicant, as no statutory, constitutional or enforceable right of the applicant had been infringed by the respondents, and the OA, therefore, deserves to be dismissed on that ground only.
6. It was further submitted that the OA is bad for non-joinder of necessary parties, inasmuch as the applicant has not impleaded any person who is likely to be affected in case the OA is allowed by this Tribunal. Therefore, the OA deserves to be dismissed in limine.
7. Thereafter, it was submitted that in response to the Advertisement /Notification, 22,07,709 applications were received. After initial scrutiny, 15,93,796 candidates were called provisionally for written examination, subject to final verification of their qualifications. Out of those only 5,26,655 candidates actually appeared in the written examination held in five phases in the month of November 2013, and the result thereof was declared through RRC/NR website on 05.02.2014.
8. It was submitted that the number of examinees being so large, the whole process of result preparation had been done on (OA No.524/2015) (7) the basis of OMR computer software, and that before the written examination had commenced, all the provisionally allowed candidates were informed to fill in the complete data on the OMR, and that failure to adhere to instructions will render the answer sheet invalid, and it will not be evaluated. It was further pointed out that after necessary invalidation of the cases where identity could not be validated/established from the filled OMR with data base, result consideration had been pruned down to 4,98,255 candidates.
9. Coming to the applicant's case, it was submitted that he had not filled the Booklet Number in the prescribed column correctly, and had admittedly left one of the bubbles on OMR Sheet blank. Therefore, the OMR evaluation software could not accept/identify the data of the OMR sheet, and the result of the applicant was not processed further, as the data filled by the applicant on the OMR Sheet was not accepted by the software, as had been done in all other similar cases, and hence his status appeared as "Not Short-listed" candidate. It was submitted that there is no illegality in the action which has been taken as per the rules uniformly applicable to all, without any discrimination, and as per rules/notification widely published for all, and any deviation from the same for any specific individual would not be justified, and (OA No.524/2015) (8) would be against the uniform policy adopted by the administration. It was further submitted that the issue is no longer res integra, as the Coordinate Benches of this Tribunal had already decided the issue in their orders in (i) OA No.3781/2012 in Mandeep Malik vs. SSC, (ii) OA No.853/2014 in Sunil Kumar vs. UOI, (iii) OA No.857/2014 in Braj Mohan Pachouri vs. UOI and (iv) OA No.858/2014 in Dinesh Kumar vs. UOI. It was, therefore, submitted that the OA is devoid of any merit, and deserves to be dismissed with costs.
10. The respondents had also enclosed a photocopy of the applicant's OMR Answer Sheet to show that while marking Question Booklet Number 3161768, the applicant had marked the numerals 3,1,6,1,7 & 8 correctly, but in between the numeral 6 had not at all been marked by him, because of which the OMR reader computer could not identify the Question Booklet, and the applicant's case was rejected by the computer software itself.
11. The applicant filed his rejoinder on 22.07.2015, stating that the deponent does not have the authority and competence to submit and verify the counter affidavit on behalf of the replying respondents, and as such the counter affidavit was liable to be rejected. It was further denied that no cause of action has accrued to the applicant. It was also denied that the OA is bad (OA No.524/2015) (9) for non-joinder of necessary parties, as the applicant has not impleaded any person, who is likely to be adversely affected in the case the OA is allowed, when the respondents themselves have failed to mention any such person who would get adversely affected. It was further submitted that when it is an admitted fact that the applicant is a visually handicapped VH category person, it was the duty of the supervisors in the examination hall to check and verify the filling up by the applicant of correct Booklet Number, which duty they have failed and neglected to do, because of which the Booklet Answer Sheet could not be evaluated by the computer, which could have easily been avoided if the supervisory staff of the respondents had performed their duties diligently. Thereafter, the contentions as made out in the OA had been reiterated in the rejoinder to the para-wise reply. It was, therefore, submitted that all the grounds, as raised in the OA, are in favour of the applicant, and it was asserted that since the applicant is a visually handicapped person, his case cannot be treated at par with normal persons, and should be considered more liberally, without strictly adhering to the rules. It was further submitted that the cited decisions of this Tribunal did not related to the visually handicapped persons, therefore, they are (OA No.524/2015) (10) not applicable to the instant case. It was, therefore, prayed that the OA be allowed.
12. Heard. Both the learned counsels advanced their arguments in detail on the lines of their pleadings, as above.
13. Learned counsel for the respondents on his part read out Para-4 of the order passed on 29.11.2012 in OA No.3781/2012 in Mandeep Malik vs. Staff Selection Commission & Others (supra), Para-2 of the order dated 26.05.2014 passed in OA No.853/2014 in Sunil Kumar vs. UOI (supra), Para-2 of the order dated 26.05.2014 passed in OA No.857/2014 in Braj Mohan Pachouri vs. UOI (supra) and Para 2 of the order dated 26.05.2014 passed in OA No.858/2014 in Dinesh Kumar vs. UOI (supra).
14. We have given our anxious consideration to the facts of the case. Since the applicant is capable of filling up more than 99% of the bubbles in the OMR Sheet, and was able to complete his question paper, now when his result has been declared, he cannot take shelter behind his being a VH person to seek exemption from the requirement of correctly filling up OMR Sheet format. He has in fact correctly filled up most of the portions of the OMR Sheet. He had even correctly marked first five digits and (OA No.524/2015) (11) the last 7th digit of his Question Booklet Number, and actually he did not mark the bubble in respect of 6th digit in between, because of which the computer reading the OMR Answer Sheet could not identify the Question Booklet Number.
15. Therefore, we find no merit in the contention of the applicant that any special privilege should be allowed to him, because of his being a VH person, or uphold his contention that the law as declared by the Coordinate Benches in the four cited judgments mentioned above would not be applicable to his case, just because those four candidates were not VH candidates.
16. As is clear from the counter reply of the respondents, thousands of cases of the candidates have been rejected on the basis of their not having been able to mark the bubbles on the OMR Answer Sheet properly, or having the bubbles on OMR left blank. If a concession is shown to the applicant before us, it would militate against the interests of those other thousands of persons also, who have not approached this Tribunal, in the belief that they were bound by the Advertisement Notification and the Instructions contained in the first two pages of the OMR Answer Sheet, which had given the guidelines for filling the bubbles on the OMR Sheet correctly. Further, as per the law laid down by (OA No.524/2015) (12) the Hon'ble Apex Court in S.I.Roop Lal vs. Lt. Governor, Delhi, AIR 2000 SC 594, we are not only bound by the orders of the Coordinate Bench, but we also concur with the four orders produced by the learned counsel for the respondents.
17. Therefore, we find no merit in the O.A., and the same is rejected, but there shall be no order as to costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) /kdr/