Central Administrative Tribunal - Allahabad
Kamlesh Kumar vs East Central Railway on 4 October, 2023
(Reserved on 27.09.2023)
Central Administrative Tribunal, Allahabad Bench
Allahabad
Original Application No. 330/752 of 2022
Pronounced on 04th day of October, 2023.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
1. Kamlesh Kumar aged about 40 years, son of Late Amarnath
Rai, Resident of Quarter No. 157-J, Gaya Colony, Mughalsarai,
District Chandauli.
2. Shyam Lal Prasad, son of Late Dhasmi Ram, Resident of
Village Barthi, Post Sakaldeha, District Chandauli.
3. Munna Singh, son of Late Jayram Singh, Resident of Quarter
No. 1374/A, Manas Nagar, Mughalsarai, District Chandauli.
Applicants.
By Advocate: Sri S.M. Ali
Versus
1. Union of India through General Manager, East Central
Railway, Hazipur.
2. Chief Personnel Officer, Head Quarter East Central Railway,
Hazipur.
3. Divisional Railway Manager, East Central Railway,
Mughalsarai (DDU).
4. Senior Divisional Personnel Officer, East Central Railway,
Mughalsarai (DDU).
Respondents
By Advocate: Sri Rakesh Kumar Singh
2
ORDER
Hon'ble Mr. Justice Om Prakash VII, Member (J) The present Original Application has been filed under Section 19 of the AT Act, 1985 with the prayer for quashing the impugned order dated 4.8.2022 passed by Sr. DPO and direct the respondents to recheck the answer booklets of the applicants in the light of answer key of the respondents and to declare the result of the applicants for promoting on the post of Ticket Examiner with all consequential benefits including seniority and pay from the date his panel candidates were promoted and posted.
2. The brief facts emerges from the original application are that applicants are working on Group 'D' post in the Commercial/Operating Department under the Divisional Railway Manger. In pursuance of the notification dated 22.04.2015 issued by the respondents to the eligible Group 'D' employees for promoting on the post of Group 'C'/Ticket Examiner in the pay band Rs. 5200- 20200 + GP Rs. 1900/- against 33 1/3% departmental quota, respondent No. 3 issued list of eligible candidates in which names of applicants have been shown. The examination was held on 30.01.2016 and 18.02.2016. The respondents cancelled the examinations after one year without any reason by order dated 01.07.2017. Thereafter applicants along with 11 others had filed OA No. 148/2017, which was allowed by order dated 15.5.2018. Aggrieved against the aforesaid order, respondents filed Review Application No. 37/2018, which was also dismissed by the order dated 6.2.2019. Thereafter, respondents filed Writ A No. 7858 of 2019 before the Hon'ble High Court, which was dismissed by order dated 21.05.2019, affirming the order of the Tribunal. Applicants filed Civil Contempt Petition No. 37 of 2019 for compliance of the Tribunal's order dated 15.05.2018 passed in OA No. 148 of 2017. The respondents filed review application before the Hon'ble High Court against the Hon'ble High Court order dated 21.05.2019 but no stay order was granted. Therefore, respondents have declared the result of written examination in compliance of order of the Tribunal 3 dated 15.5.2018 and passed only 22 applicants against 48 vacancies for promotion on Group 'C' post. Therefore, contempt notices have been discharged by order dated 22.03.2022. Further, applicants filed OA No. 317 of 2022 before this Tribunal for re-evaluation and recheck of their answer keys. The said OA was disposed of at the admission stage by order dated 31.05.2022 with a direction to the competent authority to take a decision on the representation of the applicants. Respondents, in compliance of order of the Tribunal dated 31.05.2022, disposed of the representations of the applicants dated 13.01.2022, which was under challenge in this OA.
3. Per contra, learned counsel for the respondents have filed counter Affidavit, denying the contention raised by the applicant in the O.A. However, it is stated that in the final result, applicant could not secure their position due to lower merit position based on the marks obtained in written test. Successful candidates were empanelled and promoted on Group 'C' post. It is further stated that in compliance of order of the Tribunal, respondents vide order dated 24.06.2022 constituted a committee of three members for re- evaluation/recheck of the answer sheet/book of applicants and accordingly their copies were re-evaluated and they were again found unsuitable in written test and marks obtained by the applicants have been communicated to them vide letter dated 4.8.2022. In pursuance of the order dated 31.05.2022, passed by this Tribunal in O.A. No. 317/2022, respondents have passed the impugned order dated 04.08.2022 rejecting the prayer of the applicant.
4. We have heard Shri S.M. Ali, learned counsel for the applicants and Shri Rakesh Kumar Singh, learned counsel for the respondents and perused the record.
5. Learned counsel for the applicants argued that answer given by the applicants has been misread by the respondents. It is further argued that there were six posts reserved for S.C. and six SC candidates were selected in the panel dated 30.09.2021 but all six SC 4 candidates did not turn up for joining. Since the applicant NO.2 belongs to SC category, he is entitled for promotion to the post of Ticket Examiner under the 'best among the failure scheme'. It is further argued that marks were not properly awarded to the applicants and when they were self-examined the questions from the answer keys, it was found that they should have got more marks, therefore, they are entitled for re-evaluation/recheck of their answer keys.
6. Learned counsel for respondents vehemently argued that evaluation of the answer sheet was done by the competent authority and disputed questions were correctly evaluated by the authority. It is argued that selection was conducted in a very just and reasonable manner following the provisions contained in IREM and Railway Board's circular and no discrimination has been done against the applicants in this selection. It is further argued that in compliance of order of the Tribunal, respondents vide order dated 24.06.2022 constituted a committee of three members for re-evaluation/recheck the answer sheet/book of applicants and accordingly their copies were re-evaluated and they were again found unsuitable in written test and marks obtained by them have been communicated to all the applicants vide letter dated 4.8.2022. In pursuance of the order dated 31.05.2022, passed by this Tribunal in O.A. No. 317/2022, respondents have passed the impugned order dated 04.08.2022 rejecting the prayer of the applicant.
7. We have considered the rival submission of the parties and have gone through the entire record.
8. From perusal of record, it is evident that examination was conducted in the year 2016 and in compliance of directions of Hon'ble High Court/CAT, the final result was declared on 30.09.2021. When applicants were declared unsuccessful, they filed representation dated 13.01.2022 and thereafter filed O.A. No. 317/2022 which was disposed off vide order dated 31.05.2022 and in pursuance of the same, respondents have passed the impugned order dated 04.08.2022, which is detailed and speaking order giving reply 5 to all the queries raised by the applicants and also mentioning the marks obtained by the applicants. There is no provision of revaluation of answer sheet.
9. Hon'ble Supreme Court in the case of Dr. B.R. Ambedkar University, Agra Vs. Devarsh Nath Gupta & others in Civil Appeal No. 1141 of 2023 (Arising from SLP (C) No. 27252/2019) decided on 14.02.2023 has held as under:-
"12. As regards the question of re-evaluation, the principles enunciated by this Court could be usefully recapitulated as follows:
12.1 In the case of Mukesh Thakur (supra) this Court observed and held as under: -
"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 [(1984) 4 SCC 27 : AIR 1984 SC 1543], 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 [(2004) 6 SCC 714 : 2004 SCC (L&S) 883 : AIR 2004 SC 4116] observing as under : (SCC pp. 717-18, para 7) 6 "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." ***** ***** *****
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) 12.2 Further, in the case of Ran Vijay Singh (supra), this Court has observed and held as under: -
"30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are:
30.1. If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it; 30.2. If a statute, Rule or Regulation governing an examination does not permit reevaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any "inferential process of reasoning or by a process of rationalisation" and only in rare or exceptional cases that a material error has been committed;
30.3. The court should not at all re-evaluate or scrutinise the answer sheets of a candidate--it has no expertise in the matter and academic matters are best left to academics;
30.4. The court should presume the correctness of the key answers and proceed on that assumption; and 30.5. In the event of a doubt, the benefit should go to the examination authority rather than to the candidate."
(emphasis supplied) 12.3 Recently, in the case of Dr. NTR University of Health Sciences v. Dr. Yerra Trinadh & Ors.: 2022 SCC OxnLine SC 1520, this Court has, after referring to the previous decisions, including that in the case of Ran Vijay Singh (supra), thoroughly disapproved the process of the Court calling for answer sheets for 7 satisfying as to whether there was a need for re-evaluation or not and thereafter, issuing directions for re-evaluation. This Court has observed and held as under: -
"9. Applying the law laid down by this Court in the aforesaid decisions to the facts and circumstances of the case on hand, we are of the opinion that the High Court was not at all justified in calling the record of the answer scripts and then to satisfy whether there was a need for reevaluation or not. As reported, the High Courts are calling for the answer scripts/sheets for satisfying whether there is a need for re-evaluation or not and thereafter orders/directs reevaluation, which is wholly impermissible. Such a practice of calling for answer scripts/answer sheets and thereafter to order re- evaluation and that too in absence of any specific provision in the relevant rules for re-evaluation and that too while exercising powers under Article 226 of the Constitution of India is disapproved."
13. It is hardly a matter of doubt that the Statute governing the examination in question does not provide for re-evaluation and scrutiny of the answer sheets. Moreover, the award of marks in the descriptive type answers essentially remains a matter of subjective assessment and the Court would not be entering into that arena of assessment, which remains reserved for the examiner/evaluator. Therefore, in the ordinary circumstances, with reference to the enunciations aforesaid, the process as adopted by the High Court could not have been given our imprimatur. However, on the peculiar facts and in the exceptional circumstances of the present case, we are refraining from interfering in the substantive part of the relief granted to the writ petitioner, particularly for the reasons that a direct prohibition in the Statute in question has not been shown; the original examiner seems to have totally omitted to award the marks in relation to answer Nos. 2, 5(a) and 5(b); the process of evaluation by other examiners has been adopted and taken forward by the High Court by providing for awarding of average of the marks of the three examiners; and any interference at this length of time might entail serious adverse consequences to the writ petitioner. However, we need to make it clear in no uncertain terms that non-interference in the present case is not to be construed as any endorsement by this Court to the process adopted by the High Court".
10. It is also to be pointed out that the process of selection begins with the issuance of advertisement and ends with the filling up of notified vacancies. The process consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of 8 list of successful candidates for appointment. Normally the task of selection is assigned to a selection committee and the function of such a committee is to select those amongst the eligible candidates on the basis of merit adjudged by adopting fairly laid down criteria and finally preparing a panel or select list of the successful or selected candidates. The persons having better grade are including in the select list.
11. In the instant case, the evaluation was done by the expert committee and committee has awarded marks to the applicants on the basis of criteria fixed by it. If we direct for re-evaluation of the answer sheet, all candidates will suffer. For the sake of argument, this fact be taken into consideration that there is provision for re- evaluation then also impugned order cannot be challenged in unless there is a ground to show that the policy itself is in violation of some statutory provision. It may be mentioned here that the Tribunal has no expertise to direct the Expert Body, who have already re-checked/ re-evaluated the answer-sheet, to further re-check/re-evaluate the answer-sheet in a particular manner as has been mentioned herein above. Re-evaluation cannot be done in this matter by the Expert Committee only on the ground shown by the learned counsel for the applicant. If re-evaluation is directed particularly in an examination, which is based on descriptive type question, it will hamper the whole process of examination. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied. Selection process is completed and all selected candidates have joined on the promotional post. On prayer of applicants and direction of Tribunal, recheck/re-evaluation has already been done by an expert committee. Thus, it will not be fair to direct the respondents to re-evaluate the answer sheet at this stage. Respondents have passed a detailed and speaking order.
12. Considering the observations of the Hon'ble Supreme Court in the case of B.R. Ambedkar University, Agra (supra) as well as submissions of the parties and after perusal of records, we do not 9 find any illegality in the selection process or in the impugned order and applicants are not entitled for any relief and O.A. is liable to be dismissed. Accordingly, O.A. is dismissed. There shall be no costs. All associated MAs are disposed of.
(Dr. Sanjiv Kumar) (Justice Om Prakash-VII) Member (A) Member (J) Manish/-