Central Administrative Tribunal - Bangalore
S Seenivel Raj vs M/O Environment And Forests on 12 September, 2023
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OA.No.170/00018/2018/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00018/2018
DATED THIS THE 12TH DAY OF SEPTEMBER, 2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
S. Seenivel Raj
S/o K. Selva Raj
Aged about 37 years
Working as Junior Laboratory Assistant,
Central Pollution Control Board,
Nisarga Bhavan,
1st and 2nd Floor, 7th D Cross,
Thimmaiah Main Road,
Shivanagar,
Bangalore 560 079 .... Applicant
(By Smt. M.L. Suvarna, Advocate)
Vs.
1. Union of India,
Represented by the Secretary,
Ministry of Environment, Forest
& Climate Change, Jorbagh Road,
New Delhi 110 003
2. Senior Administrative Officer
(Recruitment) Central Pollution
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OA.No.170/00018/2018/CAT/BANGALORE
Control Board,
Parivesh Bhavan,
East Arjun Nagar,
Shahdara,
New Delhi 110 032
3. The Regional Director,
Central Pollution Control Board,
Nisarga Bhavan,
1st and 2nd Floor, 7th D Cross,
Thimmaiah Main Road,
Shivanagar,
Bangalore 560 079
4. Neeraj Kumar
S/o not known to the applicant
C/o Senior Administrative Officer
(Recruitment),
Central Pollution Control Board,
Parivesh Bhawan,
East Arjun Nagar,
Shahdara,
New Delhi 110 032
[Respondent No. 4 deleted vide order
dated 18.04.2023 in MA No. 71/2023]
5. Rashmi Mittal,
Junior Scientific Assistant,
Central Pollution Control Board,
Parivesh Bhavan,
East Arjun Nagar,
Shahdara,
New Delhi 110 032 ...Respondents
(By Shri Vishnu Bhat, Senior Panel Counsel for Respondent No. 1,
Shri Shivaraj N. Arali, Advocate for Respondent Nos. 2 and 3, and
Shri K. Ananda, Advocate for Respondent No. 5)
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OA.No.170/00018/2018/CAT/BANGALORE
O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"a. Issue a writ, order or direction thereby quashing the impugned order of selection to the post of Junior Scientific Assistant dated 17.07.2017 issued by the 2nd respondent vide Annexure-A1, in so far as it relates to 4th and 5th respondents are concerned.
b. Issue a writ of mandamus directing the 2nd respondent to select and appoint the applicant to the post of Junior Scientific Assistant by granting additional one mark each to question No. 10, 29, 31, 34 and 45 or in the alternative direct the 2nd respondent to constitute an expert committee and to assess the correct answers to the aforesaid questions.
c. Pass any other order or orders, directions, as this Hon'ble Tribunal deems fit to pass under facts and circumstances of the case in the interest of justice and equity."
2. The facts in brief as narrated by the applicant are that he is presently working as Junior Laboratory Assistant, being a permanent employee of the 2nd respondent - Central Pollution Control Board (CPCB). Pursuant to the applications invited from the eligible candidates for filling up the posts of Junior Scientific 4 OA.No.170/00018/2018/CAT/BANGALORE Assistants by issuing a Notification dated 16.07.2016 by the 2nd respondent, the applicant had applied under OBC quota. A written test was held for 96 marks and the applicant had secured 64 marks. It is the grievance of the applicant that three questions, though were correct, have been declared as wrong and no marks have been allotted to him. The other candidates i.e., Shri Neeraj Kumar and Respondent No. 5 with 66 and 65 marks have been selected vide selection list dated 17.07.2017. Being aggrieved by his non-selection, the applicant has preferred this OA.
3. This OA was dismissed by this Tribunal on 02.11.2018 against which the applicant preferred Writ Petition No. 57547/2018. The said Writ Petition was disposed of, setting aside the order passed by this Tribunal dated 02.11.2018 and remitting the matter to this Tribunal for re-consideration. Accordingly, we have heard the matter afresh in the light of the observations made by the Hon'ble High Court of Karnataka.
4. Learned counsel Smt. M.L. Suvarna appearing for the applicant submitted that though 13 posts were notified, only the list of 10 candidates has been declared. Even out of the 10 candidates 5 OA.No.170/00018/2018/CAT/BANGALORE so notified and selected, only 8 candidates have reported for duty. The last selected candidate in the OBC category i.e., Shri Neeraj Kumar has not reported for duty, thus, the applicant being the next in the merit list under OBC category, ought to have been selected and appointed which has not been done.
5. Learned counsel argued that in respect of the questions at Sl. No. 10, 34 and 45, the respondents have neither obtained the expert opinion nor they have constituted any committee to ascertain as to whether the key answers announced by the Respondent Nos. 2 and 3 are correct. The Respondent Nos. 2 and 3 should have obtained opinion from the specialist or authoritative scholars in the field.
6. Learned counsel further submitted that during the course of examination, it was found that there were some irregularities in the questions and answers so given, particularly to Question Nos. 29 and 31 wherein there was repetition of the alternative choices. Thus, the answers given by the applicant in Question Nos. 29 and 31 would have been awarded with one mark each. Though the learned counsel contested the answer keys of Question Nos. 10, 29, 6 OA.No.170/00018/2018/CAT/BANGALORE 31, 34 and 45 as wrong, the challenge is now mainly confined to the answer keys of the questions at Sl. Nos. 10, 34 and 45.
7. Affidavit dated 11.09.2023 duly sworn by Shri J. Chandra Babu, Scientist - E and Regional Director at Regional Directorate, CPCB has been filed wherein, amongst others, it has been stated that CPCB has sent communication to the expert paper setter for providing source of answers for Question Nos. 10, 34 and 45 vide letter dated 25.09.2018 and further reminder dated 09.10.2018. Again, CPCB contacted the expert paper setter on 06.09.2023 to provide the source of answer of the aforesaid three questions. Despite the bonafide efforts of the CPCB, no response has been received from him till date. The said expert left the organization as he superannuated in February, 2018.
8. It has been further stated that since source of answer key of all three Question Nos. 10, 34 and 45 could not be ascertained by CPCB through expert paper setter as he superannuated in February, 2018 and not reachable, it would be appropriate to adjudicate this matter in proper manner and in the interest of justice and for proper fair evaluation of the answers of these questions, the answers may 7 OA.No.170/00018/2018/CAT/BANGALORE be re-assessed by third/neutral expert under the orders of this Tribunal.
9. Learned counsel Shri K. Ananda representing Respondent No. 5 supported the answer keys published by Respondent Nos. 1 and 2 as correct. Learned counsel further submitted that the selection of Respondent No. 5 (Ms. Rashmi Mittal) has to be protected. Original Respondent No. 4 Shri Neeraj Kumar having not joined, the same can be adjusted sans disturbing the appointment of Respondent No. 5 herein.
10. Question No. 10 reads thus:
10. A solution contains 10 mL 0.1 N NaOH and 10 mL 0.05 N H2SO4. The pH of the solution is:
(a) less than 7 (b) 7 (c) zero (d) greater than 7 According to the applicant, the right answer is (d) - greater than 7, whereas the key answers published by the respondents is (b) - 7.
Question No. 34 reads thus:
34. Which of the following fuels has highest calorific value per unit mass?
(a) natural gas (b) LPG (c) kerosene (d) coal 8 OA.No.170/00018/2018/CAT/BANGALORE According to the applicant, the correct answer is (b) LPG. The applicant refers to the extract of NCERT textbook VIII standard Chapter 6 - Combustion and Flame - Sub headline Fuel Efficiency.
The correct answer according to the respondents is (d) Coal. Question No. 45 reads thus:
45. The Global sea water content is around
(a) 33% (b) 67% (c) 97% (d) 20% The applicant contends that the correct answer is (c) 97%. To substantiate the same, the applicant has referred to NCERT textbook VIII standard Chapter 5 - Water - Sub headline Distribution of Water bodies. The correct key answer as per the respondents is (b) 67%. The answer given by the applicant for the Question Nos. 10, 34 and 45 were treated as wrong and no marks were awarded.
11. Considering the totality of circumstances, it was obligatory on the part of the Respondent Nos. 2 and 3 to refer the matter to an Expert Committee to assess the correctness of the key answers objected by the applicant taking source from certain textbooks. Hon'ble High Court of Karnataka in Writ Petition No. 9 OA.No.170/00018/2018/CAT/BANGALORE 57547/2018 filed by the applicant challenging the order dated 02.11.2018 passed by this Tribunal in this OA also has categorically observed that "neither the error with regard to the serialization of the options nor the text book prescribed by them have been denied. At least we do not find any material wherein they have denied the alleged errors, said to have been committed."
12. The Hon'ble Apex Court in the case of Kanpur University & Ors. Vs. Samir Gupta & Ors. reported in 1983 AIR 1230 observed thus:
"...... the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledged text-books, which are commonly read by students in U.P. Those text-books leave no room for doubt that the answer given by the students is correct and the key answer is incorrect ........ Those text-books support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the 10 OA.No.170/00018/2018/CAT/BANGALORE students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong."
13. The applicant is placing reliance on the textbooks. It is well settled that the Courts are not experts in the field to assess the correctness of the key answers. At this juncture, learned counsel representing the applicant submits that the applicant would be satisfied if the alternative prayer sought in Column No. 8 (b) of the OA is granted since the Expert Committee report, if any, would have a bearing on the prayer sought in Column No. 8 (a) of the OA. Learned counsel for the Respondent Nos. 2 and 3 has no objections for the same.
14. Given the circumstances, we direct the Respondent No. 2 to constitute an Expert Committee consisting of three members, preferably the subject professors of any university, and to re-assess the correct answer of Question Nos. 10, 34 and 45 referred to above. Expert Committee shall be constituted within four weeks from the date of receipt of the certified copy of this order. The Expert Committee so constituted shall submit its report within four weeks from the date of constitution of the committee. Respondent 11 OA.No.170/00018/2018/CAT/BANGALORE No. 2 shall take an appropriate decision based on the Expert Committee's report and the select list be prepared afresh, if required, within four weeks from the date of receipt of the report.
15. OA stands disposed of accordingly. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/