Central Administrative Tribunal - Kolkata
Surjit Biswas vs Railway Recruitment Board on 12 May, 2023
ce! OA 1482/2019 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH KOLEATA G.A./350/01452/2019 Date of hearing : 12.05.2023 Coram: Hon'ble Mr. Manish Garg, Judicial Member Hon'ble Mr. Anindo Majumdar, Administrative Member For The Applicant(s):
For The Respondent(s):
In the matter of:
SurjitBiswas, son of Goutam Kumar Biswas, aged abuut 25 years, occupation- unemployed, residing at South Eastern Railway, Quarter no. DS/102-B, Near Railway Medical Hospital via Kethardanga Ashrampara, Post Office and Histrict- Bankura, Pin- 722101.
....Applicant
-Vs-
}. TheUnion of India, service through the Secretary, Ministry of Railways, Rail Bhawan, Raisina Road, New Delhi-110001.
I. The Chairman, Railway Recruitment Board, olkata, Office at Metro Railway, A. V. Complex Chitpur, opposite of R.G. Kar Medical College and Hospital, R G Kar Road, Kulkata- 700037.
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(ii) There are number of methods of statistical scaling, some simple and some complex. Each method: or system has its merits and demerits and can be adopted only under certain conditions or making certain assumptions.
(iii) Scaling will be useful and effective only if the distribution of marks in the batch of answer scripts sent to each examiner is approximately the same as the distribution of marks in the batch of answer scripts sent to every other examiner.
(iv) In the Linear Standard Method, there is no guarantee that the range of scores at various levels will yield candidates of comparative ability.
(v) Any scaling method should be under continuous review and evaluation and improvement, if it is to be a reliable tool in the selection process.
(vi) Scaling may, to a limited extent, be successful in eliminating the general variation which exists from examiner to examiner, but not a solution to solve examiner variability arising from the 'hawk-dove' effect (strict/liberal valuation). "
Learned Counsel for the applicant would also contend that three questions were out of syllabus.
2.5 Learned Counsel for the applicant fairly concedes that he has not challenged the terms and conditions of the advertisement. He is also not agerieved by the normalization of marks adopted by the respondents, however, he is aggrieved by the process of normalization. He draws a reference to the illustration produced on record to show that if the correct procedure of normalization ought to have been adopted by the respondents as well as the three questions, which were out of syllabus, would have been ignored, the applicant would have fallen in the zone of consideration. Learned Counsel produces the following calculation in this regard :-
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8 & / 7 ; OA 1482/2019 candidates were awarded with more normalized marks and merit index and thereby were shorilisted for document verification process. However, it isa
- matter of record that despite having the names, these candidates were not made party to the present OA, neither any steps were taken by the applicant to make them a party.
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3. Learned Counsel for the respondents vehemently opposes the grant of -
relief in the original application. Learned Counsel for the respondents would urge and argue that:
"4, (1) CENTRALISED EMPLOYMENT NOTICE (CEN) No.03/2018 was published on 29.12.2018 for Recruitment of Junior Engineer (JE), Junior Engineer (Information TMA serena 8 OA 1482/2019 Technology) [JE(IT)], Depot Material Superintendent (DMS) and Chemical & Metallurgical Assistant (CMA) by Government of India, Ministry of Railways, Railway Recruitment Boards.
(li) The present applicant submitted his online application pursuant tothe above Employment Notice.
(II) Some of the relevant items of the said Employment Notice arementioned below.
A :"Important Instruction Item 17. Before filling up of the online application, candidates are advised to thoroughly read the entire instructions and information in the detailed CEN available on the websites of RRBs." B :Item "1.11 Preference for post(s) and/or Railway(s)/Unit(s): The options from the candidates for various posts for which they are eligible in the opted RRB, shall be taken during submission of ONLINE applications.
On completion of all stages of recruitment process, RRBs shall allot post & Railway/Unit as per the option of the candidates ONLY subject to merit and vacancy position. Once candidates have been empanelled as per their merit/choice, they will forfeit the right to be considered for any other post/category."
C.: Item 14.1 of CEN-03/2018 details NORMALISATION OF THE MARKS, Item 14.2 of CEN -03/2018 details CALCULATION OF NORMALIZED MARKS FOR MULTI- SESSION PAPERS and Item 14.3 of CEN-03/2018 details CALCULATION OF MERIT INDEX FOR AL PAPERS.
D: As per Item 1.18 of CEN-03/2018, RRBs reserve the right to. incorporate any subsequent changes/ modifications/additions in the terms and condition of recruitment under the CEN as necessitated and applicable. E: On 11.07.2019, i.e. before the commencement of fina! stage CBT a notification was published by all the RRBS in the official websites indicating the revised normalization formula, The said notice was for the information for all the candidates prior to their final stage examination.
Thus the applicant is aware of the normalization process and merit index process prior to 2nd stage CBT.
F. After the 2nd Stage CBT, the normalized score and merit index was prepared following the above formula. The present applicant was a candidate of civil engineering branch.
G. The details of the shift wise parameters for normalization for all the shifts of 2nd stage CBT for Civil Engineering Branch as made available by the examination conducting agency is at Annexure R-4, | H. The calculation on putting the values of the paramete:s vis a viz the scores of the applicant as per the final normalization formula indicates that the normalized score and merit index of the applicant is correct.
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a ae ae pmed a 11 OA 1482/2019 scaling after a scientific study by experts, this Court apparently did not want to interfere. This Court was also being conscious that any new method, when introduced, required corrections and adjustments from time to time and should not he rejected at the threshold as unworkable. But we have found after an examination of the manner- in which scaling system has been introduced and the effect thereof on the present examination, that the system is not suitable. We have also concluded that there was no
- proper or adequate study before introduction of scaling and the scaling system which is primarily intended for preparing a common merit list in regard to candidates who take examinations in different optional subjects, has been inappropriately and mechanically applied to a situation where the need is to eliminate examiner variability on account of strict/liberal valuation. We have found that the scaling system adopted by the Commission leads to irrational results, and does not offer a solution for examiner variability arising from strict/liberal examiners, Therefore, it can be said that neither of the two assumptions made in S.C. Dixit can validly continue to apply to the type of examination with which we are concerned. We are therefore of the view that the approval of the scaling system in S.C. Dixit is no longer valid.
50. Learned counsel for the Commission also referred to several decisions in support of its contention that courts will be slow to interfere with matters affecting policy requiring technical expertise and leave them for decision of experts. (State of U.P. v.
Renusagar Power Co. Ltd. - 1988 (4) SCC 59, Tata Iron & Steel Co. Ltd. v. Union of _ India 1996 (9) SCC 709, Federation of Railway Officers Association v. Union of India 2003 (4) SCC 289). There can be no doubt about the said principle. But manifest arbitrariness and irrationality is an exception to the said principle. Therefore, the said decisions are of no avail,"
5.3 Even in the present facts, there is no challenge to the terms and conditions of the advertisement itself. It has also been urged that three questions were out of syllabus. It is only the applicant who has approached this Tribunal, there would have been lakhs of similarly situated candidates who have not challenged the said contention that three questions were out of syllabus and therefore the said contention is repelled and devoid of merit.
5.4 It is well settled law that in the field of education as well as appointment, the Court cannot act as an expert. The recruitment process is a policy decision unless and until instances of arbitrary and malafide exercises are made out. On perusal of pleadings, there is nothing on record to show that there is a specific allegation that the respondents acted in a malafide and arbitrary manner.
5.5 In a recent decision rendered by the Hon'ble Apex Court in The Arunachal Pradesh Public Service Commission & Anr. vs Miss Hage Mamung in Civil Appeal No. 350/2023, it has held as under :-
Cy Cae 12 OA 1482/2019 " At the outset, it is required to be noted that as the answer keys with respect to two questions, namely, question No. 12 and question No. 31 of the General Knowledge Paper were found to be wrong, a conscious decision was taken by the Public Service Commission to cancel the aforesaid two questions and with a view to see that no candidate should be penalised for the mistakes in the answer keys provided by the resource persons, it was decided to award marks against question No. 12 and question No. 31 to all the candidates on pro-rata basis. The original writ petitioner including original respondent No. 5 and all the candidates therefore were awarded two marks each on pro-rata basis. Therefore, after such process with corresponding increase in the marks of all the candidates, the rank/merit would remain the same and in fact remained the same. In fact, the original writ petitioner is also allotted two marks on pro-rata basis with respect to question Nos. 12 & 31 along with all the candidates, Merely because, according to the original writ petitioner, she correctly answered both question Nos. 12 & 31 and original respondent No. 5 answered one question correctly and one question _ wrongly, the Division Bench of the High Court is not justified in ordering re-evaluation of the papers of only two candidates, namely, the original writ petitioner and original respondent No, 5, against a conscious decision taken by the Public Service Commission to award two marks to each candidate on pro-rata basis with respect to two questions of which the answer keys were found to be wrong.
gant ah si SN 6. As per clause 38(v) of the Guidelines 2017, where in the question in the examination g =| paper itself is wrong and thus could not possible be evaluated to have correct answer, Q™ 5, / there may be. deletion of such incorrect questions and the consequent pro-rata distribution of the marks allocated to them. Applying the same analogy with respect to wrong answer keys and thereafter when a conscious decision was taken to allocate the marks on pro-rata basis with respect to two questions whose answer keys were found to be wrong and when all the candidates were awarded two marks (one -mark each for the aforesaid two questions), it cannot be said that the Public Service Commission acted illegally and/or arbitrarily and/or committed any wrong. Therefore, in the facts and circumstances of the case, the Division Bench of the High Court has committed a very serious error.in ordering re-evaluation of only two candidates, namely, the original writ petitioner and original respondent No. 5 only." .
Further, in the case of Tajvir Singh Sodhivs The State Of Jammu And Kashmir decided on 28 March, 2023 in Civil Appeal Nos, 2164-2172 Of 2023, Hon'ble Apex Court has held as under :-
"12. Before proceeding further, it is necessary to preface our judgment with the view that Courts in India generally avoid interfering in the selection process of public employment, recognising the importance of maintaining the autonomy and integrity of the selection. process. The Courts recognise that the process of selection involves a high degree of expertise and discretion and that it is not appropriate for Courts to substitute their judgment for that of a selection committee. It would be indeed, treading on thin ice for us if we were to venture into reviewing the decision of experts who form a part of a selection board. The law on the scope and extent of judicial review of a selection process and results thereof, may be understood on consideration of the following case law:
~ {) In Dalpat Abasaheb Solunke vs. Dr. B.S. Mahajan, AIR 1990 SC 434, this Court clarified the scope of judicial review of a selection process, in the following words:
"9..It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the selection committees and to scrutinise the relative merits of the candidates. Whether the candidate is fit for a particular post or not has to be decided by the duly constituted selection committee which has the expertise on the subject. The court has no such expertise. The decision of the selection committee can be interfered USN 13 OA 1482/2019 with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection, or proved malafides affecting the selection etc....."
id) Ina similar vein, in Secy. (Health) Deptt. Of Health & F.W. vs, Dr. Anita Puri, (1996) 6 SCC 282, this Court observed as under as regards the sanctity of a selection process and the grounds on which the results thereof may be interfered with:
"9, ... It is too well settled that when a selection is made by an expert body like the Public _ Service Commission which is also advised by experts having technical experience and high academic qualification in the field for which the selection is to be made, the courts should be slow to interfere with the opinion expressed by experts unless allegations of mala fide are made and established.
It would be prudent and safe for the courts to leave the decisions on such matters to the experts who are more familiar with the problems they face than the courts. If the expert _ body considers suitability of a candidate for a specified post after giving due consideration to all the relevant factors, then the court should not ordinarily interfere with such selection and evaluation......."
iii) This position was reiterated by this Court in M. V. Thimmaiah vs. Union Public Servic Commission, (2008) 2 SCC 119, in the following words: . _ "24, Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The courts cannot sit as an Appellate Authority to examine the recommendations of the Selection Committee like the court of appeal. This discretion has been given to the Selection Committee only and courts rarely sit as a court of appeal to examine the selection of the candidates nor is the business of the court to examine each candidate and record its opinion...
XXX
30. We fail to understand how the Tribunal can sit as an Appellate Authority to call for the personal records and constitute Selection Committee to undertake this exercise. This power is not given to the Tribunal and it should be clearly understood that the assessment of the Selection Committee is not subject to appea! either before the Tribunal or by the courts. One has to give credit to the Selection Committee for making their assessment and it is not subject to appeal. Taking the overall view of ACRs of the candidates, gne may be held to be very good and another may be held to be good. If this type of interference is permitted then it would virtually amount that the Tribunals and the High Courts have started sitting as Selection Committee or act as an Appellate Authority over the selection. It is not their domain, it should be clearly understood, as has been clearly held by this Court in a number of decisions..."
iv)Qm PrakashPoplai and Rajesh Kumar Maheshwari vs. Delhi Stock Exchange Association Ltd. (1994) 2 SCC 117, was a case where an appeal was filed before this Court challenging the selection of members to the Delhi Stock Exchange on the ground that the Selection Committee formed for the aforesaid purpose, arbitrarily favoured some candidates and was thus, against Article 14. This Court rejected the allegation of favouritism and bias by holding as under: . Vo "5, ..the selection of members by the Expert Committee had to be done on the basis of an objective criteria taking into consideration experience, professional 'qualifications and similar related factors. In the present cases, we find that certain percentage of marks were allocated for each of these factors, namely, educational qualifications, experience, US 14 OA 1482/2019 ' financial background and knowledge of the relevant laws and procedures pertaining to public issues etc. Of the total marks allocated only 20 per cent were reserved for interviews. Therefore, the process of selection by the Expert Committee was not left entirely to the sweet-will of the members of the Committee. The area of play was limited to 20 per cent and having regard to the fact that the members of the Expert Committee comprised of two members nominated by the Central Government it is difficult to accept the contention that they acted in an unreasonable or arbitrary fashion......" 12.1. Thus, the inexorable conclusion that can be drawn is that it is not within the domain of the Courts, exercising the power of judicial review, to enter into the merits of a selection process, a task which is the prerogative of and is within the expert domain of a Selection Committee, subject of course to a caveat that if there are proven allegations of malfeasance or violations of statutory rules, only in such cases of inherent arbitrariness, can the Courts intervene.
Thus, Courts while exercising the power of judicial review cannot step into the shoes of the Selection Committee or assume an appellate role to examine whether the marks awarded by the Selection Committee in the viva-voce are excessive and not corresponding to their performance in such test. The assessment and evaluation of the performance of candidates appearing before the Selection Committee/Interview Board should be best left to the members of the committee. In light of the position that a Court cannot sit in appeal against the decision taken pursuant to a reasonably sound selection process, the following grounds raised by the writ petitioners, which are based | on an attack of subjective criteria employed by the selection board/interview panel in assessing the suitability of candidates, namely, (i) that the candidates who had done their post-graduation had been awarded 10 marks and in the viva-voce, such PG candidates had been granted either 18 marks or 20 marks out of 20. (ii) that although the writ petitioners had performed exceptionally well in the interview, the authorities had acted in an arbitrary manner while carrying out the selection process, would not hold any water.
APP POR PETERS DORE ESHOO HONDA P EB ENS Danae
13. The next aspect of the matter which requires consideration is the contention of the writ petitioners to the effect that the entire selection process was vitiated as the eligibility criteria enshrined in the Advertisement Notice dated 5th May, 2008 was recast vide a corrigendum dated 12th June, 2009, without any justifiable reason. In order to consider this contention, regard may be had to the following case law:
i)in Manish Kumar Shahi vs. State of Bihar, (2010) i2 SCC 576, this Court authoritatively declared that having participated in a selection process without any protest, it would not be open to an unsuccessful candidate to challenge the selection criteria subsequently.
ii) In Ramesh Chandra Shah vs. Anil Joshi, (2013) 11 SCC 309, an advertisement was issued inviting applications for appointment for the post of physiotherapist. Candidates who failed to clear the written test presented a writ petition and prayed for quashing the advertisement and the process of selection. They pleaded that the advertisement and the test were ultra vires the provisions of the Uttar Pradesh Medical Health and Family Welfare Department Physiotherapist and Occupational Therapist Service Rules, 1998.
After referring to a catena of judgments on the principle of waiver and estoppel, this Court did not entertain the challenge for the reason that the same wauld not be maintainable after participation in the selection process. The pertinent observations of this Court are as under:
"24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was beir.g made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."1 OA 1482/2019
6.1 In light of the aforesaid proposition of law laid down by the Hon'ble Apex Court, the present OA is devoid of merit and is dismissed. No costs.
7] {AnindoMajumdar) (Manish Garg} Administrative Member Judicial Member sl a ini Prag ae We 3 e § 3t-
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