Central Administrative Tribunal - Delhi
Anoop Kumar Yadav vs M/O Labour on 13 March, 2023
Item 35
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1835/2017
This the 13th day of March, 2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Mr. Anoop Kumar Yadav,
S/o Shri Ram Bihari Yadav,
Group 'B'
Post: Assistant Provident Fund Commissioner
R/o Flat No-908/Type-III,
Central Excise Colony,
Vibhuti Khand, Gomti Nagar,
Lucknow, Uttar Pradesh. ...Applicant
(By Advocate:Mr. Mohd Faisal)
Versus
1. Union Public Service Commission,
Through Secretary,
Dholpur House,
Shahjahan Road,
New Delhi 110069.
2. The Union of India through
The Secretary, Ministry of Law & Justice
(Department of Legal Affairs)
Shastri Bhawan, New Delhi-1
3. Nitesh Kumar
SKE 807, Shipra Krishna Vista,
Indirapuran,Ghaziabad-101010
4. Shivanshu Rajput
Plot No.28, Shriramkripa Estate
Mainauatimaazadnagar KANPUR-208002
2
O.A. No.1835/2017
5. Praveen Kumar
13/23/50-D, Dr Prem Prakash Srivastava,
Ramaanand Nagar, Near Bajrang Chauaraha
Allahpur, Allahabad, UP-211006
6. Manoj Prabhu P
64/1, Sadayar ST 2, Gounder Colony,
Velur Road, Tiruchengode, Namakkal,
Tamilnadu-637211
7. Abhilash Kumar
1400, I Floor, I 'A' Main Road, Vijaynagar,
Bangalore-560040.
8. Shubham Ashok Kashyap
13, Adarsh Nagar, Parola,
DITT - JALGAON,
Maharashtra.
9. Prem Prakash
S/o Vishwanath Singh,
Near Raju Shop,
New Saket Nagar,
Hinoo Ranchi,
JHARKHAND-834002
10. Sarvanakumar R
C/O Lt. Col. TCB Nair,
1/1516, 'SHILPA'
Near Indian Express,
East Hill Road,
Calicut,KERALA-673005
11. JERIN DAVID M
AP-712, 1ST FLOOR,
H-BLOCK, 1ST STREET,
12th MAIN ROAD,ANNANAGAR,
CHENNAI-40
12. SIDHAARTH A
A-30, RAAGAA APTS, 6TH AVENUE,
ASHOK NAGAR,CHENNAI-600083
13. SATYA PRAKASH27 NO. CIVIL LINES,
IN FRONT OF DHOLA MARU HOTEL,
3
O.A. No.1835/2017
CIVIL LINES,BIKANER
14. ANIKET ANIL AMEDKAR
AT-POST: PALI,
GANESH NAGAR, TAH SUDHAGAD,
DISTRICT-RAJGAD,PIN-410205
15. ANIL KUMAR
400-A, GALI NO-7, JAWAHAR NAGAR,
HISAR HARYANA-125001
16. VINOD KUMAR
S/O ASHOK KUMAR SHAH
OPPOSITE TO SBI, BOUNSI STATION ROAD,
POST - BOUNSI, BANKA,
BIHAR-813104 ...Respondents
(By Advocate:Mr. S.M. Arif with Mr. S.M.Aatif &
Ms. Shabnam Perween for R-1)
ORDER (ORAL)
In the present OA, the applicant seeks the following relief(s) :-
"(A) To direct the Respondent No.1 to revaluate the answer sheet of the Petitioner according to the answer provided by Economic survey 2015-16.
(B) To direct the Respondent No.1 to appoint the Petitioner to the Post of Assistant Provident Fund Commissioner as per the correct evaluation of the answer.
(C) To Direct the Respondent No.1 and No.2 to constitute such expert committee in order to ascertain the correctness of the disputed question and its correct answer.
(D) To pass such other order as this Hon'ble Court may deem fit and proper in the interest of justice."
2. Based on the above prayer made, the sum and substance of the argument of the applicant is that in the event the question no.49 is ordered to be re-evaluated 4 O.A. No.1835/2017 by an Expert Committee, he would have fallen in the the zone of consideration and would be entitled for appointment as per the merit list. The present case pertains to examination for recruitment to the post of Assistant Provident Fund Commissioner dated 10.01.2016. He would further argue that despite representation dated 12.08.2016 the same has not been dealt with in the manner prescribed under law by the competent authority of the respondents. He further relies upon the decisions rendered in Kanpur University and Others Vs. Samir Gupta And Others (1983)AIR(SC)1230; State of Uttar Pradesh and Others Vs. Samir Gupta and Others (Civil Appeal No's.40684091 and 40824115 of 1983:-
"16. Shri Kacker, who appears on behalf of the University, contended that no challenge should be allowed to be made to the correctness of a key answer unless, on the face of it, it is wrong. We agree that 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 corrected and the key answer is incorrect."
3. He also relies upon paras 10 & 11 of the judgment passed by the Hon'ble Apex Court in Manish Ujwal and 5 O.A. No.1835/2017 Others Vs. Maharishi Dayanand Saraswati University and Others. The said paras 10 & 11 read as under :-
"10. The High Court has committed a serious illegality in coming to the conclusion that "it cannot be said with certainty that answers to the six questions given in the key answers were erroneous and incorrect". As already noticed, the key answers are palpably and demonstrably erroneous. In that view of the matter, the student community, whether the appellants or intervenors or even those who did not approach the High Court or this Court, d cannot be made to suffer on account of errors committed by the University. For the present, we say no more because there is nothing on record as to how this error crept up in giving the erroneous key answers and who was negligent. At the same time, however, it is necessary to note that the University and those who prepare the key answers have to be very careful and abundant caution is necessary in these matters for more than one reason. We mention few of those; first and paramount reason being the welfare of the student as a wrong key answer can result in the merit being made a casualty. One can well understand the predicament of a young student at the threshold of his or her career if despite giving correct answer, the student suffers as a result of wrong and demonstrably erroneous key answers; the second reason is that the courts are slow in interfering in educational matters which, in turn, casts a higher responsibility on the University while preparing the key answers; and thirdly, in cases of doubt, the benefit goes in favour of the University and not in favour of the students. If this attitude of casual approach in providing key answers is adopted by the persons concerned, directions may have to be issued for taking appropriate action, including disciplinary action, against those responsible for wrong and demonstrably erroneous key answers, but we refrain from issuing such directions in the present case.
11. The second counselling for the admission abovementioned, we are informed, is fixed from 25-8-2005, onwards. We direct re-evaluation of all the questions by feeding correct answers, as abovenoticed, and on that basis correct number of marks obtained by all the students should be assigned and their ranking prepared. This exercise shall be completed within a period of three days from today. List so prepared shall be put on internet soon thereafter as also be published in the newspapers wherein it was earlier published. The second counselling and admissions hereinafter in the medical and dental courses in the State of Rajasthan in 6 O.A. No.1835/2017 government colleges as also in the private colleges insofar as the State quota is concerned would be made on the basis of ranking as per the list which will now be prepared by the b University pursuant to the directions of this Court. The merit list shall be prepared for the same number of students as it was prepared earlier while declaring the results on 22-5-2005 and 23-5-2005.
4. He also relies upon Haryana Public Service Commission Vs. The State of Haryana & Ors.(SLP (C) No.30800 of 2018) and also draws attention to Rajesh Kumar Vs. State of Bihar 2014 SCC 17.
5. Per contra, learned counsel for the respondents vehemently opposes the grant of relief and submits that the final result for Recruitment to 170 Posts of Assistant Provident Fund Commissioner in the Employees Provident Fund Organisation was declared vide Notice of result No.F.No.1/58(13)/2015/R-IV/SPC- II dated 09.06.2016. He submits that the applicant has failed to secure requisite cut-off marks for final selection and his name was placed in the Reserve Panel at Sr. No.53.
6. Learned counsel for the respondents further submits that the applicant has stated that he had represented vide letter dated 12.08.2016 against the Answer Key of Question No.49 of Set-A of Recruitment Test held on 10.01.2016 for the 170 Posts of Assistant 7 O.A. No.1835/2017 Provident Fund Commissioner, EPFO. The said representation was duly considered and replied by the Commission vide letter dated 14.09.2016, clarifying that the Question as well as the Answer Keys for the paper were prepared by a team of experts and reviewed by experts.
7. Learned counsel for the respondents would further submit that the Hon'ble Tribunal vide its Order dated 24.05.2017 had dismissed OA No. 1835/2017 filed by the applicant herein on merit, at the admission stage itself.
8. The relevant portion of the aforesaid Order dated 24.05.2017 passed by the Hon'ble Tribunal is reproduced here-under:-
"This OA has been filed seeking the following relief:-
(A) To direct the respondent No.1 to revaluate the answer sheet of the Petitioner according to the answer provided by Economic Survey 2015-16.
(B) To direct the Respondent No.1 to appoint the Petitioner to the Post of Assistant Provident Fund Commissioner as per the correct evaluation of the answer.
(C) To direct the Respondent No.1 and 2 to constitute such expert committee in order to ascertain the correctness of the disputed question and its correct answer.
(D) To pass such other order as this Hon'ble Court may deem fit and proper in the interest of justice.8 O.A. No.1835/2017
2. Briefly the facts of the case are that the applicant participated in an examination conducted by UPSC for the Post of Assistant Commissioner, Employees Provident Fund Organisation in the Ministry of Labour and Employment advertised vide Advertisement No.52/2015. According to him, he obtained 246.09 marks in the OBC Category and was put in the reserve panel. Being surprised by his result, he rechecked his answers and found that the respondents have erred in evaluating Question No. 49 of Set-A. While the correct answer based on Economic Survey 2015-16 was Option "D", the respondent No.1 has taken Option-"A" to be correct answer. The applicant submits that in case this question is re-evaluated, his name would figure in the list of selected candidates. He submitted a representation to the respondents on 12.08.2016. However, without replying to his representation, the respondents have gone ahead with issuing the appointment letters to the selected candidates. The selected candidates have since been appointed and are undergoing their probation period.
3. We have heard learned counsel for the applicant. It was not disputed by him that the respondents UPSC had first published a model answer key and invited objections to the same. Thereafter, final answer key was also published. In our opinion, all the candidates have been provided one opportunity to point out any discrepancy that may have existed in the model answer key. After taking into account all the objections received, the respondents have evaluated the answer sheets of the candidates based on the final answer key. If further opportunity were to be allowed to candidates to raise objections on the evaluation process, no selection can ever the finalised, as such process will go on endlessly. Moreover, this Tribunal does not have the expertise to decide which option would constitute right answer for the question about which dispute has been raised.
4. We also find that the applicant has approached this Tribunal after having participated in the selection process and taking his chances in the same. He has approached us after the selection has been finalised and selected candidates appointed. Hon'ble Supreme Court in the case of Madras Institute of Development Studies Vs. K. Sivasubramaniyan, (2016) 1 SCC 454 has laid down that a candidate, who has participated in the selection process, cannot be permitted to question the same after being declared unsuccessful. In this judgment, several judgments of the Apex Court on the same issue have also been noted.
5. In view of the aforesaid, we do not find any merit in this OA and dismiss the same in limine."
9O.A. No.1835/2017
9. Being aggrieved of the same, the applicant herein had filed WP(C) No. 6045/2017, before the Hon'ble High Court of Delhi. The Hon'ble High Court vide Order dated 19.07.2017, disposed off WP(C) No. 6045/2017 filed by the applicant herein at admission stage.
10. The relevant portion of the aforesaid Order dated 19.07.2017, passed by the Hon'ble High Court is reproduced as under:-
"Notice.
Mr.Naresh Kaushik, Advocate accepts notice for respondent no.1 and Mr.L.C. Singhi, Advocate accepts notice on behalf of respondent no.2/UOI. Considering the order that we propose to pass, we do not consider it necessary put respondent nos.3 to 16 on notice since they were not served before the Tribunal. The submission of learned counsel for the petitioner is that the Tribunal has passed the impugned order dated 24th May, 2017 in OA No.1835/2017 at the preliminary stage of hearing itself without issuing notice to the respondents. He submits that the Tribunal proceeded on the incorrect assumption that the UPSC first issued model answer key and invited objections to the same whereafter the final answer key had been published. The Tribunal rejected the OA by incorrectly observing that in its opinion, all the candidates had been provided one opportunity to point out any discrepancy in the model answer key and that after taking into account all the objections received, the respondents had evaluated the answer sheets of the candidates based on the final answer key.
Mr.Kaushik, learned counsel for the respondent no. 1 has pointed out that since no notice had been issued to the respondents, the correct factual position could not placed before the Tribunal.
In view of the aforesaid, we consider it appropriate to set aside the impugned order and remand the matter back to the Tribunal. The Tribunal shall hear the matter afresh. We make it clear that we have not made any observation on the 10 O.A. No.1835/2017 merits of the dispute. With the aforesaid observation, the petition stands disposed of."
11. We have heard the learned counsel for the parties and perused the record as well as case laws cited by the learned counsel for the applicant.
12. It is seen from the record that no other candidate has challenged the selection process till date. We are in the year, 2023 and the Recruitment process pertains to year 2016. The pleadings go to show that the questions were framed by an Expert Committee and have been dealt with in the manner prescribed under law.
13. Learned counsel for the respondents has placed reliance on para 3 & 4 of the Order passed before remand i.e. order dated 24.05.2017, when the OA itself was dismissed in limine. The matter had been taken up in Writ Petition (C) No.6045/2017 where directions were passed remanding the matter back.
14. It is well settled law that evaluation of answer- sheet is the discretion vested with the Expert Committee. In the present scenario, and the submission of appointing Independent Expert Committee at this belated stage is untenable in law. The questions had been framed based on the Expert Committee's opinion only.
11O.A. No.1835/2017
15. In para 8 of the counter affidavit, the respondents have categorically brought out that the representation of the applicant was duly considered and replied to by the Commission vide letter dated 14.09.2016 clarifying that the question as well as the Answer keys for the paper were prepared by a team of experts and reviewed by experts.
16. The learned counsel for the applicant would say that though it has been mentioned in the pleadings in the counter that the representation is replied but the same is not produced on record in this OA.
17. In a recent judgment titled The Arunachal Pradesh Public Service Commission & Another Vs. Miss Hage Mamung & Others (Civil Appeal No.350/2023 decided on 20.01.2023), the Hon'ble Apex Court has held as under :-
"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 12 O.A. No.1835/2017 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.
6. As per clause 38(v) of the Guidelines 2017, where in the question in the examination paper itself is wrong and thus could not possible be evaluated to have correct answer, 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.
7. In view of the above and for the reasons stated above, the impugned judgment order passed by the 13 O.A. No.1835/2017 Division Bench of the High Court is unsustainable and the same deserves to be quashed and set aside. Accordingly, the present appeal is allowed. The impugned judgment and order passed by the Division Bench of the High Court ordering re- evaluation of the papers of respondent No.1 and respondent No. 4 herein is hereby quashed and set aside and the judgment and order passed by the learned Single Judge dismissing the writ petition preferred by respondent No.1 herein is hereby restored. No costs."
18. In view of the discussion above especially the fact that the Questions as well as the Answer Keys had been prepared by a team of experts and reviewed by a team of experts, the present OA is dismissed being devoid of merit.
19. No order as to costs.
(Manish Garg) (Anand Mathur) Member (J) Member (A) 'uma'