Central Administrative Tribunal - Jabalpur
Deepak Kumar vs M/O Defence on 24 July, 2024
OA No. 540 of 2017
Reserved
(On 03.05.2024)
CENTRAL ADMINISTRATIVE TRIBUNAL
JABALPUR BENCH
JABALPUR.
Jabalpur, this Wednesday, the 24th day of July, 2024
Hon'ble Mr. Justice, Akhil Kumar Srivastava, Member (A)
Hon'ble Mr. Kumar Rajesh Chandra, Member (A)
Original Application No. 540 of 2017
1. Deepak Kumar, S/o Shri Surya Prasad, a/a 30 yrs, R/o Q.
No. 3023, New Colony, Type II, Sector II, GCF Estate,
Jabalpur - 482001.
2. Satish Kumar Pathak, S/o Shri Jagdish Prasad Pathak, a/a
31 yrs. R/o Q. No. 3050, Type III, Sector II, New Colony,
GCF Estatek Jabalpur - 482001.
. . .Applicants
By Adv: Shri Akash Choudhery
VERSUS
1. Union of India through National Academy of Defence
Production, through its Sr. Principal Director, Ambajhari,
Nagpur - 440021.
2. Ordnance Factory, Board, through its Chairman, 10 A,
Shahid Khudiram Bose Marg, Kolkata - 700001.
3. The General Manager, Gun Carriage Factory, Jabalpur -
482001.
. . . Respondents
By Adv: Shri N.K. Mishra
1
OA No. 540 of 2017
ORDER
By Akhil Kumar Srivastava, Member (J) The instant OA has been filed by the applicants to direct the respondents to re-evaluate the answer scripts of the applicants of General Engineering paper on the basis of correct answer key and on the basis of the authenticated documents submitted by the applicants and to grant appropriate marks to the applicants on the correct answers upon re-evaluation.
2. The brief facts of the case are that the applicants appeared for the post of Junior Works Manager (JWM) in the Limited Departmental Competitive Examination (LDCE), 2015-16 conducted by the respondent authorities pursuant to the advertisement notification dated 10.01.2015. The applicants did exceptionally well and were hoping to get success in the said examination. However, the applicants were shocked and surprised to see that they were declared unsuccessful in the General Engineering Paper of the examination conducted for the appointment to the post of JWM under the Limited Departmental Competitive Examination (LDCE) quota. That, upon verification it was revealed that the applicant No. 1 is not awarded appropriate marks for the question Nos. 27, 83, 89 and 93, as a result of 2 OA No. 540 of 2017 which the applicant was declared unsuccessful by the respondent authorities. The applicant No.1 was awarded 33.50 marks thereby declaring him to be unsuccessful qua the benchmark of 35 marks. That, the applicant no. 2 was not awarded appropriate marks for question numbers 20, 27, 44, 89 and 93 and was declared unsuccessful by the respondent authorities as he was awarded 33.75 marks. It is worth mentioning here that, if the aforesaid questions are evaluated in a correct manner and not on the basis of the faulty model answers prepared by the respondent authorities, then the applicants will get the minimum qualifying marks which is 35 out of 100 in the General Engineering paper.
3. The respondents have filed their reply wherein they submit that the instant Original Application challenging the result dated 30/05/2016 published by the Director General Ordnance Factory, Kolkata. In the said result names of the applicants do not appear and they were declared "failed". The applicants have appeared in LDCE for the promotion of JWM. The applicants being Chargeman were supposed to get 40% marks in aggregate and 35% marks in the individual subject to get the promotion to the post of JWM. However, on 30/05/2016 the results were declared in which the applicant No. 1 was shown failed as the applicant got 3 OA No. 540 of 2017 1.5 marks less in the subject called General Engineering paper. That the applicant no. 2 was shown failed as the applicant got 1.25 marks less in the subject General Engineering paper. The applicant declared failed in the LDCE. Their names could not find place in the merit list prepared by the exam, hence, they could not be promoted. There is no illegality on the part of respondents and request to dismiss the OA.
4. They further submit that for the purpose of conduct of the aforementioned LDCE Examination the respondent No. 4 i.e. Principal Director/NADP had authorized one Exam Agency/Exam Vendor for preparation of Question Papers as well as Model-Key Answers, evaluation of the answer sheets (OMR Sheets) and forwarding of results. Hence, the respondents have no role either in preparation of Question Papers, Model-Key Answers and evaluation of the answer sheets (OMR Sheets)/assessments or determination of marks awarded to the candidates. The promotion order is as per select list prepared by the exam vender/exam agency. The applicants have not impleaded Exam conducting agency who had been entrusted with the responsibility of assessment of the OMR sheets bases on key-answers decided by themselves. As a result, the respondents are not in a position 4 OA No. 540 of 2017 to counter whatever allegations that have been raised by the applicants with regard to the assessment of their answer sheets, since the assessment was not done by them in the first place.
5. In addition to the above, they further submit that it is a well settled law that the Court cannot take upon itself the task of the examiner. In H.P. Public Service Commission vs. Mukesh Thakur & another (C.A. 907 of 2006) in Hon'ble Apex Court has observed as under :-
"12. In the facts and circumstances of the aforesaid case, three basic questions arise for consideration of this Court :- (i) As to whether it is permissible for the court to take the task of Examination/Selection Board upon itself and examine discrepancies and inconsistencies in the questions paper and valuation thereof...
14. It is settle legal position that the court cannot take upon itself that task of the Statutory Authorities...
19. In view of the above, it was not permissible for the High Court to examine the question paper and answer sheets itself, particularly, when the Commission has assessed the inter-se merit of the candidates. If there was discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for respondent's No. 1 only. It is a matter of chance that the High Court was examining the answer sheets relating to law. Had it been other subject like physics, chemistry and mathematics, we are unable to understand as to whether such a court could have been adopted by the High Court.
20. Therefore, we are of the considered opinion that such a course was not permissible to the High Court."
7. The applicants have filed rejoinder reply wherein they reiterate the same contents as stated in the OA. They further submits that the applicants by way of filing the present OA are not 5 OA No. 540 of 2017 challenging any particular order but are challenging the inaction of the respondent authorities in conducting erroneous evaluation on the basis of faulty model answer paper prepared by the respondents. They further submitted that that the respondents in their reply have washed all their hands over any responsibility whatsoever by stating that the Applicants have not impleaded the agency which conducted the exam, Further, they have stated that they are not in a position to counter the allegations of the applicants as the assessment has not been done by them. The applicants placed reliance on the judgment of Hon'ble Supreme Court in the case of Rajesh Kumar vs. State of Bihar, 2013 (4) SCC 690, which deals with the cases where the valuation has been done on the basis of a faulty Model Answer Key. Moreover, the irresponsible reply of the Respondent deserves to be depreciated try this Tribunal.
8. Heard learned counsel for the parties and perused the pleadings and documents available on record.
9. Learned counsel for the applicants, during the course of argument, supplied copy of one order passed by this Tribunal in Original Application No.200/1124/2014 dated 30.07.2016. He submitted that similar is the controversy involved in the present 6 OA No. 540 of 2017 Original Application and, therefore, same order may be passed in the present O.A.
10. In the present case also, the applicants have raised objections regarding award of marks to them. It is their contention that the answers as per the Model Answer Sheet are defective while the applicants have given correct answers. We find that instead of redressing the grievances of the applicants, the respondents have shifted their liability to exam conducting agency and evaded themselves to take any responsibility. We also note the fact that there is no denial on behalf of the respondents regarding the applicants' contentions and, as such, we have no other reason to believe with the reasoning given by the applicants. In any case, this Tribunal has already considered and decided the similar issue in Original Application No.200/01124/2016 and while placing reliance on a judgment of Hon'ble Supreme Court in the case of Rajesh Kumar (supra) as also the order passed by the Madras Bench of this Tribunal in the matter of V.Rajkumar vs. Union of India and others, Original Application No.706 of 2014 decided on 07.04.2016, it has been observed as under:
"9. In the instant case also it is seen that whereas the applicant had raised specific queries and made allegations that his two 7 OA No. 540 of 2017 questions were wrongly given no marks, by placing reliance on various documents, the respondents have failed to consider his representation. In the instant case also the mere fact that the question booklets were prepared by experts and the answers were 'duly checked' is not sufficient to prove that the claim of the applicant is wrong and the answers were correct.
10. Considering the above scenario, the Madras Bench of the Tribunal in the case of V.Rajkumar (supra) held that the right course of action in such cases, would be for the Competent authority to refer the representation to the experts who had set the question paper and provided the answer keys and call for their comments. Alternatively, the authorities could have referred the matter to an independent body of experts with a view to verifying the claim of the applicant. In the event of the experts admitting to certain errors or validating the claim of the applicant, it would be incumbent on the authorities to revisit the whole issue with a view to neutralising the effect of such erroneous evaluation leading to undeserved / unfair inclusion and exclusion of candidates in the final select list. Neither of the options seems to have been exercised in the instant case by the respondents, even after receipt of representation of the applicant.
11. The Hon'ble Supreme Court in the matter of Rajesh Kumar (supra) has held thus:
"15. ....The writ petitioners, it is evident, on a plain reading of the writ petition questioned not only the process of evaluation of the answer scripts by the Commission but specifically averred that the "model answer key" which formed the basis for such evaluation was erroneous. One of the questions that, therefore, fell for consideration by the High Court directly was whether the "model answer key" was correct. The High Court had aptly referred that question to experts in the field who, as already noticed above, found the "model answer key" to be erroneous in regard to as many as 45 questions out of a total of 100 questions contained in 'A' series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same could be no different. The Division Bench of the High Court was, therefore, perfectly justified in holding that the result of the examination insofar as the same periained to 'A' series question paper was vitiated. This was bound to affect the result of the 8 OA No. 540 of 2017 entire examination qua every candidate whether or not he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view. entitled to mould the relief prayed for in the writ petition and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key"
12. Since in the instant case also the applicant had raised specific queries and made allegations that his two questions were wrongly given no marks, by placing reliance on various documents, the respondents should have considered & decided his representation. Thus, the action of the respondents in not considering the claim of the applicant is wholly unjustified and unsustainable and, therefore, the present Original Application is liable to be allowed.
13. We are fortified in above view with our decision given in a similar matter in the case of Ajay Kumar Tiwari Vs. Union of India and others, Original Application No.200/00187/2015 decided vide order dated 11.04.2018.
14. In the result, the Original Application is allowed. The respondents are directed to refer the matter of the applicant to a small committee of experts to be constituted by them for this purpose, along with all relevant materials. Based on the report of the Committee, necessary action shall be taken and the respondents shall, thereafter, pass a speaking order on the representations/action taken as per law and apprise the same to the applicants. This whole exercise shall be completed by the respondents within a period of three months from the date of communication of this order. No costs."
11. In view of the analogy made in the order quoted above, we also dispose of this Original Application in similar terms with a further direction to the respondents to refer the matters of the applicants to a small committee of experts to be constituted by them for this purpose, along with all relevant materials and based 9 OA No. 540 of 2017 on the report of the Committee, necessary action be taken as per law. This exercise shall be completed within a period of three months from the date of receipt of a copy of this order. No order as to costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Member (A) Member (J)
am
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