Central Administrative Tribunal - Mumbai
Central Administrative Tribunal vs The Union Of India on 5 March, 2013
1 OA No.495/2012 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION No.495/2012 DATED OF DECISION: 05.03.2013 CORAM : HON'BLE SHRI JUSTICE A.K. BASHEER, MEMBER (J). HON'BLE SHRI R.C. JOSHI, MEMBER (A) Shri Anand S. Lokde, R/at G-2, Plot No.31, Shiv Shakti Apartment, Shiv Ganga Nagar, Ambernath (E) 421 501. ... Applicant (By Advocate Shri S.V. Marne) VERSUS 1. The Union of India, Through the General Manager, Western Railway, Head Quarters Office, Churchgate, Mumbai 400 020. 2. Chief Personnel Officer, Western Railway, Head Quarters Office, Churchgate, Mumbai 400 020. ... Respondents (By Advocate Shri S. Ravi) O R D E R (Oral) Per: Shri R.C. Joshi, Member (A)
In this Original Application the applicant is aggrieved that he has been illegally held to be declared as 'Not qualified' in the selection for promotion to the post of Assistant Commercial Manager when his name was not included in the list containing names declared vide dated 14.10.2011.
2. Briefly, the applicant presently working as Chief Goods Clerk, Western Railway, Jogeshwari had 2 OA No.495/2012 appeared for selection for promotion to the post of Assistant Commercial Manager in Western Railway against LDCE quota. The selection consisted of a written test, viva-voce and consideration of the record of service. It is the applicant's case that the name of the Applicant was not included in the list of successful candidates in the written test declared on 14.10.2011. He obtained a copy of answer sheets under RTI Act and it was noticed that the answers had been correctly given by him in respect of 3 objective type questions, which although were correctly replied, had been marked as incorrect and, therefore, the applicant was prejudiced as he had not been given any marks. The applicant had requested for revaluation of his answer sheets which refused by the respondent. Hence this Original Application.
3. Applicant in his pleadings has pointed out that Respondents had issued a notification for holding a limited Departmental Competitive Examination against 30% vacancies for promotion to 'Group B' Post of Assistant Commercial Manager published on 21.03.2011 (Annexure A-3). The selection for the post of Assistant Commercial Manager consisted of holding a written test, viva-voce and considering the record of service. The written test consisted of 2 papers each carrying 150 marks and was held on 31.07.2011 in which applicant had 3 OA No.495/2012 participated. The result of the written test was published on 14.10.2011 and the Applicant found his name to be excluded from the list of successful candidates in the written test. He, therefore, requested for supply of copy of the answer sheets vide his application dated 21.10.2011 under the RTI Act. The Respondents, however, continued with holding of the viva-voce test and declared the result of the successful candidates vide dated 28.11.2011. Further vide letter dated 28.11.2011, the marks secured by all the candidates appearing in the written test and viva-voce were published and the Applicant was reported to have secured 89 marks in Paper 1 and 108 marks in Paper 2. The applicant has secured 65.66% marks in both the papers put together. In the meantime, the applicant had also received the answer sheets under the Right to Information Act, 2005 on 16.12.2011 which revealed that in Paper 1, the applicant while replying to Question 1 (d) had initially wrongly mentioned the full form of UNESCO which he subsequently scored out and immediately below that he wrote the correct answer again. However, during the evaluation of the answer sheet, no marks were given for the said answer. Further, in reply to Question No.1(f), the applicant states that in response to the full form of 'MMRDA', the applicant had correctly written the full form Mumbai 4 OA No.495/2012 Metropolitan Region Development Authority but the Evaluator had circled the word Region and did not award any marks to the said answer. The applicant has enclosed a copy of Section 3 of the Mumbai Metropolitan Region Development Authority Act, 1974 under which MMRDA was established at Annexure A-7 to strengthen his argument. Further, in reply to Question 4 (c)(i) the candidates were asked to write Short Notes on Rule 10 Working Knowledge of Hindi. The applicant had replied that under Rule 10 of the Official languages Rules 1976, if an Employee declares that he has working knowledge of Hindi, then it is presumed that he has working knowledge of Hindi. The applicant aggrieved that this answer ought to have been given some marks out of 5 marks assigned to this question. The applicant has also pointed out to Question No.1 (A)(iii) of Part B were the candidates were required to state as to whether the statement that Ticket Checking earnings are part of Sundry Earnings was True or False. The applicant answered the said question as False. However, answer was marked to be incorrect. It is the case of the applicant that under para 1229 of Indian Railway Commercial Manual (Volume-I), the earnings which are included in Sundry Earnings are specified and do not include the Ticket Checking Earnings. It has also been mentioned that in accordance with provisions 5 OA No.495/2012 contained in para 212 read with 704 of Indian Railway Commercial Manual, the earnings towards Excess Fare Tickets issued by ticket checking staff to passengers travelling without proper tickets are to be accounted under 'Other Coaching Traffic' head. Similarly under the Indian Railway Finance Code, Sundry Earnings are listed in abstract 'Z' which does not include ticket checking earnings. On the contrary, in Coaching Earnings are listed in abstract 'X' and Ticket Checking Earnings are included in Coaching Earnings. It is, therefore, applicant's contention that Ticket Checking Earnings are not part of Sundry Earnings and, therefore, the answer given by the applicant to this question was correct.
4. The Applicant had made several representations vide dated 30.12.2011, 31.01.2012, 16.04.2012, 19.04.2012 and 29.05.2012 requesting for revaluation of his answer sheets and to declare him as qualified. It is the applicant's contention that after noticing the genuine errors in evaluation, the Personnel Department sent the answer sheet of the applicant for revaluation to the evaluator but the evaluator had neglected to reevaluate the applicant's answer sheet. The Respondents had also written to the Railway Board on 09.04.2012 that despite existence of genuine errors in evaluation, there is no provision under the Rules for Revaluation of answer sheets.
6 OA No.495/2012The Respondents, therefore, requested the Railway Board to issue guidelines to deal with such cases.
5. The applicant has sought the following reliefs:
a. This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same quash and set aside the Result of Written Test dated 14.10.2011 and Panel dated 28.11.2011 to the extent of non-inclusion of name of the Applicant therein.
b. This Hon'ble Tribunal may further be pleased to hold and declare that the Applicant as Qualified in the Written Test and direct the Respondent to subject the Applicant to further process of selection consisting of viva-voce and assessment of service record and if found fit include his name in the Panel dated 28.11.2011 and promote him to the post of Assistant Commercial Manager w.e.f. 28.11.2011 with all consequential benefits. c. Costs of the application be provided for.
d. Any other and further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed.
6. We have gone through the pleadings, carefully perused the case papers and have extensively heard the rival sides.
7. We have carefully gone through the information obtained by the Applicant under the RTI Act. A perusal of documents enclosed reveals that there is considerable merit in the contentions raised by the Applicant. A reference 7 OA No.495/2012 to 'Part A' of the answer sheet reveals that applicant while replying to Question at 1(d) had scored off the full form written earlier of UNESCO and had rewritten it correctly, which was not marked by the Evaluator. Further in reply to the Question in Part A at 1(f), the full form of 'MMRDA' has been correctly written as Mumbai Metropolitan Region Development Authority. A perusal of the copy of the full form of MMRDA as Mumbai Metropolitan Region Development Authority is evident from a perusal of the provisions contained in Maharashtra Regional and Town Planning Act, 1966 under which the Mumbai Metropolitan Region Development Authority Act, 1974 has been established. We are convinced that contention raised by the Applicant deserve consideration as can be seen from the provisions contained in the Mumbai Metropolitan Region Development Authority Act, 1974.
8. Yet another grievance raised by the applicant pertains to the reply given by the applicant to Question 4 (c) (i) which reads thus:( C) Rajbhasha:
Write short notes on any Three (5x3 =15) 15 marks i. Rule 10 Working Knowledge of Hindi. ii. .................................... iii. .................................... iv. .................................... This question asks the candidates to write short notes on Rule 10 regarding working knowledge of Hindi.8 OA No.495/2012
This question is, therefore, not very specific and the applicant while answering this question has written that as per Rule 10 of the Official languages Rules 1976, if an Employee says that he has working knowledge of Hindi, then it is presumed that he has working knowledge of Hindi. We have perused the Written Statement filed by the respondents and it has been mentioned therein that the answer given by the applicant was found sketchy by the Evaluator, hence the answer was taken as 'not attempted'. It further states that Rule 10 of Rajbhasha Niyam mentions the detailed conditions regarding working knowledge of Hindi and there are specific conditions mentioned compared to which the answer written has been found to be superficial. The Respondents have, therefore, attempted to justify that the answer given by the candidate did not deserve awarding of any marks. We, however, do not agree with the contention of the respondents in this context as the question itself appears to be very vaguely drafted and. therefore, are of the view that as the question itself was not very specific, the applicant's contention merits consideration.
9. On the question No. 1(f), a perusal Written Statement filed by the Respondents reveals that the applicant's handwriting was not clear and while going through the answer, it could be read as Reejion, due 9 OA No.495/2012 to which no marks was given to the applicant. We strongly disagree with the respondents contention, as the perusal of the reply given by the applicant against this question very clearly reveals that the applicant's handwriting is very clear and he has correctly spelled the word as 'Region' and not as 'Reejion' as mentioned by the respondents in their Written Statement.
10. We have also considered the issue relating to the answer given by the applicant in reply to the question at 1(A)of Part B, where the question asked was Question 1(A) State whether True or False (5x1 =5).
i) .............................
ii) .............................
iii) Ticket Checking earnings are part of Sundry earnings.
iv) .............................
v) .............................
The answer given by the Applicant that Ticket Earning are part of Sundry was 'false'. It has been pleaded by the Applicant that giving the details of para 1229 of Indian Railway Commercial Manual (Volume- I) of para 212 read with 704 of Indian Railway Commercial Manual and abstract 'Z' of Indian Railway Finance Code, justifying the answer given to the said question as false. The respondents have not controverted the contention raised by the applicant in the Written Statement.
10 OA No.495/201211. In view of the above, we are convinced that the grievance of the applicant needs to be addressed by the Respondent. It is also seen that the applicant has preferred representations vide dated 30.12.2011, 31.01.2012, 16.04.2012, 19.04.2012 and 29.05.2012 requesting the Respondents to reevaluate his answer sheets. It is also seen from the reply given by the Railway Board vide dated 09.10.2012 that in cases where irregularities in 70% Selection/30% LDCE (including irregularities in evaluation of answer sheets) have been established, corrective action may be taken in terms of instructions contained in Board's letter dated 08.09.2005.
12. In view of the above and in the interest of justice, we are convinced that the grievances of the Applicant would be resolved if Respondent No.1 & 2 are directed to consider the representations preferred vide dated 30.12.2011, 31.01.2012, 16.4.2012, 19.4.2012 and 29.5.2012. Respondent No.1 is, therefore, directed to consider and take a decision on the representations preferred by the applicant strictly on their merit and in accordance with law as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this order. Needless to mention that Respondent No.1 shall afford sufficient opportunity to the Applicant to be heard in person before any decision is taken in the matter.
11 OA No.495/201213. The Original Application is disposed of with the above directions. No order as to costs. (R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J) dm.