Central Administrative Tribunal - Jabalpur
Micky Saxena vs M/O Railways on 2 August, 2018
Sub: Promotion through Departmental Examination OA No.200/00995/2012
1
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
JABALPUR
Original Application No.200/00995/2012
Jabalpur, this Thursday, the 2nd day of August, 2018
HON'BLE SHRI NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE SHRI RAMESH SINGH THAKUR, JUDICIAL MEMBER
Mickey Saxena S/o Shri N.S. Saxena, Aged about 26 years
Occupation: Service Senior Booking Clerk Railways
Resident of C/129 Alkapuri Ratlam MP 457001 -Applicant
(By Advocate -Shri Abhijeet A Awasthi)
Versus
1. Union of India through Secretary,
Ministry of Railways, New Delhi-110001,
(DELETED)
2. Divisional Railways Manager, Western
Railways, Do Batti, Ratlam MP PIN 457001
3. Senior Divisional Personnel Officer/DRM (Establishment)
Western Railways Do Batti, Ratlam MP 457001
4. O.P. Pathak, Senior Divisional Personnel Officer/
DRM (Establishment), Western Railways Do Batti
Ratlam MP 457001
5. Assistant Personnel Officer, Western Railways
Do Batti Ratlam MP 457001
6. Babar Qureshi, Commercial Inspector (Advertisement)
Western Railway, Do Batti, Ratlam, MP-457 001
(DELETED) - Respondents
(By Advocate -Shri Arun Soni for official respondents
Shri Gautam Prasad for Respondent No.6)
(Date of reserving the order: 08.02.2018)
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Sub: Promotion through Departmental Examination OA No.200/00995/2012
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ORDER
By Navin Tandon, AM:-
The applicant is aggrieved by denial of promotion to the post of Commercial Inspector (Railways). Hence, this Original Application has been filed.
2. At the outset we may mention that in this Original Application, promotion of one Babar Qureshi, Commercial Inspector Western Railway Ratlam, was objected to by the applicant and said Babar Qureshi was also made as private respondent No.6 in this Original Application. However, at the time of hearing the learned counsel for the applicant submitted that he is willing to abandon his relief with respect to respondent No.6 and accordingly he prayed that respondent No.6 may be deleted from the array of respondents. He also submitted that he is pressing relief mentioned in relief clause 8.2 and requested for deletion of relief clause 8.1 to the extent it relates to respondent No.6. Shri Gautam Prasad, learned counsel who appeared for respondent No.6 had no objection for his deletion from the array of respondents. Accordingly the aforementioned prayer of the applicant was allowed vide order dated 08.02.2018. Therefore, in this order we will deal other prayer/pleadings raised by the applicant except the pleadings against respondent No.6.
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3. The brief facts as stated by the applicant are that he was posted as Senior Booking Clerk at Railway Station, Ratlam. On 11.01.2011, a notification (Annexure A-1) was issued by the respondent-railways inviting applications for two posts of Commercial Inspector (Railways). The result of the examination declared on 01.04.2011 selecting only said Babar Qureshi is attached as Annexure A-5 (wrongly written as Annexure A-4 in pleadings of para 4.5 of OA). 3.1 The applicant sought copy of the answer scripts under the Right to Information Act. The applicant submits that he was given 58 marks out of 100 and as many as 7 correct answers written by him in objective type questions have been marked as incorrect. He has filed extract of various official Railway documents in support of his claim (Colly. Annexure A-7) 3.2 The applicant has listed the 7 questions, which he feels have been answered correctly, but marked as incorrect, as under:
Q.No. 7. Write full form of the following abbreviations:
1. RITES
5. IVRS
8. RTSA
14. FOIS Answer given by the applicant to above abbreviations -
1. RITES - Rail India Technical & Economic Services
5. IVRS - Interactive Voice Response System
8. RTSA - Rail travel Service Agent.Page 3 of 15
Sub: Promotion through Departmental Examination OA No.200/00995/2012 4
14. FOIS - Freight Operations Information System. Q.No.9 Full up the blanks.
2. For reservation of a coach Rs. ....... are to be deposited.
3. Bed Roll charge is Rs. .....
5. ......Kg.luggage is free in 2AC Ticket per passenger Answers given by the applicant to above are as under-
2. Rs.50,000/-
3. Rs.20/-
5. 50 Kilograms.
3.3 The applicant submits that he filed various representations from 2011 to October, 2012 exposing the irregularities, but all his representations and legal notices were all in vain.
4. In this Original Application the applicant has prayed for the following reliefs:
"8. RELIEF PRAYED FOR: It is therefore prayed that this Hon'ble Court may kindly be pleased to:
(1) Quash the impugned order dated 01.04.2011 (Annexure P/1) as being illegal and against the fair and impartial procedure;
(2) Issue direction, directing the respondent Railway authorities to select and appoint the applicant at the post of Commercial Inspector-Railways (CMI) from 01.04.2011 and give him all salary, arrears and benefits along with seniority from the said date;
(3) Any other relief deemed fit and proper in the facts and circumstances of the case may be granted in favour of the applicant.
(4) Costs be awarded to the Applicant"
5. The respondents have raised the issue of limitation under Section 21 of the Administrative Tribunals Act, 1985 (hereinafter Page 4 of 15 Sub: Promotion through Departmental Examination OA No.200/00995/2012 5 referred to as 'the AT Act'). They submit that the result was declared on 01.04.2011 but the Original Application has been filed in November,2012, which is beyond one year period fixed in the Act. 5.1 The official respondents in their reply have submitted that copy of the answer sheet of the applicant (Annexure A-6) itself shows that the applicant got only 58% marks. It is mentioned that only those candidates who secured 60% marks in written test have been empanelled. The applicant's representation to CVC regarding irregularities has already been investigated and the Vigilance Department did not make any recommendation for cancellation or amendment of the empanelment, as stated in Headquarters office letter dated 20.03.2013 (Annexure R-1). Therefore, the applicant is not entitled for any relief sought for in this Original Application. 5.2. The official respondents by filing M.A.No.1009/2013 have submitted that the applicant appeared in subsequent selection process and got selected and promoted to the post of Commercial Inspector vide order dated 16.05.2013 (Annexure D-1) and now in these circumstances the Original Application has become infructuous and, should be disposed of as such.
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6. Heard the learned counsel of parties and carefully perused the pleadings of the respective parties and the documents annexed therewith.
7. The learned counsel for the applicant has placed reliance on the decisions of the Hon'ble Supreme Court in the matters of Kanpur University Vs. Samir Gupta, (1983) 4 SCC 309 and of the Hon'ble High Court of Madhya Pradesh in the matters of Ashish Kumar Jain Vs. Madhya Pradesh Public Service Commission, Writ Petition No.12732 of 2016 decided on 26.08.2016 and Rashid Suhail Siddiqui and others Vs. State of M.P. and another, 1994 MPLJ 731, in support of his claim.
8. On the other hand the learned counsel for the respondents placed reliance on the decision of Hon'ble High Court of Madhya Pradesh in Writ Petition No.4987 of 2016 decided on 09.08.2016 (Pankaj Dwivedi Vs. General Administration Department).
9. As regards the question of limitation, raised by the respondents as per Section 21 of the AT Act, the Original Application should be filed before the Tribunal within one year of the passing of the final order and in a case where an appeal/representation has been made, then after a period of six months is expired. The applicant has Page 6 of 15 Sub: Promotion through Departmental Examination OA No.200/00995/2012 7 submitted that in spite of his submitting various representations on the subject, no response was given by the respondents. In terms of the above provisions of the AT Act, the Original Application could have been filed before this Tribunal within a period of 18 months after passing of the impugned order. We find that the impugned order was passed on 01.04.2011 and the present Original Application was filed on 22.11.2012. Thus, there is a slight delay of about two months in filing of this Original Application, which is condoned herewith, considering the facts of the present case, wherein we find that the respondents themselves were in fault in not deciding various representations submitted by the applicant.
10. Vigilance letter dated 20.03.2013 (Annexure R-1) reads as under:
"Based on a CVC referred complaint, conduct of the said selection was investigated by this office which resulted substantiation of some of allegations fully/partially. The irregularities noticed was some incorrect answers in answer key and inconsistency in evaluation. Railway Board in consultation with CVC had advised to issue "Recorded Warning" to Charged Official. The same was implemented and a formal closure advice from Railway Board is awaited.
With regard to cancellation/amendment of selection, no such recommendation was made by Vigilance Department"
(emphasis supplied) Page 7 of 15 Sub: Promotion through Departmental Examination OA No.200/00995/2012 8 10.1 It is observed that there is a specific mention of incorrect answers in answer keys and inconsistency in evaluation, in the above mentioned letter.
11. We find that a similar issue had arisen before Hon'ble High Court of Delhi in the matters of D.P.S.Chawla Vs. Union of India and others, W.P.(C) No.6201 of 2011 decided on 24.10.2011, relevant paragraphs of the said order read thus:
"(9). It is the contention of the petitioner that the present is not a case of re- evaluation but of re-computation and of correction of a mistake.
On the said contention of the petitioner, vide order dated 26th August, 2011 (supra) the respondents were directed to file an affidavit as to whether the answer of "935-960 MHz" given by the petitioner was correct or not.
(10). The respondents in the affidavit filed have failed to controvert that the answer given by the petitioner is correct. It is however stated that total 8594 candidates had appeared in the examination and of which 1867 were declared successful on 8th July, 2008; that all answer sheets were examined in an impartial manner; that the paper setter besides the question paper had also provided an answer key; that the answer sheets were evaluated by fairly high level officers of the department who are experts in the subject; that the answer sheets were distributed to a number of evaluators all of whom were to, besides being guided by the answer key, also use their own wisdom; that the examiner is the final authority in the matter of evaluation; that the result has attained finality; that the next examination is scheduled to be held in December, 2011/January, 2012. It is however admitted by the respondents that some of the other examiners/evaluators had marked the answer (c) "935- 960 MHz" to be correct and awarded marks therefor. It is however pleaded that if the matter is to be reopened, it needs to be reopened qua all the candidates who had appeared in the examination and which is not possible as the answer sheets have since been weeded out.
Page 8 of 15 Sub: Promotion through Departmental Examination OA No.200/00995/2012 9 (11). The counsel for the respondents has also placed reliance on Pramod Kumar Srivastava Vs. Bihar Public Service Commission AIR 2004 SC 4116 and on Secretary, All India Pre-Medical/Pre-Dental Examination, C.B.S.E. Vs. Khushboo Shrivastava 2011 (9) SCALE 63 both deprecating the practice of directing re-evaluation in the absence of any provision therefor.
(12). Per contra, the counsel for the petitioner refers to Guru Nanak Dev University Vs. Saumil Garg (2005) 13 SCC 749 and to Manish Ujwal Vs. Maharishi Dayanand Saraswati University (2005) 13 SCC 744 where in the face of defects in the answer key it was held that merit should not be a causality.
(13). It is also the contention of the counsel for the petitioner and not controverted by the respondents that vacancies in the post to which the petitioner would become entitled to be promoted if declared successful, exist.
(14). The petitioner has also placed before this Court independent material to show that the answer given by him of "935-960 MHz" is the correct answer.
(15). The judgments relied upon by the Tribunal as also by the counsel for the respondents before us are relating to questions requiring essay type answers and do not relate to answers to multiple choice questions, as the subject question in the present case was. While in the evaluation of an essay type answer, subjective assessment of the examiner/evaluator assumes importance and is prohibited under the Rules, it cannot be said to be so in case of answers to multiple choice questions. In multiple choice questions, generally, there is only one correct answer and evaluation of such answers requires the examiner/evaluator to only evaluate whether the correct choice has been exercised by the examinee and if so to award marks therefor; there is no scope of controversy or possibility of different examiners awarding different marks for the correct choice exercised. In multiple choice questions, the examiner/evaluator strictly speaking is left with no role whatsoever and in fact most of the examinations with multiple choice questions have now substituted the examiners/evaluators with an Optical Mark Reader (OMR). Thus, the Rule prohibiting re- evaluation framed with respect to the essay type answers cannot be said to be applicable to the answer to multiple choice questions. (16). From the record before this Court, it is amply established that the correct answer to the question aforesaid was "935-960 MHz" as answered by the petitioner and which was placed in the question paper Page 9 of 15 Sub: Promotion through Departmental Examination OA No.200/00995/2012 10 as option (c) but in the answer key was erroneously shown as option
(b). Once, it is established that the answer is correct, the error in not giving the marks for the same, is but an error akin to a mistake / re- totaling which under the Rules (supra) of the examination also is permitted. We are therefore of the opinion that the Tribunal erred in applying the prohibition under the Rule as to re-evaluation to such a mistake also.
(17). We may notice that the Supreme Court recently in CBSE Vs. Aditya Bandopadhyay (2011) 8 SCC 497 has held the examinees to be entitled to inspection of their answer sheets under the Right to Information Act, 2005. Such right to inspection has to be given a meaning and cannot be made to be an empty exercise. Right to inspection carries with it a right to seek judicial review of error/mistake as has occurred in the present case and is intended to eliminate arbitrariness and injustice.
(18). In the present case we find injustice to have been meted out to the petitioner. Instead of being declared successful, owing to the mistake/error of the respondents themselves, he has been declared unsuccessful. This Court in exercise of powers of judicial review is not called upon to undertake any exercise of re-appreciation/re-assessment of the answer of the petitioner but to only correct the obvious mistake. We therefore are of the opinion that the power of judicial review cannot be denied in such cases.
(19). As far as the contention of the counsel for the respondents of the petitioner alone being not entitled to the benefit of the error/mistake in the answer key and it being not possible to re-evaluate of answer sheets of others is concerned, we have before this Court the case of the petitioner only who has been agitating the same since the declaration of the result. No other candidate is stated to be so pursuing the matter. Moreover, the answer sheets having been reported to have been weeded out, the possibility of grant of relief to petitioner opening flood gates of litigation by others also does not arise".
12. On perusal of the above order of Hon'ble Delhi High Court we find that after considering the decision of the Hon'ble Supreme Court in the matters of H.P.Public Service Commission Vs. Mukesh Thakur & another, AIR 2010 SC 2620, (supra), Hon'ble Delhi High Page 10 of 15 Sub: Promotion through Departmental Examination OA No.200/00995/2012 11 Court has held that where powers of judicial review is not called upon to undertake any exercise of re-appreciation/re-assessment of the answer of the petitioner but to only correct the obvious mistake, judicial review cannot be denied in such cases.
13. We find that the present case is fully covered by the decision of 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, relevant paragraphs of which read thus:
"(2). Learned counsel for the applicant draws attention to Annexure A-13 document by which an elaborate representation was made by the applicant pointing out that the answer keys for several of the questions were wrong and a request was made to reconsider the valuation on the basis of correct answers. By Annexure A-18, the representation was disposed of stating that OFIL Avadi had intimated that OFIL Khamaria had informed that the question papers of LDCE-CM 2013 were set up by the Experts of that particular subject. Before publishing the question booklets and the answer sheets set wise, their respective answers were duly checked. Also, the latest amended information was followed while setting the question paper.
(3). It is seen that whereas the applicant had raised specific queries and made allegations that the answer keys were wrong, the disposal of representation does not at all go into such specifics. For example, Question No.2 in Labour Accounting and Factory Accounting, was posed as follows:
'The object of maintaining Cost Card is :' A. Calculating earning of Piece work Page 11 of 15 Sub: Promotion through Departmental Examination OA No.200/00995/2012 12 B. Calculating the cost of Product of an item C.Cost Ascertainment and Cost control D. None of these.
The answer given by the petitioner was "C" which was correct as per Office Manual VI. However, the key answer as per LAFA answer key is "B". Even though the learned counsel elaborately took us through every question that had allegedly been provided an incorrect answer key, we mention only the above as a sample.
(4). In view of the above, 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. If the answer keys were incorrect as alleged by the applicant, it would be against the principles of natural justice to exclude him for marking the really correct answers.
(5). 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 and therefore, the impugned order at Annexure A-18 cannot be sustained. The same is accordingly quashed and set aside.
(6). The respondents are directed to refer the representation at Annexure A-13 of the application dated 13.12.2013 followed by representation dated 02.01.2014 and 12.1.2014 Annexure A-14 and A-16 as well as the relevant answer keys Page 12 of 15 Sub: Promotion through Departmental Examination OA No.200/00995/2012 13 to a small committee of experts to be constituted by them for this purpose. 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 applicants.
(emphasis supplied by us) 13.1 The Madras Bench of the Tribunal in the case aforementioned case of V.Rajkumar 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.
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14. The Hon'ble Supreme Court in the matter of Rajesh Kumar and others Vs. State of Bihar and others, (2013) 4 SCC 690 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 pertained to 'A' series question paper was vitiated. This was bound to affect the result of the 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".
15. In the instant case also we find that in support of the correct answers given by the applicant he has annexed some documents as Page 14 of 15 Sub: Promotion through Departmental Examination OA No.200/00995/2012 15 Annexure A-7 colly. However, we are strained to observe that in reply to the specific query raised by the applicant in this regard in his Original Application, the respondents have not given their specific reply.
16. 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.
17. 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 applicant. 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.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
rkv
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