Central Administrative Tribunal - Delhi
Rupesh Kumar Maan vs M/O Railways on 8 November, 2023
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Item No. 79 (C-4) O.A. No. 3246/2016
WITH
O.A. No. 1280/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 3246/2016
WITH
O.A. No. 1280/2017
This the 08th Day of November, 2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
O.A. No.3246/2016
1. Rupesh Kumar Maan, Aged - 31 years,
S/o Sh. Chander Pal Singh
R/o V.P.O. Sinouli, Tehsil Badaut,
Distt. Baghpath (U.P.)
2. Rajendra Kumar, Aged - 35 years,
S/o Sh. Rampal Singh,
R/o V.P.O. Sinouli, Tehsil Badaut,
Distt. Baghpath (U.P.)
3. Praveen Kumar, Aged -26 Years,
S/o Sh. Rajbir singh,
R/o V.P.O. Dhikana, Tehsil Badaut,
Distt. Baghpath (U.P.)
4. Pravendra Kumar, Aged- 25 Years,
S/o Sh. Jagpal Singh,
R/o V.P.O. Gaidabra, Tehsil Badaut,
Distt. Baghpat (U.P.)
5. Pravendra Kumar, Aged - 33 years,
S/o Sh. Rajinder Singh
R/o V.P.O. Lohari, Tehsil Badaut,
Distt. Baghpat (U.P.)
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Item No. 79 (C-4) O.A. No. 3246/2016
WITH
O.A. No. 1280/2017
6. Chander Prakash, Aged - 35 Years,
S/o Sh. Munni Lal,
R/o V.P.O. Madapur, Post Borla,
Distt. Aligarh (U.P.)
....Applicants
(By Advocate : Mr. Nilansh Gaur )
VERSUS
1. Union of India through the General Manager,
Northern Railway, Baroda House, New Delhi
2. The Chairman
Railway Recruitment Cell,
Lajpat Nagar-I, New Delhi - 24
.... Respondents
(By Advocate : Mr. Ramjan Khan with Mr. Yogesh Kr.
Mahur and Mr. Harkesh Parashar )
O.A. No. 1280/2017
1. Dheerjanand Joshi, Age 35 years
S/o Sh. R.C. Joshi, Group C,
R/o House No F-26
Street No 10, Brahampuri
Delhi - 110053
....Applicants
(By Advocates : Mr. Vishwapal Singh with Mr. Ashutosh
Bhardwaj )
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Item No. 79 (C-4) O.A. No. 3246/2016
WITH
O.A. No. 1280/2017
VERSUS
1. Union of India through the General Manager,
Northern Railway, Baroda House, New Delhi
2. The Chairman
Railway Recruitment Cell,
Lajpat Nagar-I, New Delhi - 24
.... Respondents
(By Advocates : Mr. Ramjan Khan with Mr. Yogesh Kr.
Mahur and Mr. Harkesh Parashar )
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Item No. 79 (C-4) O.A. No. 3246/2016
WITH
O.A. No. 1280/2017
ORDER (ORAL)
By Hon'ble Mr. Manish Garg, Member (J) Learned counsel for the applicant in OA No.3246/2016 submits that this matter was remanded back by the Hon'ble High Court vide order dated 09.04.2019 to rehear the OA. Relevant part of the said order reads as under:-
"6. We, accordingly, set aside the impugned orders in the aforesaid writ petitions and remand the cases back to the Tribunal for re- hearing and re-consideration. We again emphasize that the Tribunal should deal with the matter more seriously and the orders pased by it should not reflect a sense of casualness in the matter of dealing with the submissions of the parties. A litigant, who approaches the Tribunal, goes to the Tribunal in the hope that he would be granted a fair and complete hearing and his submissions would be dealt with competence and due application of mind. No Judicial Officer should forget his obligation of his calling and the fact that he is answerable to the litigant while dealing with the case."
2. Learned counsel for the applicant while opening his arguments in the present matter contends that even though the order was passed by the Tribunal on 27.02.2019, it was remanded back on the issue that four answers in the answer key were incorrect and as a result the applicant have been deprived of four marks and 5 Item No. 79 (C-4) O.A. No. 3246/2016 WITH O.A. No. 1280/2017 incorrect marking has also affected the case of the applicant in the merit position in the selection process.
3. For better appreciation of the fact of the case, learned counsel for the applicant draws our attention to para 4.12, wherein it has been stated that on going through the answer key, the applicants came to know that in respect of more than five question, in the answer key wrong answers has been given and due to these five wrong answers, the applicants have been awarded less marks and also marks have been deducted on account of negative markings. Particulars of wrong answers are as under:-
S. Q.No. 'A' Anser as Correct Material on the basis of No. Series per Ans. answer as correct answer stated Key per books
1. 4 C D As per General Books, Extract annexed in the OA as Annex. A/4
2. 15 A D As per General Books, Extract annexed in the OA as Annex. A/4
3. 98 B A As per General Books, Extract annexed in the OA as Annex. A/4
4. 100 B A As per General Books, Extract annexed in the OA as Annex. A/4 5 62 in 'D' B A As per General Books, Series Extract annexed in the OA as Annex. A/4
4. All the applicants have given correct answer as stated above and therefore, they have been awarded 4 less marks 6 Item No. 79 (C-4) O.A. No. 3246/2016 WITH O.A. No. 1280/2017 and marks has also been deducted on account of negative marking. Therefore, after granting 4 marks and after restoration of negative marks, all the applicant will become entitled to be appointed, they have been denied appointment due to obtaining lesser marks in respect of cut of marks.
5. He further relies upon the decision rendered in the following judgments:-
(i) Richal & Ors. Etc. Etc. Vs. Rajasthan Public Service Commission & Ors. Etc. Etc. decided on 03.05.2018 by the Hon'ble Supreme Court. Relevant part of the said judgments reads as under:
"The key answers prepared by the paper-setter or the examining body is presumed to have been prepared after due deliberations. To err is human. There are various factors which may lead to framing of the incorrect key answers. The publication of key answer is a step to achieve transparency and to give an opportunity to candidates to assess the correctness of their answers. An opportunity to file objections against the key answers uploaded by examining body is a step to achieve fairness and perfection in the process. The objections to the key answers are to be examined by the experts and thereafter corrective measures, if any, should be taken by the examining body. In the present case we have noted that after considering the objections final key answers were published by the 7 Item No. 79 (C-4) O.A. No. 3246/2016 WITH O.A. No. 1280/2017 Commission thereafter several writ petitions were filed challenging the correctness of the key answers adopted by the Commission. The High Court repelled the challenge accepting the views of the experts. The candidates still unsatisfied, have come up in this Court by filing these appeals."
6. Learned counsel for the applicants would contend that the present case is not the case of revaluation as stated by the respondents in their counter affidavit, it is clear that answers in the answer key provided by the respondents are wrong. He would contend that in the first round of litigation with the intervention of the Court the said answer key was supplied pursuant to which the representation was made before the Competent Authority which has not been disposed of till date. O.A. No. 1280/2017
7. Learned counsel for the applicant states that the applicant has requested to various authorities several times for providing a copy of official answer key used by respondents. The answer key was eventually provided to him vide covering letter dated 04.08.2016 which reached the applicant only on 10.09.2016. The applicant came to know that in respect of two questions, in the answer key 8 Item No. 79 (C-4) O.A. No. 3246/2016 WITH O.A. No. 1280/2017 wrong answers has been given and due to this the applicant have been awarded less marks and negative marks have also been deducted. Particulars of wrong answers are as under:-
Q.No. Answer as Correct Material on the S. No. per Ans. Key answer as basis of correct per books answer stated
1. 2 A B As per General Books, Extract annexed in the OA as Annex.
A/4
2. 49 A C As per General Books, Extract annexed in the OA as Annex.
A/4
8. The applicant had given correct answers as stated above and therefore, he has been awarded 2 less marks and also deducted negative marks. If the applicant is granted these 2 marks and after restoration of negative marks, he will become entitled to be appointed, as he has been denied appointment due to less than marks in respect of cut of marks. He would rely upon the following judgments:-
(i) Rajesh Kumar & Ors. etc. versus State of Bihar & Ors.
(2013) 5 SCC 690;9
Item No. 79 (C-4) O.A. No. 3246/2016 WITH O.A. No. 1280/2017
(ii) Kanpur University Vs. Samir Gupta & Ors. (1983) 4 SCC 309;
(iii) Abhijeet Sen & Ors. States of Uttar Pradesh (1984 AIR 1402);
(iv) Manish Ujjwal versus Maharshi Dayanand Saraswati (2005) 13 SCC 744;
(v) Guru Nanak Dev University Versus Saumil Garg & Ors. 2005 (13) SCC 749;
(vi) D.P.S Chawla versus Union of India (2011) SCC ONLINE DEL 4520;
(vii) Vikas Pratap Singh versus State of Chattisgarh (2013) 14 SCC 494;
(viii) Richal & Ors. versus Rajasthan Public Service Commission & Ors. (Civil Appeal No. 4695-4699 of 2018).
9. Learned counsel for the respondents states that the selection process has been over long back and if the Tribunal interfere in the same, it will cause prejudice to the candidates who has already been selected, joined, are not before this Tribunal and are also not party to the OA. Learned counsel for the respondents specifically contends 10 Item No. 79 (C-4) O.A. No. 3246/2016 WITH O.A. No. 1280/2017 in OA No. 1280/2017 that the matter is hopelessly barred by the issue of limitation.
10. We have heard the learned counsel for the parties and perused the records available before us.
11. The present case has been taken up after an order of remand passed by the Hon'ble High Court. After taking note of submissions made by the respective parties, for better appreciation, we find if the present OA is allowed and some directions are issued qua the question paper and answer key and the error apparent, the applicants will have a chance to be on the merits and would be above the cut off marks in their respective categories.
12. We are of the prima facie view that there is no substance in the arguments put forth by learned counsel for the respondents inasmuch as the answer key is concerned. The answers given by the applicants appear to be correct as per the plain reading of the questions and materials placed on record.
13. We also observe that in catena of decision rendered by the Hon'ble Apex Court it has been consistently held 11 Item No. 79 (C-4) O.A. No. 3246/2016 WITH O.A. No. 1280/2017 that the Tribunal is not an expert to go into the veracity of the questions. However, we rely upon the decision rendered by a co-ordinate Bench of this Tribunal in OA No.2986/2018 dated 23.03.2023. Relevant paras of the same read as under:-
"11. We are acutely aware of our limitations as also the confines of our powers and responsibilities. No matter how much knowledgeable we maybe, we cannot assume the role of academic experts. Therefore, in the normal course, we should not be raising any question with respect to the competence and the expert opinion rendered by the academic experts especially, when it comes to the determining what a correct answer in an examination would be.
12. However, for the reasons stated herein, we deem to take a divergent view and be more rationale recognizing that the facts and circumstances of the instant matter are quite clear.
xxxxx
16. Now, it is obvious that the experts too could go wrong sometimes or perhaps differ from each other. We also take note of the fact that Question Number 157 which is the subject of this OA is not a question which refers to an "opinion" but is a "fact of science". Therefore, how could experts differ is a bit intriguing. There is no reason for us to question, the description of transverse and longitudinal waves in the NCERT Textbook and this is the book on which the vast multitude of students rely upon."12
Item No. 79 (C-4) O.A. No. 3246/2016 WITH O.A. No. 1280/2017
14. However, keeping in view the facts and circumstances of the case and the answers relied upon by the applicants are plain and simple and will lead to a logical conclusion that their stand is correct. However, since the matter pertains to examination of the year 2013, we cannot lose sight that the others would also be affected.
15. Keeping in view the aforesaid preposition and also the decision dated 23.03.2023 in OA No.2986/2018 rendered by a Co-ordinate Bench of the Tribunal and also in view of the fact that the representation is also pending before the competent authority which has not been disposed of by passing a reasoned and speaking order, we deem it fit and appropriate to dispose of this OA by directing the Competent Authority amongst the respondents to prefer the case of the applicants regarding the aforesaid questions and answers to an Expert Committee to be constituted in the respective field to assess the correctness of the questions put forth by the applicant and the answer key as supplied by the respondents. Based on the decision of the Expert Committee to be constituted by the Competent Authority amongst the respondents and in the event the 13 Item No. 79 (C-4) O.A. No. 3246/2016 WITH O.A. No. 1280/2017 Expert Committee report finds favour to the answers given by the applicants, the Competent Authority shall take an appropriate call on the same. It is further directed that upon receipt of the recommendation of the expert committee the applicants' merits shall be re-casted and re- drafted accordingly and the applicants are found to be within the zone of consideration subject to fulfilling the terms and conditions states in recruitment rules, they shall be issued offer of appointment.
16. The Expert Committee shall give its report within a period of two months from the date of receipt of a certified copy of this order and if found eligible the applicants shall be issue offer of appointment within forty five days' thereafter.
17. It is made clear that the present case shall not be taken as precedent as this order has been passed in the peculiar facts and circumstances. It is further made clear that the applicant shall not be entitled to any seniority to the last selected candidate in the respective category. 14
Item No. 79 (C-4) O.A. No. 3246/2016 WITH O.A. No. 1280/2017
18. With the above directions, the Original Application stands disposed of accordingly.
19. No order as to costs.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/sm/