DEPARTMENTAL EXAM....A BALLANT CASE ,,HOW TO FAIL ANY CANDIDATE,,,, AT THE WISH OF ....? CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH CIRCUIT SITTING : BILASPUR Original Application No.909 of 2013 Bilaspur, this Friday, the 21st day of November, 2014 SHRI G.P.SINGHAL, ADMINISTRATIVE MEMBER SHRI ARVIND J. ROHEE, JUDICIAL MEMBER Ram Kumar Yadav, s/o Shri Nandilal Yadav, Aged about 33 years, working as Sr. Clerk, Under o/o Dy. Chief Material Manager, GSD, S.E.C. Railway, Raipur Division, Raipur 492004 (MS). -Applicant (By Advocate Shri B.P.Rao) V e r s u s 1. Union of India through : The General Manager, S.E.C.Railway, Bilaspur Zone, G.M.Office, Bilaspur 495004 (CG) 2. The Dy. Chief Material Manager (Stores), S.E.C.Railway, Raipur Division, General Stores Deptt., Raipur 492004. -Respondents (By Advocate Shri Vijay Tripathi) (Date of reserving order : 18.11.2014) O R D E R By Arvind J.Rohee (Judicial Member)- The applicant has impugned the order dated 17/19.1.2013 (AnnexureA-13) passed by the respondent No.2 thereby rejecting his representations dated 7.6.2013 (Annexure A-10) and 18.6.2013 (AnnexureA-11) for antedating promotion to the post of Senior Clerk w.e.f.19.7.2011, from which date his juniors were so promoted. 2. The applicant joind the Railways as Group D employee on 20.9.2004. He secured promotion to the post of Junior Clerk in the year 2009 in the pay scale of Rs.5200-20200 with grade pay of Rs.1900/-. In pursuance of the notification issued by the respondents to fill up 10 posts of Sr. Clerk in the pay scale of Rs.5200-20200 with grade pay Rs.2800/- (classifying 8 unreserved, and one each for Scheduled Caste and Scheduled Tribe categories) under the control of respondent No.2. The applicant, having completed two years of service as Jr. Clerk, was eligible to appear in the written examination by virtue of the Establishment Rules dated 28.11.2005 (Annexure A-1). He therefore applied and was allowed to appear in the said examination, which was held on 3.6.2011. Result of the said examination was declared on 19.7.2011 vide Annexure A-3, wherein out of 10 candidates who appeared in the examination; only 7 were declared successful. The applicant was declared as failed. 3. The applicant was confident that he correctly answered the questions in the examination. He, therefore, submitted a representation dated 20.7.2011 (Annexure A-4) to the respondent No.2, making a request for re-evaluation of his Answer Sheet. Consequently, he submitted application under Right to Information Act on 25.10.2011 to the concerned authority, seeking copy of the Answer Sheet. The same was accordingly supplied to him by the Assistant Personnel Officer-cum-Assistant Public Information Officer vide reply dated 23.11.2011 (Annexure A-5), comprising of 22 pages. However, the applicant has produced the front sheet indicating marks allotted to him in Part A and Part B of question paper. He secured 47 marks only. As per rules, since the qualifying marks were 50 out of 100, the applicant did not qualify the said examination. After perusing the Answer Sheet, the applicant found that some answers were not evaluated at all. He, therefore, forwarded a letter dated 10.1.2012 (Annexure A-6) to the Chief Personnel Officer, South East Central Railway, Bilaspur, making a grievance about it, since according to him he answered the un-evaluated questions correctly. In pursuance of the request made, the respondents revaluated the Answer Sheet of the applicant. However, its copy was not initially forwarded to him and by a letter dated 15.4.2013 (Annexure A-7) from Chief Material Manager to Assistant Public Information Officer/Senior Public Relation Officer, copy of which was endorsed to the applicant, it was informed that the issue of supply of copy of re-evaluation Answer Sheet of the applicant is under consideration with the higher authorities, and hence at present its copy cannot be supplied. Subsequently, by the office letter dated 24.5.2013 (Annexure A-8) ofthe Chief Material Manager-cum-Public Information officer, copy of the Answer Sheet was supplied to the applicant, from which it was disclosed that the applicant has in fact secured 59 marks out of 95, after evaluation of the left out answers. The applicant, has therefore, qualified the said examination. 4. In the meantime, the respondents have issued another notification dated 9.4.2013 (exhibit Annexure A-9) declaring 11 candidates including the applicant as eligible to appear in the written examination to be held on 30.04.2013 to fill up vacant posts of Sr. Clerk. It is stated that the applicant appeared in the said examination, qualified it, and was appointed on the said promotion post of Sr. Clerk in the year 2013. On receiving copy of the re-evaluated Answer Sheet, the applicant submitted a representation dated 7.6.2013 (Annexure A-10) to the respondent No.2, with a request to issue necessary office order granting promotion to him on the said post of Sr. Clerk w.e.f.19.7.2011 when the other successful candidates of first examination dated 3.6.2011 were so appointed. He forwarded another representation on 18.6.2013 (Annexure A-11) by way of reminder to the previous representation. Since no order was passed by the respondents, the applicant approached this Tribunal in O.A No.672/2013, seeking the necessary relief. The said OA was disposed of by the order dated 21.8.2013 (Annexure A-12) with a direction to the respondents to decide the two pending representations (Annexure A-10 & A-11), within a specified time limit. The same was accordingly considered and by the impugned order dated 17/19.10.2013 (Annexure A-13), it was rejected mainly on the ground that there is no provision in the rules for re-evaluation of the Answer Sheet. and the same was inadvertently done by the office of the respondent No.2. 5. Aggrieved by the impugned order, the applicant again approached this Tribunal challenging the same on the following grounds; viz: (a) Because, as on the date of 19.7.2011 when the Respondents considered Applicants juniors for the post of Senior Clerk, the applicant was also fulfilled all eligibility criteria and he was also participated in the Written Examination, but his Answer Sheet was wrongly assessed thus he was awarded only 47 out of 100 marks, but on re-evaluation the marks have been issued i.e, awarded to 59 marks out of 100 i.e, more than desired 50% and since there is 3 vacant posts lying vacant as on 19.7.2011, therefore, Applicant is entitled for his promotion as Sr. Clerk at par with his juniors as on 19.7.2011. (b) For the mistake committed by the Respondents in wrongful assessing the Applicants Answer Sheet, the Applicant was incorrectly denied from the post of Sr. Clerk, which was revaluated subsequently and now he can be compensated with the said loss by way of placing him as Sr. Clerk w.e.f.19.7.2011 at par with his Juniors, and there is no logic in denying the said benefit to the Applicant. (c) The contentions of the Respondents No.2 is not acceptable, that there was no rule for re-evaluation of Answer Sheet, if it was so then the Respondents ought to have taken due action against the concern officials who concluded the Re-evaluation of Applicants Answer Sheet. The Question of Re-evaluation was arise since the Original Examiner has incorrectly assessed the Answer Sheet, and on finding the marks have been increased in the Re-evaluation, then the Respondents instead to take due action against the Original Examiner for is improper valuation of answer sheet, treated the said re-evaluation was against the rules, and again deny the Applicant from the benefit of Promotion to the post of Sr. Clerk at par with his juniors. (d) Once marks have been increased in the Re-evaluation and Applicant became eligible for promotion, then he should be given that benefit at par with his juniors who were promoted in the year 2011, it is also not a case of the Respondents, that there was no vacancy of the year 2011 remained now, out of 10 vacancies only 7 candidates were finally selected, thus there were clear vacancy where Applicant can be adjusted. Further, Applicant was promoted as Sr. Clerk, in the year 2013, therefore, there is no question of holding any review selection committee etc, it is only a case of notional seniority benefits to be given to the Applicant from 19.7.2011 at par with his juniors, which is illegally and incorrectly denied by the Respondents by way of their incorrect decisions and by their impugned letter, which can not be in the interest of justice. (e) In support of their contentions, the Respondents have not relied upon any Circular or Rule of the Railway Board which prevents for re-evaluation of Answer Sheet of a Selection from Jr. Clerk to Sr. Clerk selection, therefore, their baseless reply is having no force and liable to be set aside. 6. On the above grounds, the applicant has sought the following reliefs: 8.1 That, the Honble Tribunal be pleased to allow the O.A and by calling entire relevant records from the possession of Respondents for its kind perusal to decide the Applicants grievance. 8.2 That, the Honble Tribunal be pleased to pass an Order, setting aside the impugned letter dated 17/19.10.2013 (Annexure A-13) in the interest of justice. 8.3 That, the Honble Tribunal be pleased to decide the grievance of the Applicant and pass an order directing the Respondents to consider and promote the Applicant from the year 19.7.2011 at par with his juniors. 7. On notice, the respondents appeared and by a common reply dated 7.1.2014 admitted the factual position right from appearance of the applicant in the first written examination, declaring him unsuccessful in it and then holding re-evaluation of his Answer Sheet on his request and forwarding copies of both Answer Sheets and rejecting his representation. It is specifically stated that there is no provision in the rules for re-evaluation of the Answer Sheets. However, inadvertently, the office of the respondent No.2 re-evaluated the Answer Sheet of applicant, resulting in enhancement of marks to the extent of 59 out of 95. Therefore, the same cannot be considered to declare the applicant successful in the said examination dated 3.6.2011. For this reason, the relief sought by the applicant for antedating his promotion to the post of Sr. Clerk w.e.f.19.7.2011, when other successful candidates of the first written examination were so appointed, cannot be granted. The O.A, is therefore, liable to be dismissed and it cannot be said that the impugned order has been passed without application of mind and that the same is arbitrary, improper or illegal. The applicant, has therefore, no case, for another reason also that he was already promoted after qualifying the second written examination and is presently working as Sr. Clerk. 8. On 18.11.2014, we have heard the oral submission of Shri B.P.Rao, learned Advocate for the applicant and reply arguments of Shri Vijay Tripathi, learned Advocate for the respondents on merit. We have carefully perused the pleadings of the parties and the various documents relied upon by the applicant in support of his contentions. FINDINGS 9. It is obvious from record that the only controversy involved in this O.A is whether re-evaluation of Answer Sheet is permissible, and if so, whether antedated promotion to the applicant can be granted. As stated earlier, all other factual position is not disputed. The learned Advocate for the respondents submitted that in absence of specific rule permitting re-evaluation of the Answer Sheet, the same is not permissible and since it was inadvertently allowed by the respondent No.2, and on its basis, although the applicant is stated to have secured 59 marks, the same will have to be ignored and the previous decision of declaring him disqualified since failed to secure 50% marks in the first examination will have to be confirmed. In this respect, he referred the contents of provision of Para 2(iii) and (iv) of the reply and further submitted that the representations were rightly rejected since the applicant cannot claim parity with those selected earlier. 10. It is true that the statutory rules dated 28.11.2005 (Annexure A-1), issued by the Railways under the caption, procedure for conducting suitability test for the post classified as non-selections posts, it contains various clauses/paragraphs, viz; zone of consideration, suitability test, application of reservation, mode of suitability, scrutiny of service record and ACRs/working report, benchmark for written test for Jr. Clear to Sr. Clerk, benchmark for trade test, reference to Indian Railways Establishment Manual and Boards circulars on the subject, and that the above rules are approved by the General Manager, South East Central Railway, and are having prospective application. It is thus obvious that there is nothing in the rules specifically permitting re-evaluation of the Answer Sheet. However, it is surprising to note that when there were only 10 candidates who appeared in previous examination with question paper containing 20 questions divided in Part A and B, now the first evaluator omitted to evaluate some questions answered by the applicant. For this purpose, it is obvious from the marks-sheet of re-evaluated Answer Sheet, which is obtained by the applicant under RTI Act and is placed on record at page No.30, below Annexure A-8, clearly shows that the marks obtained by the applicant prior to re-evaluation and thereafter are mentioned in columns. It is obvious from its close scrutiny that initially question No.1, 3 and 2 in Part A and question No.3(i)(ii)(iv), (v), (vi) and 1(i) in order of chronology were evaluated giving 47 marks to the applicant. A comparative chart of the two mark-sheets is reproduced here for ready reference: izkIrakd khV Before re-evaluation After re-evaluation Part A Part A izu dzeakd iw.kZkad izkIrakd Ikzu dzeakd iw.kZakd izkIrakd 1 10 5 1 10 5 3 10 7 2 10 5 2 10 5 3 10 7 4 10 8 5 10 4 Part B Part B 3(i) 5 3 1(i) 5 2 (ii) 5 5 3(i) 5 4 4 10 6 3(ii) 5 5 5 10 7 4 10 7 6 10 7 5 10 6 11 5 2 6 10 6 dqy izkIrakd 100 47 dqy izkIrakd 95 59 11. Both the mark-sheets clearly reveal that questions No.4 and 5 of Part A were not evaluated earlier for which the applicant was allotted 8 and 4 marks respectively out of 10 each, whereas in Part B for question No.3(i) and question No.4 for which previously 3 and 4 marks respectively were allotted on re-evaluation they were increased to 4 and 7 respectively. However, for question Nos.5 and 6 in Part B, previously 7 marks each were allotted, which however, on re-evaluation; were reduced to 6 each. Thus, on re-evaluation, 59 marks have been allotted to the applicant out of 95, and it is obvious that he has secured more than 50% of the benchmark to qualify the said examination. 12. It is obvious that at the first instance request for re-evaluation was not rejected by the respondent No.2 for the reason of absence of any specific rule. The same was done. However, it appears that later on the Head Office did not approve the same, and hence, the impugned order was passed quoting absence of specific rule permitting re-evaluation. 13. Considering the peculiar facts and circumstances of the case, and there is nothing on record to show that besides the applicant two candidates who could not qualify the first examination also applied for re-evaluation of their Answer Sheets, and further the fact that there is no specific prohibition in the rules (Annexure III) or any other circular or notification issued by the Government or Railway Board prohibiting re-evaluation, it cannot be said that the same cannot be undertaken. It is the general rule that for every written examination a chance of re-evaluation in appropriate cases is given to the examinee, who is confident that he answered the questions correctly. As stated earlier, it is found from the copy of the Answer Sheet supplied to him later on under RTI Act that some questions were not at all evaluated and in such circumstances, re-evaluation of Answer Sheet was must. Further, if re-evaluation is done, the same will remove all doubts about evaluation of the answers given by the examinee and he can be declared to have qualified the said examination, subject to result of the re-evaluation. 14. From the above reasons, we do not find any substance in the stand taken by the respondents that in absence of any rule for re-evaluation, the same cannot be done and no relief can be granted to the applicant. View taken by the respondents can safely be said to be improper and arbitrary, though not perverse. This being so, the applicants claim needs to be allowed. It is a different thing that in the subsequent examination held in the year 2013, the applicant qualified and was appointed as Sr. Clerk. However, he is justified in claiming the antedated promotion, when the other qualified candidates in previous examination were appointed w.e.f.19.7.2011. This antedating of promotion will have the effect of conferring notional seniority which will be counted for the purpose of calculating the qualifying service for further promotion. However, the applicant will not be entitled to any monatory benefit out of it in the form of back-wages, since he has not actually worked on the said post. 15. (a) In the result, the OA is allowed. (b) It is hereby declared that the applicant is entitled to be promoted as Sr. Clerk w.e.f.19.7.2011, when the other selected candidates of the previous examination were so appointed. (c) The respondent No.2 is directed to include the name of the applicant in the Seniority List of Sr. Clerk maintained by the respondent No.2 at appropriate slot w.e.f.19.7.2011 and shall publish the revised/modified seniority list for the information of all other employees. (d) The respondent No.2 shall also pass the appropriate office in respect of antedating the promotion of the applicant w.e.f.19.7.2011, within a period of four weeks from the date of receipt of copy of this order. (e) In the facts and circumstances of the case, the parties are directed to bear their respective costs of this O.A. (Arvind J. Rohee) (G.P.Singhal) Judicial Member Administrative Member am 9 OA No.909 /2013 Page 9 of 9
Posted on: Tue, 20 Jan 2015 06:51:15 +0000
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