Anil Kumar Singh vs The Union Of India & Ors.

In pursuance of notification issued by respondent no. 4 for promotion through selection under 20% Limited Departmental Competitive Examination (LDCE) quota for one post of Junior Engineer (Telecomm) in the Pay Band of Rs. 9300-34800/- GP 4200, the applicant, a Technician-I (Telecomm), appeared in the written examination held on 06.01.2012 along with 12 other candidates.

It is submitted that in the said examination, mode of selection was only through written examination and record of service. The written examination was to be conducted in the form of testing professional ability in two papers, i.e. Paper-I for 100 marks and Paper-II for 50 marks while record of service carried 30 marks.

The applicant has contended that before publication of the written examination, the competent authority considered the representations of the applicant dated 01.03.2011 and 14.12.2011 (Annexures- A/1 & A/2) against his Grading ‘Good’ in ACR for the period 2009-10 and vide order dated 12.03.2012 (Annexure-A/3) the grading ‘Good’ has been upgraded to ‘Outstanding’ in his ACR for the period 2009-10. The same was duly communicated to the respondent no. 4 as well as to the applicant. It is further contended that consequent upon upgradation of ACR for the period 2009-10 to Outstanding and the ACR for the period 2008-09 and 2010-11 being also ‘Outstanding’, the applicant was placed under the zone of consideration for the said promotion/selection.

The applicant has further submitted that earlier he was allotted 125 marks out of total marks of 150 in the written examination and 26 marks in record of service (125+26= 151 total marks). The marks in record of service was subsequently enhanced to 30 after upgradation of ACR making the total marks secured by him as 155 (125+30), whereas respondent no. 7 secured a total of 151 marks (123+28).

It is alleged by the applicant that since the respondent no. 4 was very much interested to grant promotion to respondent no. 7 he instead of issuing promotion order in favour of the applicant cancelled the said examination vide letter dated 15.03.2012(Anneuxre-A/4) taking the plea that recognized employees Union are intervening in the matter which, according to the applicant, is far from truth.

The applicant challenged the above order dated 15.03.2012 before this Tribunal in OA No. 282 of 2012. During the pendency of this OA the applicant sought his answer sheet and that of respondent no. 7 under RTI Act which was supplied to him vide letter dated 29.05.2012 (Annexure-A/6 Series). Looking at the same answer sheet, the applicant raises suspicion regarding marking of the answers which resulted into reduction/non allotment/interpolation of marks in respect of the applicant. Referring to some of the answers, the applicant has further alleged that respondent no. 7 was given higher marks in comparison to the marks allotted to him though respondent no. 7 had given wrong answer to some of the questions as per the answer key.

The said OA No. 282 of 2012 was allowed by this Tribunal vide order dated 28.08.2013 whereby the order as contained in Annexure-A/4 and A/5 were set aside with direction to the respondents to appoint a fresh Evaluator and accordingly publish the result. The official respondents thereafter approached Hon’ble High Court of Patna challenging the said order dated 28.08.2013 vide CWJC No. 24020 of 2013 which was disposed of on 02.11.2015 (Annexure-A/7) remitting the matter to the Tribunal to hear the same after impleadment of respondent no. 7 as party respondent. After impleadment of respondent no. 7, written statement on his behalf and rejoinder thereto have been filed by the respective parties.

It is further averred by applicant that in the meantime OA No. 282 of 2012 was finally heard on 09.08.2016 and order dated 12.08.2016 (Annexure-A/8) was passed whereby this Tribunal after quashing the cancellation of entire examination together with Tabulation Sheet dated 18.04.2012 as contained in Anneuxre-A/4 and A/5 respectively, directed the respondents to appoint a fresh Evaluator and to complete the process of re-evaluation of the answer sheets of the Applicant and Private Respondent No. 7 and to publish the result after taking into consideration other connected materials as per their departmental norms and guidelines.

The applicant was surprised to know the impugned result dated 18.11.2016 (Annexure-A/9 issued by the respondent no. 4 whereby the respondent no. 7 has been ordered to be promoted to the post of Junior Engineer (Telecomm) against the notification dated 30.08.2011 under 20% LDCE quota which, according to the applicant, is not only unjust, illegal, arbitrary, ill motivated, punitive, unconstitutional but also against the order passed by this Tribunal on 12.08.2016 in OA No. 282/2012.

The applicant has alleged that before filing of the OA No. 282 of 2012 his marks have been shown as 81 but after disposal of the said OA on 28.08.2013 and after order of Hon’ble High Court on 02.11.2015 his marks were reduced intentionally to 79 and again after final disposal of OA No. 282 of 2012 after remand by Hon’ble High Court his marks have been reduced to 78. As such, his total marks which was earlier 125 has been reduced to 119, whereas the marks obtained by respondent no. 7 as 123 remained unchanged with intention to favour him in spite of the fact that he was given marks even against wrong answers as per the answer key which can be seen from the answer sheets of the applicant and respondent no. 7 obtained under RTI Act on 29.05.2012. It is further alleged that when the applicant represented for supply of the answer key and marks allotted after re-evaluation in favour of respondent no. 7 the same was not supplied to him which is evident from letter dated 19.12.2016. Reply of the respondents under RTI Act dated 28.12.2016 is annexed as Annexure-A/10 to the OA.

Aggrieved by non supply of the re-evaluated answer sheets of the respondent no. 7 and requesting to call for the same in the interest of justice and equity, the instant OA has been filed with the aforesaid reliefs.

The statement of the applicant that he had submitted one representation to competent authority is doubtful which is evident from letter dated 02.03.2012. It appears from the said letter that the applicant has submitted his 1^st representation on 14.12.2011, i.e. after a gap of around 10 months. Then he preferred 2^nd representation (Reminder-I) dated 15.02.2012 (Annexure-R/1 Series) and in both the representations dated 14.12.2011 & 15.02.2012 the applicant did not make reference of his letter/representation dated 01.03.2011.

It is further submitted that written test for the selection was held on 06.01.2012 and the tabulation sheet was prepared on 27.02.2012 in which all members of the Committee made signature after going through the marks obtained by the candidates in the written examination and record of service. After that one of the Committee Member cut his own signature having foot note “ Pl do the calculation 150+30=180 marks’ with clear signature again on 27.02.2012. One of the Members of the Selection Committee upgraded the APAR of the applicant from ‘Good’ to ‘Outstanding’ on 12.03.2012, i.e. after 27.02.2012.

The respondents have averred that in the first evaluation, the applicant got 125 marks out of 150 and the private respondent no. 7 got 123 marks out of 150. In compliance of order of this Tribunal dated 12.08.2016 in OA No. 282 of 2012, fresh evaluator was appointed and answer sheets were re-evaluated with clear signature of the fresh evaluator on the answer sheet in original. This time applicant got 119 marks out of 150 and the private respondent no. 7 got 123 marks out of 150. The applicant secured 26 marks out of 30 in service record considering his APAR for 2009-10 as ‘Good’. The ‘Outstanding’ APAR of the applicant for the said period was not considered by panel approving authority because it was upgraded during selection process and the private respondent no. 7 secured 28 marks out of 30 in service record. The respondents have specifically stated that the respondent no. 4 has no role in the evaluation process in any manner.

The respondents have further submitted that as per Railway extant rules, evaluator should be an officer of department concerned only. Accordingly, one Signal and Telecomm Officer was nominated as evaluator. Moreover, the upgradation of APAR was time barred as per DoP&T OM dated 14.05.2009 (Annexure-R/2).

In pursuance of Hon’ble Patna High Court’s order dated 02.11.2015 passed in CWJC No. 24020 of 2013 and in compliance of order dated 12.08.2016 passed by this Tribunal in OA No. 282 of 2012, the respondents completed all the formalities within the stipulated period and the result of written test held on 06.01.2012 was published in which Shri Prashant Kumar (Private Respondent No. 7) was empanelled for the post of J.E./Tele in level -6, i.e. Pay Band-2 Grade Pay 4200/- against 20% LDCE quota. The panel was also approved by the competent authority on 15.11.2016 accordingly.

While submitting that the fresh evaluator was nominated by the headquarter Maligaon and not by the Divisional head at Katihar; that the order of this Tribunal has been complied with in true spirit and that photocopies of answer sheets of Respondent No. 7 were not provided in reply dated 19.12.2016 to applicant being 3^rd party information under RTI Act as 3^rd party did not consent for giving photo copies of answer sheet, the respondents have prayed for dismissal of the OA.

It is further submitted that for consideration of promotion for the post of LDCE quota of Junior Engineer (Telecomm), a committee of three Junior Administrative Grade Officers, two from the concerned department, i.e. Signal and Telecommunication and one from the Personnel Department was formed. As such, the formation of Selection Committee was as per Para 219 (a) (b) of the Indian Railways Establishment Manual Volume-I. The office order dated 26.12.2011 (Annexure-R/1) issued by the Sr. DPO (Katihar) will reveal that the Sr. DSTE/Kir, Senior DSO/Katihar and Senior DPO/Katihar were nominated as members of the Selection Committee.

The private respondent no. 7 has also questioned the upgradation of applicant’s APAR on 12.03.2012 which was upgraded without any valid reason. He has also questioned if this was really done on 12.03.2012, then why it was not shown at the time of the meeting of the departmental committee on 13.03.2012. The cancellation of the selection was recommended on 15.03.2012 as the Committee apprehended some mischief in the matter.

The private respondent no. 7 has also referred to para-15 of his written statement filed in OA No. 282 of 2012 wherein details of marks has been given and submitted that he had obtained 2 marks more than the applicant.

The private respondent no. 7 has also denied that fresh evaluator has got any personal attachment with any of the parties and thus free from any bias. Therefore, the question of interference in his re-evaluation does not arise. He has prayed for dismissal of the OA accordingly.

The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking, principally, quashing of the promotion of respondent No. 7 to the post of Junior Engineer (Telecom) under the 20% Limited Departmental Competitive Examination (LDCE) quota vide order dated 18.11.2016 and a consequential direction for his own promotion on the basis of the marks claimed by him.

The controversy in the present O.A. has its genesis in the selection initiated pursuant to notification dated 30.08.2011 for one post of Junior Engineer (Telecom) under the 20% LDCE quota. The applicant, then working as Technician-I (Telecom), participated in the written examination held on 06.01.2012. The selection comprised written examination and record of service.

The respondents, however, cancelled the selection process by order dated 15.03.2012. The applicant challenged the said action before this Tribunal in O.A. No. 282/2012.

O.A. No. 282/2012 ultimately culminated in the order dated 12.08.2016, passed after the matter had been remitted by the Hon'ble Patna High Court in C.W.J.C. No. 24020/2013. The Tribunal quashed the cancellation of the examination and the consequential tabulation and directed the respondents to appoint a fresh evaluator, undertake fresh evaluation of the answer sheets of the applicant and respondent No. 7 and publish the result in accordance with the applicable departmental norms and guidelines.

Pursuant thereto, the respondents appointed a fresh evaluator from the Signal and Telecommunication Department at Headquarters, Maligaon. On such fresh evaluation, the applicant obtained 119 marks out of 150, whereas respondent No. 7 obtained 123 marks. For record of service, the applicant was awarded 26 marks and respondent No. 7 was awarded 28 marks. Thus, the applicant secured 145 marks in all, whereas respondent No. 7 secured 151 marks. Respondent No. 7 was accordingly empanelled and promoted vide order dated 18.11.2016.

The applicant has challenged the aforesaid result principally on the ground that his marks were deliberately reduced during re-evaluation and that respondent No. 7 had been awarded marks for answers which, according to the applicant, were incorrect with reference to the answer key. He has also contended that his upgraded APAR ought to have been taken into account while awarding marks for record of service.

The official respondents have opposed the O.A. contending that the fresh evaluation was undertaken strictly in compliance with the final order dated 12.08.2016 in O.A. No. 282/2012that was passed after the order of the Hon’ble High Court of Patna in CWJC 24020/2013 that had set aside the initial order dated 28.08.2013 in this O.A. and directed the Tribunal to implead Sri Prashant Kumar as a party respondent before passing a fresh order.

They have further stated that the fresh evaluator was nominated from Headquarters and had no role in the earlier evaluation. It is also their case that the applicant's APAR grading was upgraded only after the selection process had substantially progressed and that the upgraded grading was not liable to be retrospectively introduced into the selection.

Respondent No. 7 has also opposed the O.A., contending, inter alia, that the selection was conducted in accordance with the applicable Railway procedure and that the applicant has failed to establish any mala fide, bias or illegality in the fresh evaluation.

The first issue requiring consideration is whether the fresh evaluation undertaken pursuant to the order dated 12.08.2016 in O.A. No. 282/2012 suffers from any illegality, arbitrariness, mala fide or violation of the directions issued by this Tribunal.The answer is in the negative in view of the facts of the case.

The earlier order of the Tribunal did not direct that the applicant should be awarded the marks obtained by him in the original evaluation. It directed a fresh evaluation by a fresh evaluator. The respondents have complied with that direction by appointing a fresh evaluator from Headquarters and by obtaining a fresh assessment of the answer sheets of both the applicant and respondent No. 7. The resultant marks were 119 for the applicant and 123 for respondent No. 7.

It is well settled that in matters involving evaluation of answers in a competitive examination, a Tribunal exercising judicial review does not ordinarily sit as an appellate examiner or undertake an independent evaluation of the answer sheets. Interference is justified where the evaluation is shown to be contrary to the prescribed procedure, demonstrably erroneous, arbitrary, mala fide or otherwise vitiated by a legally recognizable infirmity.

The decision of the Hon'ble Supreme Court in Sachit Kumar Singh & Ors. v. State of Jharkhand & Ors., Civil Appeal Nos. 2793-98 of 2023 decided on 28.04.2023, relied upon by the learned counsel for the applicant, arose in a factual setting where specific objections to answers had been raised and the Supreme Court found that the matter warranted consideration with the assistance of expert opinion. The principle emerging from the judgment is that a genuine and substantiated challenge to the correctness of answers cannot be rejected merely on a technical ground where consideration of expert opinion is necessary.

The present case stands on a different footing. The applicant's challenge to the original evaluation had already been considered in O.A. No. 282/2012 and, pursuant to the final directions therein, a fresh evaluation by a fresh evaluator has actually taken place. The applicant has not produced any independent expert opinion or other legally cogent material establishing that the fresh evaluator adopted an incorrect answer key, ignored the prescribed key, awarded marks contrary to the prescribed scheme, or otherwise acted arbitrarily.

Mere comparison of the applicant's answers with his own understanding of the correct answers cannot, by itself, furnish a sufficient basis for this Tribunal to substitute its assessment for that of the duly appointed evaluator. The applicant has also not established that the fresh evaluator was biased against him or had any connection with respondent No. 7 which could reasonably give rise to an apprehension of partiality.

The allegation that the applicant's marks were intentionally reduced from 125 to 119 is also not sufficient, by itself, to establish mala fide. The very purpose of the fresh evaluation directed by the Tribunal was to obtain an independent assessment. A variation between the marks awarded in two evaluations is not, in itself a proof of manipulation or misconduct. What is material is whether the second evaluation was undertaken by the evaluator in accordance with the prescribed procedure. No convincing material has been placed before us to establish otherwise.

The applicant has placed reliance upon answer sheets obtained under the Right to Information Act and has sought comparison with the marks awarded to respondent No. 7. We are conscious that a demonstrably incorrect answer key or a patently erroneous evaluation may warrant judicial intervention in an appropriate case. However, such intervention must rest upon objective material establishing the error. The Tribunal cannot undertake a roving exercise of re-evaluating every answer merely because the applicant disputes the marks awarded by the evaluator.

The second issue concerns the applicant's claim that his APAR for the year 2009-10, having subsequently been upgraded from "Good" to "Outstanding" on 12.03.2012, ought to have resulted in award of 30 marks instead of 26 marks in the record-of-service component.

The material placed before us shows that the original tabulation was prepared on 27.02.2012, whereas the applicant's APAR was upgraded on 12.03.2012. Thus, the relevant grading was altered after the selection process had already reached the stage of preparation of the tabulation.

A candidate participating in a selection is entitled to consideration in accordance with the applicable rules and the criteria governing the selection at the relevant stage of consideration. In the present case, the specific question is whether, after the selection process had proceeded on the basis of the record then available, a subsequent upgradation of the APAR automatically entitled the applicant to retrospective revision of the marks awarded in the selection. The applicant has not shown any applicable statutory rule, Railway instruction or binding provision requiring such retrospective alteration in the circumstances of the present selection.

The respondents have stated that the upgraded APAR was not taken into account because the upgradation occurred after the relevant stage of the selection and was not treated as part of the record available for assessment. In the absence of a specific rule requiring retrospective incorporation of the subsequent upgradation, we find no legal infirmity in the decision of the respondents.

We also find no merit in the submission that the subsequent upgradation of the APAR necessarily conferred upon the applicant a vested right to 30 marks. Upgradation of an APAR grading and entitlement to a particular number of marks in a selection are two distinct matters. The latter is governed by the selection rules and the stage at which the record of service is required to be assessed.

The comparative position after fresh evaluation is as follows:

On the basis of the above assessment, respondent No. 7 secured six marks more than the applicant. The applicant has failed to demonstrate that the marks awarded to respondent No. 7 were the result of an unlawful or arbitrary process. Consequently, the promotion of respondent No. 7 cannot be quashed merely because the applicant believes that he should have secured higher marks.

The applicant has also challenged the non-supply of the re-evaluated answer sheet of respondent No. 7. The respondents have stated that the document was treated as third-party information and was not supplied without the requisite process under the Right to Information Act. In any event, the question of disclosure under the RTI Act is distinct from the question whether the impugned promotion is legally sustainable. No material has been shown before us from which it can be concluded that non-supply of the document has caused any legally established prejudice to the applicant in the present proceedings.

We further find that the respondents have substantially complied with the operative directions issued in O.A. No. 282/2012. The earlier order required fresh evaluation; it did not direct that the applicant be declared successful or that the marks obtained in the original evaluation be restored. The fresh evaluation has been carried out and the result has thereafter been considered by the competent authority.

The review by this Tribunal is concerned principally with the legality of the decision-making process and not with substituting the decision of the Tribunal for that of the authority entrusted with the evaluation unless of course, the decision is shown to be arbitrary, irrational, mala fide, procedurally unfair or contrary to the governing rules. Thus, interference with the decision of the respondents is not warranted.