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Judgment
O R D E R
Per: Smt. Urmita Datta (Sen), Judicial Member
The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, praying for the following relief(s):
“a)An order directing the respondents to set aside the order dated 30.12.2019 (Annexure A-6) and also produce the 1st and 2nd written test answer script before the Hon’ble Tribunal then whole thing will clear, if the applicant is found suitable for the said post then the appointment letter may issue in favour of the applicant.
b)To pass such other order or further orders as to Your Lordships may deem fit and proper.”
Facts of the case as narrated by the applicant in the O.A. are as follows:
The applicant applied for recruitment to a Group 'D' post pursuant to Notification No. 0113 issued by the Railway Recruitment Cell, Eastern Railway, Kolkata. Upon scrutiny of her application, the applicant was issued an admit card and she appeared in the written examination held on 30.11.2014.
The applicant states that the result of the written examination was never published nor was any information communicated to her regarding the status of the examination. Subsequently, the respondents initiated another written examination without informing the candidates that the earlier examination had been cancelled. The applicant contends that the cancellation of the examination was arbitrary, mala fide and effected without any notice to the candidates.
On coming to know from reliable sources that the examination held on 30.11.2014 had been cancelled, the applicant submitted a representation dated 28.11.2018. As no response was received, she approached this Tribunal by filing O.A. No. 102 of 2019 challenging the cancellation of the first written examination as well as the conduct of the subsequent examination. The said Original Application was disposed of on 15.07.2019 with a direction upon the appropriate authority to consider her said representation.
According to the applicant, the respondents failed to comply with the directions issued by this Tribunal, compelling her to initiate contempt proceedings by filing C.P No. 36 of 2020. However, during the pendency of the contempt proceedings, the respondents passed a speaking order dated 30.12.2019, whereupon the contempt proceedings were dropped on 08.03.2021.
The applicant has challenged the said speaking order dated 30.12.2019 on the ground that it merely records the cancellation of the first written examination and the conduct of the second examination without assigning adequate reasons. Aggrieved by the alleged arbitrary cancellation of the first written examination and the inadequacy of the speaking order, the applicant has filed the present Original Application.
Ld. Counsel for the applicant has made the following submissions:
The applicant had duly appeared in the first written examination pursuant to the recruitment notification and had answered all the questions to the best of her ability. It has been contended that the applicant had performed well in the examination and had a legitimate expectation of being shortlisted for the next stage of the selection process.
The respondents neither published the result of the written examination nor informed the applicant that the examination had been cancelled. Instead, the respondents issued a fresh notification/call letter for another written examination without disclosing the reasons for cancelling the earlier examination. Such action is arbitrary, mala fide and contrary to the principles of natural justice.
The speaking order dated 30.12.2019 passed by respondent No. 2 is cryptic and non-speaking, as it merely refers to the cancellation of the first written examination and the conduct of the second examination without assigning any cogent reasons therefor. Although the respondents have referred to the applicant's marks, no supporting material, including the answer script or any other relevant record, has been disclosed.
The respondents have failed to consider the case of the applicant properly and that the impugned actions are arbitrary, illegal and violative of the applicant's legal and constitutional rights.
Ld. Counsel for the respondents has made the following submissions:
The present Original Application is barred by limitation under Section 21 of the Administrative Tribunals Act, 1985, as the cause of action arose in the year 2014–2015, whereas the present OA has been filed only in the year 2021 after an inordinate and unexplained delay. Reliance has also been placed on the decision of the Hon'ble Supreme Court in Bhoop Singh v. Union of India 1992 AIR 1414, 1992 SCR (2) 969 in support of the plea of delay and laches. It is also contended that it is settled law that no one can challenge the selection process after taking part in selection.
The written examination held on 30.11.2014 was cancelled pursuant to a Vigilance Report revealing leakage of the question paper and evidence establishing a complete match between the leaked paper and the question booklets used in the examination. The decision to cancel the examination was taken with the approval of the competent authority.
Notice regarding the re-examination was duly published in leading newspapers and uploaded on the website of the Railway Recruitment Cell, Eastern Railway, thereby giving all affected candidates, including the applicant, an opportunity to appear in the re-scheduled examination which was held on 01.02.2015 and 15.02.2015. Further, Paragraph 17.5 of the Employment Notification No. 0113 expressly empowered the Railway Recruitment Cell to hold a re-examination or cancel the whole or part of the written examination.
The applicant, in fact, appeared in the re-scheduled written examination held on 15.02.2015 and secured marks below the prescribed qualifying standard for an unreserved (UR) candidate. Having participated in the re-examination, she cannot now challenge the cancellation of the earlier examination or the selection process.
The speaking order dated 30.12.2019 was passed in compliance with the directions issued by this Tribunal in the earlier Original Application and duly dealt with the applicant's representation by furnishing the relevant particulars, including her OMR response sheet and marks obtained.
Applicant has filed her rejoinder and reiterated the stand taken in the O.A. However, the applicant has admitted that she was informed about the second examination.
We have heard the parties and perused the material on record.
It is noted that as per the applicant, she appeared in the first examination which was subsequently cancelled without any information and without disclosing the reasons for the same and the respondents issued a fresh Notification. Further, it has been submitted by the applicant that the impugned speaking order dated 30.12.2019 is a non-speaking one and no cogent reasons have been assigned thereafter, whereas, on the other hand, the respondents have raised the preliminary objection on the point of limitation. It is noted that after the first round of litigation, the competent respondent authority passed speaking order dated 30.12.2019 (Annexure A-6) which inter alia reads as follows:
“The facts of the case reveal that in terms of E.N. No.0113, the criteria for recruitment of open market candidates in Gr. 'D' through RRC/ER is multi staged. First stage is written examination which forms the basis of thert order. Rest stages are PET. Document Verification (DV) and Medical, which are qualifying in nature.
The initial dates of examination were from 02/11/14. 09/11/2014. 16/11/2014. 23/11/2014 and 30/11/2014 as per directives of Railway Board with the alphabetical grouping schedule of the candidates, all over India for all zonal railways.
Due to Vigilance Report regarding leakage of question paper prior to written examination and evidence given by Sr. Deputy General Manager, Eastern Railway of 100% matching of leaked question papers and that of RRC/ER's Question Booklets, the written examination of 23/11/2014(Evening Session) and 30/11/2014 (Both Morning and Evening Session) were cancelled by General Manager, Eastern Railway, Kolkata. The said cancelled sessions were re-scheduled on 01/02/2015 and 15/02/2015 in two sessions per day.
Para 17.5 of the notification of E.N.No.0113 states that "RRC-ER at its discretion may hold additional written examination and/or hold re-examination, or, cancel part, or, whole of the written examination and/or PET." Hence, candidates made aware in the notification itself that in case of administrative exigencies examination can be cancelled / re-scheduled.
The applicant, Smt Jhumur Nath (UR), Roll No. 52211952, appeared in the written examination dated 30/11/2014. However, due to above mentioned reasons the examination of that particular dates / session was re-scheduled. Central Administrative TribunalHence, the question of evaluation of Answers Scripts/Optical Mark Reader (OMR) for the cancelled sessions of written examination, does not arise and is irrelevant.
The applicant, Smt Jhumur Nath (UR), Roll No. 52211952, appeared in the re-scheduled written examination on 15/02/2015(Evening Session) and she attempted 64 'questions leaving 36 questions blank out of 100 questions of one mark each. Out of 64 answers, 34 were correct and 30 were wrong. Her raw score was 24(34-10(for negative marking)}. After normalization, her score was 37.66 whereas the last UR candidate who was called for PET and DV scored 82.83.
Due to low score in written examination in terms of para 17.1 of the notification, Smt. Jhumur Nath (UR), Roll No. 52211952 did not appear in the merit list.
Therefore, in view of all the above detailed facts & circumstance, the representation of Smt Jhumur Nath (UK), Roll No. 52211952 against E.N. No.0113 cannot be considered and accordingly disposed of in compliance of Hon'ble CAT/Calcutta's order dated 15/07/2019 in O.A. No. 350/0102/2019.”
From the perusal of the above, the allegation of the applicant that the speaking order is a non-speaking one and that no reasons had been disclosed is found to be incorrect. Further, the applicant has also appeared in the subsequent written examination on 15.02.2015 and secured lesser marks than the last UR category candidate who was called for Physical Efficiency Test (PET) and Document Verification (DV). The same has not been denied or disputed by the applicant. Therefore, once the applicant has appeared for the subsequent examination which was scheduled after cancellation of the earlier examination, she is estopped to challenge the cancellation of the earlier examination by a subsequent O.A. and that too after a period of 02 years in violation of Section 21 of the Administrative Tribunals Act, 1985. No application for condonation of delay has also been filed by the applicant.
Even in the earlier round of litigation, this Tribunal did not entertain the case on merit but simply directed the authority to consider the representation of the applicant as per the prayer made by the applicant. Further, in C.P. No. 36 of 2020 which was disposed of vide order dated 08.03.2021 (Annexure A-5), none was present for the applicant. However, the CPC was dropped on the basis of the compliance report filed by the respondents. Therefore, we do not find any reasons to interfere with the decision of the respondents in the matter.
Accordingly, the O.A is dismissed with no order as to costs.