Sanjeev Kumar Sharma vs Union Of India & Ors.

Delivered By:- Hon’ble Dr. Sanjiv Kumar, Member (A)

By means of the instant original application filed under section 19 of Administrative Tribunals Act 1985, the applicant has prayed for quashing the impugned letter dated 08.07.2009 (Annexure 1 of the OA) passed by the respondent no. 3. Prayer has also been made for a direction to the respondent department to promote the applicant as Loco Pilot (Goods) and to extend all the privileges and legitimate dues to him in accordance with law.

The facts of the case of the applicant, in brief, are that the applicant, who was initially appointed as Assistant Loco Pilot on 19.06.1996, was promoted as Senior Assistant Loco Pilot in 2005 and his pay was fixed in pay scale of Rs. 4000-6000/-. The next promotional post is Electric Loco Pilot (Goods) and in view of the provisions laid down in para 212 to 219 of Indian Railway Establishment Manual, the selection should be based on over all merit after giving weightage as laid down in the rules. It is stated that pursuant to notification dated 23.01.2009 whereby 246 vacancies of Electric Loco Pilot (Goods) was notified, the applicant appeared in the examination held on 23.02.2009 but on 08.07.2009, on declaration of the result, the applicant was not found passed in the aforesaid selection. The selection was based upon the written examination as well as the marks of the character role and seniority and since the applicant had excellently performed the written examination, he was optimistic about qualifying the examination. It is stated that the selection was based upon qualifying examination where the candidate was to secure 60% aggregate marks for having been declared successful and as such the applicant was not satisfied with the decision of the respondents. Hence, he moved an application under R.T.I Act. On 08.06.2010, the respondents intimated the applicant that in the Loco Pilot (Goods) examination held on 23.02.2009, he had secured 61.5% marks out of total 100 (Annexure A-3). The applicant further made a representation for giving him information regarding total award of marks alongwith the service record and seniority of the applicant. It is stated that marks of his service record was awarded after taking into consideration respective attributes of an employee including professional ability, address, personality, leadership and academic qualification. Following is the tabulation of marks awarded by the respondents to the applicant: -

Accordingly, the applicant had secured 59.75% marks which was just near to the aggregate 60%.

It is further stated that during his 15 years of service no authority has shown any dissatisfaction with his performance. He further states that the Railway Board has adopted a formula as has been introduced by the DOP&T, whereas the examining body shall device their own method and procedure for objective assessment of a candidate, who are to be considered. The applicant contends that he has secured 61.75% in the written examination and the grading of the service records of the applicant over all is satisfactory, the applicant should be considered as entitled for giving him promotion. The applicant further states that he has secured 59.75% of aggregate to 60%, which is cut off mark, the applicant could be offered promotion as Electric Loco Pilot (Goods). He further contended that as the notification was for 246 vacancies, however, in view of the formula, only 117 candidates could secure aggregate 60% marks and rest of the vacancies have been left unfilled, hence he should be considered for promotion.

The respondents have filed counter affidavit refuting the claims of the applicant on the ground that the present OA has been filed after undue delay for quashing the select list of Electric Loco Pilot (Goods) dated 08.07.2009 (Annexure A-1 of OA), which was the subject matter in other OA and the same was dismissed by this Tribunal. The grounds taken for condonation of delay are lame grounds hence the delay cannot be condoned. They further say that for collection of information and the time consumed in procedure of filing of original application are not sufficient ground for condonation of delay. It is further stated that the applicant has not disclosed about the fact which type of knowledge he wanted to collect in which the applicant spent one and half year.

The respondents further say that it is a fact that selection result dated 08.07.2009, in which the applicant himself appeared without any protest and was declared unsuccessful, cannot be challenged at this late stage as he cannot challenge awarding of marks and points and he cannot contest that the marks are proper or improper. The marks were awarded strictly in accordance with procedure laid down for awarding of marks based upon equity and equal treatment. It is stated that formation of panel of three members committee for awarding of marks was constituted, to the candidates who ever secured 60% or more marks in the written test and the weightage in the written exam was 50 %, record of service was 30% and Marks of seniority was 20%. Under this system, the applicant was awarded aggregate marks but could get 59.75% out of 100 marks and there is no provision for rounding of the marks. As the marks of the applicant was lesser than cut off marks, he was not declared successful. Merely because he has secured very good marks in the written examination and for other two categories specifically seniority he has not done well, he cannot be given any concession.

In the rejoinder, the applicant has reiterated the contents of the original application.

The case came up for final hearing on 16.01.2023. Shri Ashish Srivastava, learned counsel for the applicant and Shri Rajni Kant Rai, learned counsel for the respondents were present and both were heard.

The applicant’s contention mainly was re-emphasized that as cut of marks was 60% and he has obtained 59.75%, so the same should be rounded off and he should be considered as qualified and given promotion. He further argued that as he has got very good marks 61.5% in written examination, hence that also makes his case stronger to be qualified and promoted. In support of his contentions, learned counsel for the applicant has placed reliance on judgment of Hon’ble Supreme Court dated 31.03.1997 passed in the case of State of Orissa & Anr. Vs. Damodar Nayak & Anr, wherein some 53.9% marks have been rounded off to 54%. Learned counsel for the applicant further placed reliance on the judgment of Hon’ble Supreme Court dated 15.03.1996 passed in Appeal (Civil) No. 5085/1996 – M. Ramjayaram Vs. General Manager, South Central Railway and Ors where case is regarding qualifying marks proportions under different categories and merit of such formula.

Learned counsel for the respondents argued that all the candidates were given equal opportunity and formula based assessment system was adopted where 50% weightage was given for written examination, 30% for CRs and 20% for seniority. The applicant has obtained only 59.75% aggregate which was less than the cut off marks of 60%, hence he was not considered for promotion. His marks in seniority was considerably less at 11 (55%) out of 20, which mainly pulled down by overall percentage secured to 59.75% and at this juncture, it cannot be rounded off as the rules were strict at that point of time and cut off were strictly adhered to.

We have carefully gone through the record and rival contentions.

This is a case where based on a weightage for written examination (50%), CR (30%) seniority (20%), the merit percentage of marks of a candidate was being assessed for promotion to the post of Electric Loco Pilot (Goods) in the pay scale of Rs. 5000-8000 in view of the provisions laid down in para 212 and 219 of Indian Railway Establishment Manual and selection was made based on over all merit after giving due weightage, as laid down in the rule.

The facts of the case are not disputed. The only contention which survives for our decision is as the applicant has secured 59.75% marks only against the required cut off marks of 60%, can he be considered at this delayed point of time eligible for promotion.

There is no case made out that the rules which laid down for such weightage based merit list preparation was wrong or applied wrongly or in any way unequal treatment was given to the applicant in awarding of the marks or any other discrepancy which happened in awarding of the marks or the decision was capricious or colourable exercise of the powers by the authorities or the process was defective. We have gone through the order of the Hon’ble Supreme court in Appeal (Civil) No. 5085/96 and found that it is not relevant to this case. It was merely related to the interpretation of rules of formula and prescribed proportions of weightages. In another judgment of Hon’ble Supreme Court in the case of State of Orissa & Anr (Supra), where some rounding of is mentioned of the marks, is not made as a rule in rem which has to be applied in all cases. The contention that there were more posts than number of qualified candidates, hence the applicant should be made qualified, also does not have any ground to interfere with the decision of the authorities. Rounding of marks obtained is common in the academic examinations but in the competitive examination for appointment and promotion has to be supported by rules. It is common knowledge that in competitive examinations, there can be differences of fraction of a mark and within a fraction large number of candidates can be there. Hence, whether for such cases rounding off is in practice has to be shown with definite precedence. The applicant has failed to show any such precedence.

Since the impugned select list dated 08.07.2009 has attained finality and after lapse of 14 years, we do not find strong convincing reasons based on procedural lapses or any other flaw in the decision making or any grounds of violation of equity or non-following of principles of natural justice etc. Hence We do not find at this delayed juncture to open a settled selection, which has attained finality long back.

For the foregoing reasons, the OA is liable to be dismissed. Accordingly, the OA is dismissed.

No order as to costs.