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Judgment
Per: Dr. Lata Baswaraj Patne, Judicial Member.
The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act 1985, praying for the following relief(s):-
“a) To set aside and quash Impugned by letter No. RRB/CAL/Court/New/397/OA 800 of 2014 dated 29.12.2014 issued Secretary, Railway Recruitment Board, Kolkata.
b)To direct the respondents to produce original records relating to the second stage (main) examination before the Hon’ble Tribunal.
c)To direct the respondents to revalue and reassess the answer script of the applicant.
d)To direct the respondents to recommend the name of applicant for appointment against the post as opted by the applicant.
e) Any other order or orders as the Hon’ble Tribunal deems fit and proper."
Ld. Counsel for both sides are present and heard.
Brief facts in nutshell are as under:-
The applicant had applied for the centralized employment Notice no. 03/2012 dated 12.05.2012 issued by the Railway Recruitment Board notifying certain post.
The applicant who had applied for the notified post, accordingly, the applicant was issued with call letter for preliminary examination. He had appeared and qualified in the same. Subsequently, he had appeared in the main second stage examination held on 18.08.2013. Since applicant has not received any response by the O.A./350/0800/2014, the same was disposed of vide order dated 07.11.2014 and in compliance with the direction of this Tribunal, the respondents had passed a speaking order dated 29.12.2014. The same is challenged in this present Original Application.
Ld. Counsel for the applicant made following submissions:-
The applicant has not been properly evaluated and the information as supplied to the letter of the applicant dated 09.07.2015 is not correct.
For that, the question paper supplied to the applicant under RTI act reveals that many questions are inter change with each other which do not tally with the sequence position and position of the actual question booklet used by the applicant in the said selection and as a result of which the correct answer made by the applicant in the actual question booklet used by him in the selection process was shown wrong answer by changing the sequence, position and options of the computer copy.
For that, the respondent authorities did not comply with the directions of the Hon’ble Tribunal and did not produce the original records before the Tribunal so that the actual facts remain concealed.
It is to be noted that it is not in dispute that the applicant who has secured less and as directed by this Tribunal, reasoned and speaking order was passed on 29.12.2014.
After notice, respondents have appeared through their Counsel and filed their detailed reply and opposed the relief.
Ld. Counsel for the respondents made following submissions:-
The applicant who had participated in the recruitment conducted by the RRB, Calcutta pursuant to CEN/03/2012 and the applicant had participated in the second stage written examination held on 18.08.2013.
The cut-off marks in the 2nd stage written examination for Aptitude Test was 67.24 for OBC candidates. In other words, no OBC candidate with normalized score less than 67.24 was called for Aptitude Test.
RRB do not preserve used question booklets and the same are destroyed after a stipulated time period. However, to keep the records, question Booklet of each set was scanned and preserved. In the relevant recruitment, Question Booklets were of three (3) different Colours for sealing and in each colour there were four (4) different series- A,B,C & D. Thus there were altogether 12 sets of Question Booklets. In case of each and every booklet, there is a specific Question Booklet No. printed on the booklet which is unique for the said examination. From the said Question Booklet No, the specific set of the Question booklet i.e, the colour and series of the question booklet can be identified. Each candidate had to indicate the Question booklet No. on the OMR on the specific area so that the OMR answer sheet can be related with the specific set of the Question booklet.
In the instant case, from the Question Booklet No. as indicated by the applicant on the OMR answer sheet, the specific set of the question booklet was identified and a copy of the said scanned Question booklet was supplied to the applicant along with the RTI reply.
As per the OMR sheet, the applicant has attempted 95 questions but it has been shown as 91. In fact 04 questions being Q No. 77, Q No. 79, Q No. 99 and Q No. 108 were incorrect question. The applicant has attempted all these 4 (four) questions and the same has been treated as un-attempted questions. Accordingly, the applicant obtained 55 marks out of 116. Thereafter, marks has been converted out of 120. Thus the score of the applicant was converted in the following manner:-55/116x120= 56.90. After normalization also, the said application scored 56.90 since the Green Series Question booklet as used by the applicant was taken as Standard Question Booklet against which the Red Series and Yellow Series Question Booklets have been normalized.
The applicant had failed to appreciate that his normalized score in the 2nd stage written examination was less than the cut off marks for all the categories applicable to him even for 50% excess candidates. He also failed to appreciate that for the post of ASM, the candidates with scores below the cut off marks cannot be considered for Aptitude Test and hence such candidates cannot be considered for selection.
The entire selection was conducted by RRB/Kolkata pursuant to CEN-03/2012 has been completed and stands exhausted long ago and the selected candidates have been empanelled to indenting Railways. All the advertised vacancies have also been filled up. At this stage there is no scope to reopen the entire matter for an unsuccessful candidate.
The Hon’ble Supreme Court of India in the matter of RAKHI RAY & ORS. VS THE HIGH COURT OF DELHI & ORS (Civil Appeal Nos- 1133-1135 of 2010), [2010 (2) SCR 239] held that it is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as “the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution”, of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies.
The letter dated 29.12.2014 was issued in compliance of an order passed by the Hon’ble Tribunal.
The applicant failed to succeed in the selection process in merit and his normalized score in the 2nd stage written examination was less than the cut off marks for all the categories applicable to him. As such there was no question of empanel him.
The answer scripts as used in the relevant selection process is actually an OMR answer sheet and such answer sheets are evaluated by Computers. Even manual examination of such OMR answer sheet will bring same result.
In the Written Examination held on 18.08.2013, there were three sets of Question Papers labeled with three different colours namely Yellow, Red and Green and in each set, there were again 04 jumbled series marked as A,B,C and D. This pattern of Question Booklet in the RRB examinations was as per Railway Board’s instruction vide RBE No. 116/2010 [RRCB No. 03/2010].
The entire Examination was held on OMR answer sheets which were evaluated through Computer. The applicant annexed a copy of the OMR answer sheet used by him as annexure in the present O.A. In the said OMR answer sheet the applicant has written his Question Booklet No. as 4019835.
The OMR answer sheets are evaluated through Computer and for such purpose, the booklet no. is very much essential because the answer key is prepared according to a particular set of Question Booklet to evaluate the respective OMR.
The evaluating agency of the instant recruitment sent a softcopy in a CD of all the relevant parameters along with the result to RRCB, i.e, Railway Recruitment Control Board with copy to RRB. From the forwarding letter of the said agency dated 26.09.2013 and the Note following are clear,
The exam Code was AUS001.
Date of Exam was 18.08.2013.
E.N. No. CEN-03/2012 for the post of NTPC.
Booklet No. 4013921 to 4022608 were Green coloured.
From the logic of remainders, it is clear that Booklet No. 4019835 is of Green Colour and ‘C’ series.
In Green Colour and ‘C’ series question Booklet there were 4 incorrect questions.
That Railway Board vide letter No. 2010/E(RRB)/25/27 Pt. dated 09.06.2011 directed the method of evaluation of OMR answer sheets of RRB examinations in case of incorrect questions. The said method has been adopted in the present case.
The applicant has been provided with the scan copy of Green Colour C series Question booklet as used by him.
The panels pursuant to CEN-03/2012 were sent in the year 2014. As per the preservation policy framed by the Railway Board, the used question booklets of the present applicant and other unsuccessful candidates had already been disposed for pulping prior to the filling of the present case keeping the scanned copies of the booklets.
The present applicant has been considered for empanelment due to his comparative lower merit position in the 2nd stage written examination held on 18.03.2013 pursuant to CEN-03/2012. The applicant is aware of his marks as well as the cut off marks i.e, the marks of the last candidate called in merit for different posts. In fact, the applicant annexed the RTI reply intimating his normalized marks and the cut off marks for different posts.
It is noted that if at all, the applicant is aggrieved with the said order, he has to file the Original Application within 01 year from the date of receipt of such rejection when cause of action arose. The applicant has filed this Original Application almost after a lapse of more than 01 year which is beyond limitation.
It is further to be noted that the applicant failed to succeed in the selection process in merit and his normalized score in the second stage of written examination was less than the cut-off marks for all the categories which was applicable to him. Hence, he has not empanelled. Further, necessary script as used in the relevant selection process in the OMR answer sheets were evaluated by computers. Even manual examination of such OMR answer sheet will bring same result.
It is further to be noted that entire selection conducted by RRB, Calcutta pursuant to the CEN/03/2012 has been completed and stand exhausted long ago and selected candidates have been empanelled to indenting Railways and all the advertisement vacancies have also been made out. Therefore, there is no scope to interfere with the appointments when applicant was an unsuccessful candidate as held by the Hon’ble Supreme Court in the matter of Rakhi Ray and Ors vs High Court of Delhi and Ors in Civil Appeal Nos- 1133-1135 of 2010. It is a settled legal proposition that vacancies cannot be made out over and above. The number of vacancies advertised as the recruitment of the candidates in excess of the notified vacancies was denial of the Constitutional Right under Article 14 and Article 16 of the Constitution of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancy.
In our considered view, no interference was called for.
Since the Original Application is devoid of merit, the same is dismissed on merit as well as on the ground of limitation. There shall be no order as to costs.