Tasim @ Tashu vs State Of Uttarakhand

Ramesh Ranganathan, C.J.

The application to condone the delay of 73 days' in preferring the appeal is not opposed and is, therefore, ordered.

This appeal is preferred against the order passed by learned Single Judge in WPSS No. 1922 of 2016 dated 31.07.2018.

The appellant herein was the Deputy Head Examiner, for evaluation of answer sheets pertaining to mathematics subject for the High School Examinations held in 2015, at the evaluation centre, Government Girls Inter College, Kashipur. On a representation made by a student for re-examination / revaluation of the answer sheets, vide letter dated 23.03.2015, the matter was re-examined; and as against "4 marks" awarded to the student earlier, it was found that the student was entitled to "64 marks". A charge-sheet was issued to the petitioner and an inquiry was held wherein it came to the light that the appellant-writ petitioner had not tallied the marks which led to miscarriage of justice to the student. The appellant-writ petitioner was found negligent, in the discharge of his duties, by the inquiry officer. In reply to the show cause notice, the appellant - writ petitioner took moral responsibility for the lapse. Besides withholding his remuneration, the appellant - writ petitioner was imposed the penalty of withholding of two increments, and an adverse entry was recorded in his service record for dereliction of duties.

On the petitioner invoking the jurisdiction of this Court, the learned Single Judge, by the order under appeal, rejected the petitioner's contention of double jeopardy; and held that, since the petitioner had admitted having committed grave misconduct, it was open to the employer to initiate disciplinary proceedings against him; the petitioner was given ample opportunity to explain his position; there was no perversity or illegality in the inquiry report; the petitioner was heard at every stage; and the penalty imposed on the petitioner was commensurate with the misconduct. The learned Single Judge did not find any merit in the writ petition, and it was accordingly dismissed. Aggrieved thereby, the present appeal.

Sri S.P. Singh, learned counsel for the appellant-writ petitioner, would submit that, in terms of the guidelines framed for evaluating the answer sheets, an error percentage is prescribed for deduction in remuneration; and while the variance in this particular of answer sheet was on the higher side, the percentage is required to be computed not with respect to a single answer sheet, but is to be computed taking the answer sheets in all the subjects together; the answer sheets are subjected to re-valuation, not just by the petitioner but also by another examiner and two Auditors; none of them could locate the error; the guidelines provide for deduction in remuneration as a punishment, and such a punishment was imposed on both the examiners and one Auditor; and the action of the respondents in imposing the further penalty of stoppage of two increments is contrary to the guidelines, which only provide for deduction in remuneration.

The answer sheet of the student forms part of the record. As noted hereinabove, while the appellant - writ petitioner had awarded "4 marks" in the initial valuation; it came to light, on the request of the student for revaluation / re-examination / scrutiny, that he had actually secured "64 marks". While the said candidate was declared to have failed earlier on the ground that he had secured only "4" marks", it is only after he had requested for revaluation, was it found that he was entitled for "64 marks" i.e. first division; and awarding him only "4 marks", and to have declared him to have failed, was a grave error.

The fact that the candidate was entitled for "64 marks", and not merely for "4 marks", is not disputed before us. The appellant - writ petitioner was the Deputy Head Examiner; it was his responsibility, along with the other examiner, to ensure that the answer sheets were properly evaluated; and the variance in marks should, at the most, be negligible i.e. upto 2%. There is variance of 60% marks in the case on hand and, while the appellant - writ petitioner and the other examiner had awarded him "4 marks", it later came to light that he had actually secured "64 marks".

As Sri S.P. Singh, learned counsel for the appellant-writ petitioner, would submit that the prescribed guidelines provide only for deduction in remuneration and no other punishment could have been imposed on him, it is necessary to briefly refer to the prescribed guidelines, for deduction in remuneration, for errors in evaluation. These guidelines read as follows:

"i. In case of error upto 0.5 percent, 10 percent of the total remuneration shall be deducted.

ii. In case of error of 1 percent, 50 percent of the total remuneration shall be deducted.

iii. In case of error of 2 percent, 85 percent of the total remuneration shall be deducted and the employee shall be declared disqualified for the next 3 years."

Reliance placed by Sri S.P. Singh, learned counsel for the appellant, on these guidelines is misplaced, as these guidelines provide for a deduction in remuneration of 10% cut in remuneration for errors upto 0.5 %; 50% cut in remuneration for errors upto 1% and 85% cut in remuneration for errors upto 2%. The error, in the present case, is of 60% in the subject answer sheet, and is 30 times the maximum error of 2% prescribed in the guidelines. The appellant - writ petitioner also seeks to blame the Auditor and places reliance on the following conditions prescribed in the guidelines:

"iv. If any error is found in an audited answer sheet then for the same error the liability shall be on the auditors concerned and the deductions/recovery from their remuneration shall be made in the same manner as the deductions from the remuneration of the examiner is made.

v. After completion of evaluation, if, as a result of scrutiny or collation /matching /comparison or other inquiry at the Board's official level, any error on the part of Evaluator/Auditor/Deputy Head Evaluation comes into light then in accordance with the aforesaid rules the amount will be recovered accordingly from the remuneration received by them.

As has been stated by Sri S.P. Singh, learned counsel for the appellant himself, both the examiners including the petitioner, and one of the two Auditors, were imposed the punishment of stoppage of two increments. The fact that the Auditor did not point out the error has resulted in a punishment being imposed on him also, and would not, in any case, absolve the petitioner of his negligence in awarding "4 marks" to a candidate who was later found to have actually secured "64 marks".

The contention of Sri S.P. Singh, learned counsel for the appellant, that, since the appellant - writ petitioner was imposed deduction of remuneration, the respondents were not justified in taking disciplinary action against him, and in imposing on him the punishment of withholding of two increments is not tenable.

It is only for errors of upto 2%, can deduction in remuneration, in terms of the guidelines, be imposed. The appellant - writ petitioner was imposed deduction in remuneration, in terms of the guidelines, for the errors in evaluation upto the prescribed maximum percentage of 2%. Disciplinary action was taken against him since the error in evaluation was not of the maximum 2% prescribed in the guidelines, but of 60% as the concerned student was awarded "4 marks" as against the "64 marks" he was awarded later. The career of a student was put in jeopardy by such grave errors in evaluation by the appellant - writ petitioner. The authorities concerned were justified in initiating disciplinary action against him, and, pursuant thereto, in imposing on him the penalty of withholding of two increments. The adverse entry in the service record of the appellant - writ petitioner is merely a noting of the punishment imposed on the appellant - writ petitioner of withholding of two increments, and would not, per se, amount to a punishment for proved acts of misconduct.

We are satisfied that the learned Single has not committed any error, much less a patent illegality, in refusing to interfere with the order of punishment imposed on the appellant - writ petitioner. In the facts and circumstances of the present case, the Authorities concerned were justified in imposing the punishment of withholding of two increments of the appellant - writ petitioner for his gross negligence and dereliction of duties in evaluating the answer sheet, and in awarding a student 4% marks, as against the 64% he was found entitled to later.

Viewed from any angle, the special appeal fails and is, accordingly, dismissed.