JUDGMENT
Laxman Jha, Member (J)
1. This is an application under Section 19 of Central Administrative Tribunal Act (for short, CAT Act), praying therein to quash and set aside the result of the written test, as at Annexure A/I and Annexure A/2, and also, of the oral test, conducted by the respondent No. 2 and 3, allegedly adopting unfair practices, in order to favour the candidates belonging to their communities, for filling up the post of Ticket
Collectors in Group ‘C’, in the pay scale of Rs. 950-1050, by selection for promotion, from Group ‘D’ candidates of the Commercial and the Traffic department of the Bhavnagar Railway Division. Further, prayer is made to restrain the respondentNo. 3 from participating in any other selection test and for special cost.
2. It is the case of the applicants that the respondent No. 2, Mr. G.L. Meena, Sr. Personal Officer, Western Railway, Bhavnagar, and respondent No. 3, Mr. Meena, Divisional Commercial Manager Western Railway, Bhavnagar, conducted written test for selection from amongst the Group ‘D’ candidates for promotion to the tost of T.C. on 30.11.95 and 19.2.96. In all 123 candidates appeared in the written test, against 8 declared vacancies, of which 6 were general category, and one each in the SC and ST categories. The result of the written test of the general category candidates was made out on 12.3.96, and of the reserved category on 20.3.96, according to which, 5 candidates of the general category, and 5 candidates of the reserved category respectively were declared successful for oral test, as at Annexure A/I and Annexure A/2. Out of the 5 candidates declared successful in the first result of the general category, as at Annexure A/I, 3 candidates belong to the ‘Meena’ community, to which, the respondents No. 2 and 3 belong to and one each is general category and ST, other than ‘Meena’ community. In the second result of the reserved category, as at Annexure A/ 2, 4 candidates are SC’s and one is ST, who also belongs to ‘Meena’ community.
3. It is stated that the respondent No. 2 is the Head of the Department, and respondent No. 3, the Divisional Commercial Manager, is the head of the commercial department of the division. Allegedly, they in collusion with each other managed the affairs of selection in such a fashion that as many as 3 candidates out of 5, in the general category, and one in the reserved category belonging to their community were declared successful for oral test with sure shot for them to come out with flying colour in the final selection to the frustration of the general category candidates who are said to be possessed of higher qualification and experience, and they had also done better in the written test.
4. It is alleged that the candidates who have been declared successful were called at the residence of the respondent No. 2, and he got their answer books/answer re-written by adopting unfair practices. The applicants immediately filed a complaint before the Higher Authorities, seeking investigation into the matter, vide Annexure A/3.
5. It is the further case of the applicants that the written test was conducted by the respondent No. 2 and 3, in flagrant violation of the rules/directives issued by the Railway Board as enumerated hereunder:
(A) Firstly, according to the rules, 50% of the total marks of the written test are required to be objective type, but they have not done so, as it is obvious from the question paper set for the written test, as at Annexure A/4. (B) Secondly, the candidates were required to write down their names on the answer sheets, contrary to the mandatory instructions. The written test was required to be conducted through a secret process by coding and de-coding the answer books etc. through confidential section of the department. The respondents, being the head of the department was in controlling position of the confidential section, and manipulated the thing as desired. (C) Thirdly, the seniority marks should have been added to the written test mark to consider the eligibility to appear in the viva-voce test, which they failed to do. (D) Fourthly, the respondents have applied a relaxed standard in deciding the eligibility of the SC's and ST's against the judgment of the Hon'ble Supreme Court in Vinod Kr's case, 1996 S.C. Cases (L & S) 1480, on this point, in as much as, the SC's and ST's securing marks between 20%-50% in the written test, have been declared as eligible for viva-voce test. It is also stated that for one post of SC, 4 candidates could not have been called for viva-voce test as has been done vide Annexure A/2. (E) Fifthly, the general category candidates have been intentionally given less marks in the evaluation done by the respondent No. 3, so that the aforesaid successful candidates could steal a march over general category candidates in the final selection. It is stated that it is not believable that no general category candidate could have obtained 60% of 35 marks, whereas, 3 'Meena' community candidates, out of 5 successful candidates, would have secured 60% and above marks. Thus, it is stated that the respondent No. 2 and 3, intentionally gave less mark to the general category candidates to circumvent their final selection, which was quite possible on the basis of following the prescribed marking pattern, but for their being declared unsuccessful in the written test of 50% marks. According to the marking pattern for final selection, the remaining 50% of the total marks are required to be allotted for the seniority services records and the qualification. On qualifying in the written test, the candidates declared successful in the written test, could not have competed in the final selections, on final marking on the aforesaid prescribed pattern. Thus, the result of the written test as at Annexure A/1 and A/2, as having not based on proper evaluation of the answer books is challenged.
6. It is denied that the C.A. suffers from the defects of the non-joinder of the necessary parties and non-availing of the departmental remedies, as required under Section 20 of the Central Administrative Tribunal Act. Accordingly, prayer is made for the relief as stated above.
7. On behalf of the respondents, the Railway administration, a counter has been filed, challenging the maintainability of the O. A. on the twin grounds of the non-joinder of the necessary parties, and non-availing/exhausting of the departmental remedies in violation of the provisions under Section-20 of the CAT Act.
8. It is stated that for filling up 8 vacancies (6 general category and one each for SC and ST) in Group ‘C’ Cadre from amongest the Group ‘D’ candidates of the Bhavnagar Railway Division, the written test was held on 30.11.95 and 19.2.96, in accordance with the selection procedure as circulated, vide H/Q letter No. EP/1025/0 Vol. IV dated 7.12.90. The respondent No. 3, being the Departmental Officer was associated in the selection committee after completing the written test. The answer books were collected by the Officer in charge, who conducted the examination and handed over to the confidential section. The confidential section gave code Nos. on the top-sheet, and also, on the answer books. Thereafter, the top-sheet was removed and kept in sealed cover, and opened only after the answer books were received duly evaluated by the nominated officer. The Asstt. Personal Officer, supervised the examination, and also signed every page of the Answer Books. The respondents No. 2 and 3 did not supervise the written examination. Therefore, there is no question for showing favour to the aforesaid successful candidates, belonging to the ‘Meena’ community by adopting the alleged unfair practices by them. The successful candidates of the first result (Annexure A/I) obtained 60% of marks in the written test, and the successful candidates of
the second result, as at Annexure A/2, who belong to the SC/ST category, secured 20%-50% marks and therefore, as per relaxed standard vide para 3:8:2 of the aforesaid circulars of the Board, they were declared successful for taking viva-test.
9. It is admitted that the respondent No. 3 is the Head of the commercial department of the division and the respondent No. 2 is the Sr. Personal Officer, who is responsible for implementation of the rules and regulations of the Railway Board and of the Head Quarters. The Selection Committee consists of three members, including the respondent No. 3, and other two members, are from general communities. Therefore, there was no occasion for the respondents for committing alleged mal-practices to favour the aforesaid successful candidates. It is the further case of the respondents that there is no guarantee that the persons called for viva-test will be selected even if they have secured 60% of marks in the written test, as the final selection is based on obtaining marks in the personality, leadership and academic qualification, seniority and service records which comprise of 50% of the total marks. It is stated that the written test including viva-voce test consisting any 50% of the total marks and the remaining 50% are allotted/distributed under the aforesaid heads in the following manner:-
Written test
–
35 %
Viva voce
–
15 %
Personality, Address Leadership & academic qualification
–
20 %
Seniority
–
15 %
Service records
–
15 %
10. It is stated that the general category candidates are required to secure atleast 60% marks to become eligible for viva-voce test and SC and ST candidates are required to secure only 20%-50% marks, and therefore, there is no quest on for calling general category candidates securing less marks than 60% of marks.
11. The contention of the applicant regarding fixation of seniority of the SC/ST candidates at the pay scale of base grade is denied on the ground that it was an open selection and based on seniority. It is stated that there was no complaint to the higher authorities regarding any irregularities in the written test, who is competent to take action and even cancel the selection process, which was conducted as per rules referred to above and the aforesaid allegations against the respondents are false and motivated. Accordingly, the prayer is made to dismiss the O.A.
12. On the basis of the aforesaid pleadings of the parties, the following issues are identified for decision in this case.
(1) Whether the Selection process is vitiated for non-setting of objective questions to the extent of 50% of the total marks. (2) Whether the written test held on 30.11.95 and 19.2.96, confirms to the Rules as prescribed; (3) Whether the relaxed standard as applied to the SC/ST candidates for eligibility for viva-voce test, as declared at Annexure A/2, can be sustained; (4) Whether the allegations of malafide and mal-practices against the respondent No. 2 and 3, as levelled against them been established: (5) Whether the process of selection and evaluation of the answer books have been done in proper manner in accordance with the rules; (6) Whether the O.A. suffers from the defects of non-joinder of the necessary parties and non-availing of available departmental remedies; Issue No. I:
13. The learned counsel for the applicant referred to Rule 3:6:1, as at Annexure R/3 and contended that the respondents were required to set 50% objective type of questions of the total marks in the written test for the selection by promotion, which has not been complied with as is obvious from the question paper as at Annexure A/4. We may refer to the aforesaid Rule as hereunder:
“In the written test, if any, held as part of the selection for promotion to the highest grade, selection post in the category, objective type of question may be for about 50% of the total marks for the written test. The figure of 50% for objective type question is intended to be for guidance and should not be construed to mean as constitute inflexible”.
14. It is the contention of the learned counsel for the applicant that the candidates who appeared in the written test, were Group ‘D’ employees, which is the highest grade in that category, therefore, it was incumbent on the respondents to set 50% objective type of question of the total marks for the written test.
15. On the other hand, the learned counsel for the respondents, contended that the aforesaid stand of the learned counsel for the applicants is not tenable, in as much as, the aforesaid rule is required to be applied in case of selection for promotion to the highest grade, selection post in a given category and not for all categories. In this category, the highest post is the Chief Ticket Inspector in the basic pay scale of Rs. 2000-3500/- to which the above condition may be applicable, and not to the category of the Ticket Collector in the pay scale of Rs. 950-1500/-. Furthermore, the aforesaid percentage is not inflexible Rule. We find that there is no question of different grades in the cadre of Group ‘D’ employees in the instant case. The aforesaid rule seems to apply to the categories of the employees who have different grades in the heirarchy as stated above. Moreover, this rule is intended to be for guidance and should not be construed as to mean inflexible percentage. Therefore, we do not feel pursuaded to accept the aforesaid stand of the learned counsel for the applicant, accordingly, this issue is answered in the negative against him.
Issue No. 2 :
16. The pleadings on this point as contained in the O.A. is vague. It is said that the written test was conducted from 30.11.95 and 19.2.96 by the respondents No. 2 and 3, and the result for the same was declared on 12.3.96 and 20.3.96, for the general category candidates and the reserved category candidates respectively as per Annexure A/1 and A/2. It is admitted position that altogether 123 candidates appeared at the written test on 30.11.95 and 19.2.96. The written test/supplementary test were held on two aforesaid dates as provided under Rule-312 and 312 (i), vide P.S. No. 247/90, as at Annexure R/3. We may extract the aforesaid rule as hereunder:
3.12. Supplementary Selection:
One supplementary selection may be notified alongwith the original notification for absentees. Second supplementary selection should not be conducted without the personal approval of CPO. The first supplementary selection should be held for the employees falling
in the following categories:
(i) Employee not relieved by the administration due to exigency of work, for which supervisor/controlling officer has sent prior intimation. (ii) Sickness of the employee covered by medical certificate before the date of notification, over which, employee has no control. Certificate should indicate that the employee was sick from......to.....and was not in a position to appear for written/oral test on ........
3.12.1. : The employees who do not appear in the first test should seek permission through proper channel within 10 days from the date of first test to appear for the supplementary test. In the case of employees on leave, It shall be the duty of the depot, Unit/ Office Incharge to ensure that the dates of first test and supplementary test is advised to the employees. The present practice of ascertaining reasons from absented employees and granting them permission to appear in supplementary test should be stopped in view of the fact that they area were of the date of written test. Any application from employees seeking permission to appear in Supplementary test should be sent to Personnel Br. within 15 days. Application received after 15 days will not be entertained. Failure to seek permission to appear in supplementary W/Test will be treated as unwillingness on the part of the employees.
The employees placed under Sick-list by the Railway Medical Authorities should be informed of the first and Supplementary W/Test by the Department/Office Incharge. It is open to them to appear in the test, viva-voce, if they so desire with advance intimation to the office concerned.
The above procedure will equally apply for Supplementary viva-voca test except the prescribed time gap which will be 21 days between the main and suppl. -viva-voce test.
17. It appears that the aforesaid written tests were required to be held on two dates under certain circumstances, as provided thereunder. The learned counsel for the applicant contended that the respondents have failed to bring on record the notification to show that the supplementary selection was notified with the original notification for the absentees, and, therefore, failed to show that the writtens test on two dates were held in conformity with the aforesaid rules. Moreover, the learned counsel for the applicant contended that the compulsory question in the written test held on both the dates was common, but the general questions were different. The question paper of the written test held on 30.11.95, is as at Annexure A/ 4, but the question paper of the written test held on 19.2.96, has not been brought on record. He contends that in any view of the matter, as the compulsory question was common in the written tests on both the dates, it taints the written test, and it stands vitiated. The contention of the learned counsel for the applicant appears quite reasonable and is difficult to be brushed aside. This issue is, accordingly, decided in favour of the applicant.
Issue No. 3 :
18. The learned counsel for the respondents referred to Rule 3:8:2 of the aforesaid circular referred to above, which provides as follows:
3.8.2 : Non-safety category :
“60% for all categories including SC/ST in the manner indicated in Para. 3.8.1. above. For reserved vacancies, SC/ST candidates, who secure 50% marks with or without seniority marks should be included separately thereafter SC/ST employees who get less than 50% but minimum 7 marks out of 35 i.e. 20%
marks and above upto 50% for written test may be included for viva-voce test against reserved vacancies, indicating this position also separately.
19. He contended that in view of the provision under this rules, the general category candidates are required to secure atleast 60% marks to become eligible for viva-voce test and the reserved category candidates becomes eligible for viva-voce test on securing 20%-50% marks in the written test. Accordingly, applying this relaxed standard, the result of the written test of the SC/ST candidates, as per Annexure A/2 was declared.
20. The learned counsel for the applicants, on the other hand, contended that the relaxed standard as applied in the case of the SC/ST candidates in the written test result for declaring them eligible for oral test is not available to them, as it is a case of promotion. He referred to the ruling of the Hon’ble Supreme Court, as 1996 SCC Cases (L&S) 1480, Vinod Kumar v. Union of India and Ors., in support of his stand. The relevant portion of the aforesaid ruling of the Hon’ble Supreme Court is as follows:
“We are, therefore, of the opinion that so far as the provision for lower qualifying marks or lesser level of evaluation in the matter of promotion is concerned, it is not permissible under Article 16(4) in view of the command contained in Article 335 of the Constitution. In other words, even if it is assumed for the sake of argument that reservation is permitted by Article 16(4) in the matter of promotions, as provision for lower qualifying marks or lesser level of evaluation is not permissible in the matter of promotions, by virtue of Article 335. If so, there can be no question of such a provision or ‘concession’, as it is called by the Tribunal, being saved by the declaration in para-829 of the said judgment.”
21. The learned counsel for the applicant rightly contended that in view of the aforesaid dictum of the Hon’ble Supreme Court, the provision of relaxed standard by making a provision for lower qualifying mark or lesser level of evaluation for reserved category candidates is not permissible. The aforesaid rule providing relaxed standard in qualifying marks to that extend becomes in applicable. In view of this settled legal position, the result in the written test, as at Annexure A/2, is not sustainable. This issue is accordingly answered in the negative.
Issue No. 4 :
According to the averments in the O.A. read with the rejoinder filed on behalf of the applicant, the respondent No. 3 called the candidates declared successful, at his residence and got the answers re-written in the answer books with malafide intention to favour them in the final selection. Learned counsel for the applicant contended that the respondent No. 2 evaluated the answer books and the respondent No. 3 was one of the members of the Selection Committee, who was also associated in the written test, being the heads of the respective department. Both of them belong to ‘Meena’ community. 3 ‘Meena’ community candidates out of 5 in the first result, of the general category candidates, and one ‘Meena’ in the reserved category candidates were declared successful for viva-voce test. The respondents adopted malpractices and illegally favoured the aforesaid candidates as they also belong to ‘Meena’ community. Thus according to the stand of the learned counsel for the applicant, this is a case of favourtism and nepotism by them. Secondly, it is contended that the first result of the written test was announced on 13.3.96, without declaring the date for viva-voce test, vide Annexure A/I, whereas, the result of the reserved category candidates was declared on 20.3.96, as at Annexure A/2 with the date of viva-voce test, as on 25.3.96, that is to say, only
after 4 days, with a view to finalise their selection hurriedly. The applicant had already sent a telegram on 23.3.96, to the G.M. respondent No. 2, with a request to intervene into the matter, as at Annexure A/3. It is contended that after the result of the written test, atleast 15 days should have been given for oral test. This also goes to show their malafide intention in the matter. Finally, learned counsel for the applicant, contended that the General Manager has not filed any reply in this case. The respondent No. 2 has not signed the reply and its verification, as required under Section 19 of the CAT Act. The replies should have been filed by the respondents to clarify and, in case, it was not possible, the reply should have been filed, signed and verified by the person having delegated power or by Sr. Officer duly authorised. In absence of such authorisation in writing, the reply filed by any inferior authority should not be accepted by the Registry. Accordingly, he contends that the reply should be rejected as not properly and “legally filed. He has relied upon a decision of the Allahabad Bench of the CAT, as reported in ATR 1988(2) CAT 365 in support of his contention.
23. Mr. Vin, learned counsel for the respondents vehementally opposed the aforesaid contention of the learned counsel for the applicant. He contended that he, as a lawyer of 50 years of standing, could not have ventured to come with such a wild and unfounded allegation of mal-practice and malafide against the highly responsible officers, as respondents. The allegation of malafide is required to be specifically pleaded and proved on the basis of clinching evidence. There is nothing on the record to show that the source of information, as to who, found the successful candidates going at the residence of the respondent No. 3, and in what manner, the answers in the answer books were re-written or added. Simply because 3 ‘Meena’ conmmunities candidates became successful on merit, it can not be construed that they favoured them. He referred to some of the letters of the Higher authorities, according to which, the vacancies of the Ticket Collectors were required to be filled up expeditiously and, therefore, the respondents tried to finalise the selection process at the earliest. With regard to not filing the affidavit reply refuting the allegation in para-5, he contended that the reply has been filed on behalf of Railway Administration and the respondent No. 3, the Divisional Commercial Manager, being acquainted with the facts and circumstances has filed the affidavit reply on behalf of respondents. All the more, no objection on this score was taken and the same has already been taken on record by the Tribunal. Now, it is too late in the day to say that the reply was not filed with proper verification.
24. We gave our anxious consideration to the aforesaid submissions of the learned counsel of both the parties. It is settled principle of law that the malafide can not be inferred on the basis of vague allegation and they require higher degree of credibility and they should be based on strong foundation as ruled by the Hon’ble Supreme Court in the case of N.K. Singh v. Union of India, 1995 (1) LLJ 854. The learned counsel for the applicants relies upon a ruling of the Hon’ble Kerala High Court, in the case of P. Damodharan v. State of Kerala, as reported in 1982 (1) SLR 3, and contended that it can not be always possible to establish malice, in fact in a clear cut manner and that in appropriate case, it is possible to draw reasonable inference of malafide from the pleadings and instant facts and circumstances, and also, that person acts as malafide if he exercises the power perversely, unauthorisedly, improperly and unreasonably. According to him, the respondents in the instant case have exercised their power improperly and unauthorisedly, and, therefore, the allegation of malafide against them stand substantiated. As stated above, the pleadings on this point is not specific. There is a general and vague allegation, in as much as, the applicants have failed to disclose about the source of their information regarding visiting of the successful candidates at the residence of respondent No. 3, and, about offerring him gratification etc. There is also
no specific allegation as to how the successful candidates are related with the respondents. The vital links of facts are missing in the pleadings and the research for proof in the facts and circumstances of the case to substantiate this allegations would certainly be like a wild goose chase. As said above, the Hon’ble Supreme Court in the aforesaid case has clearly ruled that there must be a firm foundation of facts on pleadings and established and it can not be drawn on the assis of mere insinuation and vague suggestions. Accordingly, the contention of the learned counsel for the applicants on this score is difficult to be accepted.
25. Mr. Pathak, learned counsel for the applicants referred to the Express News Paper case, and contended that it is necessary that the person against whom such allegation of malafide is made, should come forward with an answer refuting or denying such allegation or otherwise, such allegation remain unrebutted and Court in such case be constrained to accept the allegation. He also referred to the decision of the Allahabad Bench, CAT, as reported in ATR 1988 (2) Page 65, as stated above, that the verification should be signed by the properly authorised Sr. Officers. But, in the instant cases, as said above, allegations of malafide is vague and general. The affidavits have been filed by the respondent No. 3, on behalf of the Railway Administration. Reply as filed by the respondents, has already been taken on record by the Tribunal without any objection on this score having been raised at the earlier stage. In such circumstances, it is difficult to accept the contention of Mr. Pathak that the absence of the affidavit denying the allegation of malafide by respondent No. 2, amounts to the acceptance of the allegations. Accordingly, the contentions on these scores are not acceptable. This issue is accordingly, decided in the negative, and is held that the allegation of malafide has not been established.
Issue No. 5:
26. For appreciation of the contentions as advanced by the learned counsels appearing on behalf of both the parties relating to this issues, we would like to extract the relevant rules, vide P. S. No. 247/90 dated 7.12.90, as at Annexure R/3.
3. 6 Written test and Evaluation of Question Papers :
Where a written examination is held to determine the suitability of the candidates, an Officers of the concerned department of appropriate rank may be nominated to set the question paper and Anr. to evaluate the same (EP 1025/0 dated 20.3.71)
3.6.1 Where a written examination is held for promotion to the highest selection post, (not for all) for about 50% of the marks for written test should be for objective type questions. The short syllabus for written test may be intimated, while notifying the eligibility (P.S. No. 116/84).
3.6.6 Where more than required number of questions have been attempted by the candidates, answers to the prescribed No. of questions alone should be evaluated in the order they appear on the answer sheets and the remaining answers should be ignored.
3.6.9 Selection Board members should be advised that there should be no overwriting and cuttings, erasure etc. in awarding marks as well as in the proceedings of selection. If this is found, serious objection will be taken. There should be scope of ralpractice, such as, scoring out marks already allotted or allowing candidates unauthorisedly to add the answers already written or tampering with the marks allotted by the evaluation (Con. No. EP/1025/0 dated 30.11.83).
3.6.10 Services of an Officer who is not a member of the Selection Board should not be taken.
3.6.11 Each sheet of the Answer Book is required to be signed by the officer in-charge of the centre of the examination and the invigilator.
3.6.12 In order to bring greater confidence amongest the staff, the system of giving code numbers to answer books before evaluation should be followed. Candidates should not be allowed to write their names or signatures on the Answer sheets. Only the top-sheet should be got filled in by the candidates. Confidential No. should be given by the Officer incharge of conducting the examinations both on the top sheet and on the answer book after the examination is over. The top sheet with confidential Nos. should be sealed, preserved and should be opened only on receipt of valued answer books with the code sheet. (Con. No. EP 1025/0 dated 1.8.86). Under no circumstances the Code No. should be revealed to any member of the Selection Board.
3.7
Allocation of marks :
Maximum Marks
(i)
Professional ability
”
(50, Written test 35, viva-voce 15)
(ii)
Personality, leadership and academic/ technic
qualifications
”
20
(iii)
Record of service
”
15
(iv)
Seniority
”
15
3.7.1.
Where Written test and oral test are held for
judging the professional ability, marks for written test should not be less
than 35.
3.8.
Qualifying marks for viva-voce test ;
3.8.1
Safety categories :
Candidates who secure 21 marks out of 35 marks in the written test (both for general and SC/ST candidates) as well those who secure 60% of the total marks, for written test and notional seniority together may also be called for viva-voce. This would enable considering some of the senior candidates who under earlier rules, were not eligible to be called for interview. Names of such candidates, who are called on the basis of written and seniority marks together should however be shown separately, while issuing notification for calling for viva-voce clearly indicating that they have been called for viva-voce taking into account the notional seniority marks. The notional marks for seniority should not be added for deciding eligibility for being called for viva-voce in respect of ex-cadre posts and general posts and also for promotion of staff from different categories. (P.S. No. 319/84, 19/88 and 233/88).
3.8.2 : Not-safety Category :
60% for all candidates including SC/ST in the manner indicated in para 3.8.1, above. For reserved vacancies, SC/ST candidates, who secure 50% marks with or without seniority marks should be included separately thereafter.
SC/ST employees who get less than 50% but minimum 7 marks out of 35 i. e. 20% marks
and above upto 50% for written test may be included for viva-voce against reserved vacancies, indicating this position also separately.
3.9 Eligibility for employment:
3.9.1 Safety Categories :
(a) 60% marks in professional ability and 60% in aggregate including seniority.
(b) If, in respect of reserved points, adequate number of SC/ST candidates do not qualify, SC/ST candidates who have secured 60% marks in professional ability and 60% marks in aggregate excluding seniority will be empanelled. 3.9.2 Non-safety categories : (a) For general candidates, same as in para 3.9.1. (a) above. (b) For SC/ST candidates, 50% marks if sufficient number of candidates securing 60% marks do not become available. The relaxed standard of 10% marks will apply separately for written test and oral test. In other words, considering SC/ ST candidates belonging to the reserved communities, 50%, relaxed standard shall be applied separately for the written test and for the aggregate excluding seniority marks. (c) If, despite application of relaxed standard, sufficient candidates belonging to SC/ST communities do not become available for vacancies reserved for them, best amongest the lot who secure at least 20% marks separately in the written test, in the viva-voce and in the record of service etc. and also in aggregate may be promoted on adhoc basis for six months-trial, during which period, they should be given necessary facility to pick-up the work. If they are found suitable, their names may be included in the panel below those who have already been empanelled provisionally otherwise papers may be put up to competent authority for dereservation. (P.S. No. 106/89).
27. Learned counsel for the applicants contended that according to the aforesaid procedure as laid down under rules, the written test should be confidential system. He elaborated his contention by stating that as per Rule 3.6.12, as at Annexure R/3, confidential no. should be given by the Officer in-charge conducting the examination both on the top-sheet and on the answers books after the examination is over. The tope-sheet with confidential nos. should be sealed, preserved and should be opened only on receipt of valid answer books with code-sheet. Under no circumstances, code no. should be revealed to any member of the Selection Board, (emphasis supplied)
28. The learned counsel for the applicants further referred to Rule 3.6.10 and 3.6.11, as above, and contended that the services of the Officer, who is not a member of the Selection Board should not have been taken, and each sheet of the answer books is required to be signed by the Officer in-charge of the Centre of the Examination and also, by one invigilator. These rules have been observed more in violance then in observing.
29. The learned counsel for the respondents, on the other hand, strenuously tried to repell the aforesaid contention of the learned counsel for the applicant by stating that the Asstt. Personal Officer of the department supervised the written test and he signed the answer books. The official in the confidential section gave code No. in the top-sheet as well as on the answer books. The respondent No. 2 and 3, did not supervise the exam and associated with the aforesaid process of the written test, and, therefore, there is no question of favouring any
employee or their community men as alleged. The Asstt. Personal Officer, who was Officer-in-charge, and supervised the examination, collected the answer books and handed over to the confidential section, and the confidential section carried out coding and de-coding process etc. The evaluation of the answer books were done by the respondent No. 2, who was associated with the selection process. It is pertinent to point out that the Personal Department as well as confidential section function under the direct control and supervision of the respondent No. 2 and 3 and as per Rule 3.6.10, the services of an Officer who is not a member of the Board should not have been taken in conducting the examination, and as per rules 3.6.12, under no circumstances, coded No. should be revealed to any member of the Board. The answer books were required to be signed by the Officer in-charge conducting the examination, and also, by one invigilator. We find that the written tests have clearly been held in violation of these rules. The respondent No. 2, who evaluated the answer books was not a member of the Selection Committee and as per Rule 219 (B) of the IREM Vol.1, the evaluation of the answer books should have been done by one of the members of the Board, who has not set the question papers for the written test. We may extract the relevant portion of the aforesaid rule as here under:
An Officer of the concerned department, who is also a member of the Selection Board must be authorised to set the question paper for written test. Where possible, another Officer, who is also a member of the Selection Board should be nominated to evaluate the answer books, if such a test is held as a part of the Selection for determining the professional ability. The test should be confidential system with roll numbers.”
30. It is not known as to who set the question papers, but it appears from the answer books, on examination by the Bench, that the respondent No. 2, evaluated the answer books, who is not a member of the Committee. The respondent No. 3 is one of the members of the Committee. Thus, the requirement of the aforesaid rule regarding evaluation of the answer books, also does not a appear to have been followed. It may be pointed out that the respondent No. 2 and 3, by virtue of their offices were in controlling position of the examination and selection processes at all stages. Therefore, we find it difficult to agree with the contention of the learned counsel for the respondents that they did not associate with the processes of the written test.
31. The next forceful contention of the learned counsel for the applicants is that the respondent No. 2 evaluated the answer books of the candidates, and purposely and intentionally gave lower marks, below 60% to the general category candidates, so that they may dis-qualify for being called in the oral test, and, thereby paved the way for the candidates, including ‘Meena’ candidates, whom they desired to be finally selected without competition in oral test, which comprise 50% of total marks. We would discuss this aspect of the matter in the succeeding paragraphs. Here, we would like to point out that in our anxiety to verify and examine the truthfulness or otherwise of the aforesaid stand of the learned counsel for the applicant. We called upon the department to produce the answer scripts, as agreed upon by the learned counsel for both the parties. Accordingly, at the hearing on 23.7.98, the learned standing counsel, Mr. Vin, on behalf of respondents, produced the answer books of the candidates for our perusal in sealed cover. The sealed cover was opened in presence of the learned counsels of the parties and some of the answer books were examined with their assistance. We find from the answer scripts, including those of applicant No. 1, applicant No. 5, and also of the selected candidates, namely, Sitaram Meena, whose name appears in the list, at Annexure A/2, that some answers had been scored out in green ink or red ink without giving marks. Mr. Vin learned counsel for the respondents failed to clarify the position in this
regard. Learned counsel for the applicant, Mr. Pathak, further pointed out that the answer books had been signed by the Supervisor only and not by one invigilator, as is required under rules referred to above. The evaluation was done by respondent No. 2, Mr. G.L. Meena who, being not a member of the Selection Board, was not competent to evaluate the answer books as per rule referred to above. We further found that some of the answers in the answer books were penned through, but still marked. Whereas, some of the answers were without marking, and penned through. Mr. Vin contended that the answers found in excess of the required number, and also, wrong, were penned through. We do not feel satisfied with the stand of Mr. Vin on this point, for the simple reason that the answers found wrong should have been evaluated by giving ‘Zero’ marks, and the answers of the last question found in excess, should have been scored or not evaluated as required under Rule 3.6.6. referred to above.
32. In view of the aforesaid factual position and the glaring instances of the irregularities and discrepancies of the answer scripts, we fail to persuade ourselves to accept that the evaluation was properly done, and, accordingly, the contention of the learned counsel for the applicants does not appear unfounded on this score and merit consideration for acceptance.
33. On the heel of it, a peep into the pattern of the allocation of the marks further strengthens the aforesaid contention of the learned counsel for the applicants. According to the marking pattern, 50% of the total marks is allotted to the professional ability, which comprises of 35% written test and 15% vive-voce and the rest of 50% marks consists of (i) 20% for personality, leadership and academic qualification, (ii) 15% records of service and (iii) 15% seniority, as provided under Rule 3.6.12. Further, Rule 3.8, and 3.8.1 read together, show that the general category candidates must obtain 60% marks, that is to say, atleast 21 out of 35, to become eligible for oral test and for the reserved category, a relaxed standard is prescribed under the aforesaid rules. It may be pointed out that as per the rulings of the Hon’ble S.C. in Vinod Kumar’s cases as reported in 1996 SCC (L & S) 480, the relaxed standard is not available to the reserved category candidates as per finding as at issue No. 3 above. Here it is the contention of the learned counsel for the applicants that the respondents, being aware of the requirement of the minimum qualifying marks for the general category candidates, and also, the aforesaid decision of the Hon’ble Supreme Court, intentionally gave lower marks to the general category candidates to eliminate them from the field, and to clear the deck for the reserved category candidates for final selection. Mr. Vin tried to repel the aforesaid contentions by saying that the successful candidates were not known to the respondents. They fetched 60% marks or more and it might have been a confidence that three of them belong to ‘Meena’ community to which the respondents belong to. However, it is not necessary to go into this aspect in view of our finding that the conduct of the examination and the evaluation of the answer sheets did not conform to the rules and instruction of the Railways and as such they cannot be sustained.
Issue No. 6 :
34. This issue was not pressed. In view of the order that is being made, it is not necessary to go into discussions of this issue.
35. To sum up (i) the respondents No. 2 and 3, being the heads of the Personal department and the Commercial department respectively, actively associated with the process of written test.
(ii) The written tests were conducted on two dates with one common compulsory question after a gap of about three months. This would vitiate the written test. (iii) The Asstt. Personnel Officer, who conducted the examination and the process
of coding was under the direct control of the respondent No. 2 and 3 and was not a member of the Selection Board, and, therefore, was not competent to conduct the examination under Rule 3.6.12. This is not to suggest that the respondent No. 2 had asked for and got the coded numbers which would identify the candidates. However, the intention of the Rule is that the examination and valuation should not only be fair hut should be seen to he fair. The fact that the officer who evaluated the answer sheets had access to the coded numbers clearly goes against the purpose sought to be achieved under Rule 3.6.12.
(iv) Answer books were not signed by one in violator as required under Rule 3.6.11. (v) The evaluation of the answer books was done by respondent No. 2, who was not a member of the Selection Board. It was in violation of Rule 219(B) as referred to above. (vi) The answer books were not properly evaluated, as have been found by the Tribunal on their scrutiny in presence of the learned counsels of the parties during the hearing. (vii) The relaxed standard in case of SC/ST in the written test for declaring them eligible for viva-voce test was not permissible in view of the dictum of the Supreme Court in Vinod Kumar's case (supra). (viii) The allegation of malafide is not established. 36. In the result We set aside the selection including the result of the written lest as at Annexure A/1 and A/2 and direct the Respondent No. 1 to hold fresh selection in accordance with rules.