W.P.(C)/6505/2013 of UNION OF INDIA & ORS Vs KULDEEP KUMAR

$~27 TO 37

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on : 30.07.2014

+W.P.(C) 6505/2013UNION OF INDIA AND ORS.VersusKULDEEP KUMAR

…..Petitioners…Respondents

+W.P.(C) 6539/2013UNION OF INDIA AND ORS.VersusNEHA KADAM+W.P.(C) 6571/2013UNION OF INDIA AND ORS.VersusSIDHARTH GUPTA+W.P.(C) 6585/2013UNION OF INDIA AND ORS.VersusBHAGWAN SAHAI MEENA+W.P.(C) 6789/2013UNION OF INDIA AND ORS.VersusAJAY KUMAR AND ORS.

…..Petitioners…Respondent…..Petitioners…Respondent…..Petitioners

…Respondent

…..Petitioners…Respondents…Respondents

+W.P.(C) 6792/2013UNION OF INDIA AND ORS.VersusRAHUL AND ANR.

…..Petitioners…Respondents…Respondents

+W.P.(C) 339/2014, C.M. NO. 666/2014UNION OF INDIA AND ORS.Versus

…..Petitioners

RUBY AND ANR

…Respondents

+W.P.(C) 355/2014, C.M. NO.708/2014UNION OF INDIA AND ORS.…..PetitionersVersusANJALI…Respondent+W.P.(C) 762/2014, C.M. NO.1528/2014UNION OF INDIA AND ORS.…..PetitionersVersusSHRUTI…Respondent+W.P.(C) 5106/2013UNION OF INDIA AND ORS.…..PetitionersVersusSONIA…Respondent+W.P.(C) 5192/2013UNION OF INDIA AND ORS.…..PetitionersVersusVARSHA…RespondentThrough: Dr. Ashwani Bharadwaj with Sh. AnkurChhibber and Ms. Archana Gaur, Advocates, forpetitioners in Item Nos. 27 to 37.Sh. Sachin and Sh. J.P. Tiwari, Advocates, forrespondent in Item No. 28.Sh. Vikas Mishra, Advocate, for Resp. No.2 inItem No.33.Ms. Jyoti Singh, Sr. Advocate with Sh. S.K. Gupta,Ms. Tinu Bajwa, Sh. Amandeep Joshi, Ms. SahilaLamba and Sh. Sameer Sharma, Advocates, forrespondent in Item No.35.

CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

1.The Union of India (UOI) is writ petitioner in theseproceedings under Article 226 of the Constitution of India. It isaggrieved by common order of the Central Administrative Tribunal(CAT) dated 05.04.2013 in O.A. No.4215/2011 and other connectedcases.

2.An advertisement was issued on 20.08.2010 for recruitment ofPostal Assistants - 320 vacancies were notified in various categories.It is not in dispute that the recruitment process encompassed writtentest, an aptitude test and computer test. While for the aptitude test,50% weightage was allowable, upto 40% weightage was to be givenfor the qualifying board/12[th]standard marks and weightage of 10marks was to be given for the computer test. The respondentapplicants, amongst several others, were declared successful andoffered appointment. They apparently accepted the offer and joinedthe services some time in 2011. After this development, one of theunsuccessful candidates, i.e. Tarkeshwar Prasad submitted queriesunder the Right to Information Act (RTI). Along with this, hedemanded the answer sheets in respect of the aptitude tests of certaincandidates. He thereafter represented to the UOI alleging graveirregularities in the marking of certain candidates’ answer sheets in theaptitude test. This led to review, which involved re-evaluation of theanswer sheets of all 1425 candidates who responded to the recruitmentprocess. The answer sheets in the aptitude test, enabling the candidatesto secure upto 50% weightage (that can be secured in the recruitment

process) were specifically gone into in each case. It was found that inthe case of 11 successful candidates who had reported for duty, themarking was inaccurate. Of these, there were grave irregularities inrespect of four candidates in that even though the candidates attemptedthe aptitude test to the extent of something between 25-30 marks,more– nearly double or some times even triple the marks - have beengiven. In the case of seven others, however, the re-evaluation yieldedresults which were marginally different, in that the respondents wereshown to have obtained 1% or less than what was awarded to themactually. The concerned authorities were able to pin-point the role ofcertain officials, against whom departmental action was proposed andis said to have been taken.

3.In light of these developments, the UOI issued revised meritlist on 12.03.2012 in which the 11 individuals, who were found tohave obtained less marks were not shown as successful candidates. Itinitiated consequential action to remove the said respondents, whichwas challenged before the CAT in the proceedings which ultimatelyculminated in the impugned order. It is not disputed that during thependency of the proceedings, 6 of the respondents’ services wereprotectedthroughimpugnedorders,theother5stoodremoved/terminated from employment.

4.Before the CAT, the respondents/applicants’ contention wasthat in the absence of any power to re-evaluate the answer sheets, theemployer (UOI) could not have ordered such course of action. It wasalso contended that the wholesale action in directing the removal of all

candidates regardless of their culpability, was arbitrary. The CAT, inits impugned order, upheld the first contention and held that even ifthere is no express power enabling the UOI to re-evaluate the answersheets, nevertheless, it ought to have taken recourse to certain generalcirculars in the circumstances and that the facts of the case, to justifythe re-evaluation of all the 1425 answer sheets. After considering thesubmissions of the parties, the CAT took nuanced position in that itdid not quash the entire merit list drawn after the re-evaluation. TheCAT in this regard held as follows:

“12................strictly speaking we should also quash therevised merit list prepared on the basis of re-evaluation ofanswer sheets. However, if we do so we would be deprivingmany meritorious candidates who have made it to the meritlist as result of revaluation, from gaining employment forno fault of theirs. According to the information supplied bythe respondents the number of such candidates is about 14.Further, there are 7 candidates who are in between thoseselected on the basis of revised merit list and those reverted.Since we are ordering that reverted candidates be takenback in service, the 7 candidates who are above the revertedcandidates in merit list also deserve to be providedemployment. Considering these facts and circumstances ofthe case, we are restraining ourselves from quashing therevised merit list and giving liberty to the respondents toappoint the 14 candidates who have made it to the revisedlist and the 7 candidates who are in between candidates inthe merit list and those reverted, if they so desire.

XXXXXX”

5.The UOI contends that the impugned order is erroneous in thatit makes distinction between those who were involved or culpablesome what in that recruitment process, with respect to the award of

marks to them and those who were not so culpable. Learned counselsubmitted that the CAT fell into error in holding that in the absence ofspecific powers, the UOI could not have reviewed or re-evaluated theanswer sheet. It was highlighted that when serious irregularities suchas those which were discovered in the present case are brought to thenotice of public agency or department, it is duty-bound to takeremedial action where the rules and regulations or any policies enableit to do so or otherwise. According to him, the absence of any specificrules or circulars in this case did not inhibit the valid exercise ofexecutive powers in such circumstances. It was submitted that both theconclusions with respect to lack of authority for re-evaluation and thefurther direction to take appropriate action without quashing therevised merit list were unwarranted. Learned counsel for one of thecandidates - Deepanshu Saxena, respondent in one of the writpetitions, who was impleaded in the course of proceedings before theCAT also supports the contentions of the UOI. He, however, submitsthat there is no question of not giving effect to the revised merit list asthat would itself amount to violation of Article 14 of the Constitution.

6.Learnedcounselfortherespondents submitted that theconclusions of the CAT are justified because in the absence of rules orregulations, the postal department could not have re-evaluated theanswer sheets in respect of any of the tests which were part of therecruitment process. It was contended next that as regards theoperative directions, the CAT’s findings are in consonance withseveral rulings of the Supreme Court, particularly Vikas Pratap Singh

and Ors. vs. State of Chhattisgarh and Ors. AIR 2013 SC 3414;Vinodan T. and Ors. vs. University of Calicut and Ors. 2002 (4) SCC726; Girjesh Shrivastava and Ors. vs. State of M.P. and Ors. 2010(10) SCC 707 and Buddhi Nath Chaudhary and Ors. etc. vs. AbahiKumar and Ors. 2001 (2) SCR 18.

7.From the above discussion, it is apparent that two issues requireconsideration by this Court – (i) Whether the CAT’s conclusions withrespect to the legality of re-evaluation, based upon its understandingthat absence of any rules or regulations or policy enabling such re-evaluation, inhibit the petitioner/UOI from undertaking such exercise;and, (ii) whether in the given circumstances of the case, the directioncontained in para 12 of the impugned order is justified and valid. As tothe first question, this Court is of the opinion that the CAT clearly fellinto error in holding that in the absence of any power of re-evaluationof answer sheets, the UOI, as recruiting agency, could not haveundertaken such exercise. The provisions for re-evaluation enable thecandidates to seek such relief. However, absence of such power,especially in the case of recruitment to posts in the case of publicemployment would not ipso facto inhibit the concerned agency fromseeking such re-evaluation. This power has to be understood as partof the inherent executive power to review its own decisions, in light ofthe subsequently discovered or found facts. In the present instance,there is no shadow of dispute that the queries of Tarkeshwar Prasadyielded results that were startling and challenged the legitimacy of therecruitment process. The UOI’s decision to have all the answer sheetsof the candidates re-evaluated was part of non-discriminatory moveby it, subjecting everyone to the same standard. This stand stoodvindicated when at least in four instances, it was found that thecandidates were actually entitled to far lesser marks than what wasawarded to them. At the same time, re-evaluation had anotherconsequence in that several candidates who would otherwise havebeen below the cut-off marks were found to have obtained one percentless than what was awarded to them and at the same time, severalothers were found to have secured more than one percent; the lattercategory was 14 in number as is apparent from the reading of theimpugned order, especially para 12.

8.The CAT in this case took what, in our opinion, is nuancedposition in that it did not uphold. In such circumstances, the view ofthe Supreme Court [refer to Vikas Pratap Singh (supra)] is that, wherethe revised list discloses that some candidates were earlier declaredsuccessful but did not make it to the grade or fell below the cut-off listin the revised list for no fault of theirs, those candidates should not bepenalised. There are, of course, certain limitations to such rule ofequity. In the present case, we notice that there were four candidates,who were awarded grossly higher marks which had no correlation totheir performance. Their cases stand on an entirely different footing asdepartmental action was directed against the officer who apparentlycolluded with them. In such case, there is no question of granting anyrelief, much less on the basis of their unwarranted inclusion in thegraded list and subsequent appointment. Their candidature was

originally cancelled/terminated. The UOI is aware as to who theseindividuals are. They are before this Court – the respondents inW.P.(C) 6505/2013 (Sh. Kuldeep Kumar); W.P.(C) 6792/2013 (Sh.Rahul); W.P.(C) 5106/2013 (Ms. Sonia) and W.P.(C) 5192/2013 (Ms.Varsha). If any of these are beneficiaries of the interim orders duringpendency of these proceedings, it is made clear that the UOI would bejustified in terminating their employment; the impugned order, to thatextent, is set-aside in respect of those individuals. Consequently, theoriginal applications preferred by them stand dismissed. As far as therespondentsintheotherproceedings,i.e.W.P.(C)6539/2013;W.P.(C)6571/2013;W.P.(C)6585/2013;W.P.(C)6789/2013,W.P.(C)339/2014;W.P.(C)355/2014andW.P.(C)762/2014areconcerned, we are of the opinion that the directions of the CAT are inthe facts and circumstances of the case justified. The review in theform of re-evaluation, at least in this instance, has operated ratherharshly. It is nobody’s case that these individuals were in any mannerinvolved, which resulted in their inclusion in the select list and theirconsequential appointment. In the earlier portion of this judgment, thedecision in Vikas Pratap Singh (supra) was noticed. The SupremeCourt took note of other judgments having regard to the facts of thecase therein, i.e. the re-evaluation resulting in 26 appellants notfiguring in the select list, and proceeded to protect their employmentin the following terms:

“25.Admittedly, in the instant case the error committedby the Respondent-Board in the matter of evaluation of theanswer scripts could not be attributed to the Appellants as

they have neither been found to have committed any fraudor misrepresentation in being appointed qua the first meritlist nor has the preparation of the erroneous model answerkey or the specious result contributed to them. Had thecontrary been the case, it would have justified their ousterupon re-evaluation and deprived them of any sympathy fromthis Court irrespective of their length of service.

26.Inourconsideredview,theAppellantshavesuccessfully undergone training and are efficiently servingthe Respondent-State for more than three years andundoubtedly their termination would not only impinge upontheeconomicsecurityoftheAppellantsandtheirdependants but also adversely affect their careers. Thiswould be highly unjust and grossly unfair to the Appellantswho are innocent appointees of an erroneous evaluation ofthe answer scripts. However, their continuation in serviceshould neither give any unfair advantage to the Appellantsnor cause undue prejudice to the candidates selected quathe revised merit list.

27.Accordingly, we direct the Respondent-State toappoint the Appellants in the revised merit list placing themat the bottom of the said list. The candidates who havecrossed the minimum statutory age for appointment shall beaccommodated with suitable age relaxation.”

9.Havingregardtotheabovecircumstances,evenwhileupholding para 12 of the impugned order, it is clarified that the UOIshall proceed to pass appropriate orders, giving effect to the revisedmerit list to the extent that the 7 candidates who secured higher marksshould be now offered appointment and at the same time ensuring thatthe candidates who will be displaced by these seven candidates areprotected from termination. Such of them who have in fact been

terminated during the pendency of the proceedings shall be offeredappointment.Necessaryconsequentialactionintreatingtheseappointments as against vacancies which exist as on date or if need be,to adjust them against the future vacancies to the extent necessary,shall be taken. It is made clear that the appointments shall be treated asfresh appointments and such incumbents, i.e. those who secured lowermarks in the revised list would not be entitled to claim seniority forany prior date. The writ petitions and pending applications are allowedto the above extent.

JULY 30, 2014ajk

S. RAVINDRA BHAT(JUDGE)VIPIN SANGHI(JUDGE)