AI Structured Summary
Not yet generated for this judgment
Judgment
Sunil Thomas, Member J
The applicant herein was employed under the respondents as a Track Maintainer. The 4th respondent the Senior Divisional Personnel Officer, Southern Railway of Trivandrum Division issued a notification inviting applications for selection to the post of Junior Engineers against 20% Limited Departmental Competitive Examination. 6 vacancies were notified, out of which, 5 were unreserved and 1 was earmarked to the scheduled caste. Being qualified, the applicant responded. Thereafter, a panel dated 9.1.2019 of the candidates who were successful and were eligible to be appointed was published. This was challenged by the review applicant by filing OA No. 337 of 2019. Another candidate, Subha Gopinath who was also not selected challenged the select list by filing OA No. 229 of 2019. She sought copies of answer papers under the Right to Information Act contending that the answers were either improperly evaluated or several of her answers were not evaluated. The Original Applicant requested to set aside the select list, to order re-evaluation and to declare that the applicant was entitled to be included in the Annexure A1 select list. This Tribunal allowed the OA and directed the re-evaluation of the answer sheets and re-tabulation of the marks. This was challenged by another candidate one B. Sutharson, in OP (CAT) 19 of 2021 on the ground that though in OA No. 229 of 2019, he was served with notice as a respondent, he could not file vakalath and reply statement in the said OA and the OA was heard and allowed without notice to him.
In the meanwhile, pursuant to the order of re-evaluation, a fresh list was published. That was challenged by the said B. Sutharson before this Tribunal by filing OA No. 383 of 2021 on the ground that in the earlier select list he was included and after re-evaluation he was excluded from the revised list. In the meanwhile, the review applicant herein filed OA No. 239 of 2021 also, challenging the entire process of selection.
In the meanwhile OP (CAT) 19/2021 was allowed by the Hon’ble High Court. The impugned order was set aside permitting the parties to complete their pleadings. It was directed that the question paper, the model answer key and the answer sheet of the applicant Smt. Suba Gopinath, the applicant in OA No. 229 of 2019 will be considered and to furnish a detailed report regarding the earlier re-evaluation. It was also directed that it should state how the original applicant Smt. Suba Gopinath therein has now been awarded 79 marks after re-evaluation.
Pursuant to the directions, an expert re-evaluated the answer sheets and filed a detailed report.
All the OAs came up for hearing before this Tribunal on 20.6.2023. Since Jayasumi, the review applicant had filed OA No. 337 of 2019 and OA No. 239 of 2021, the learned counsel for that applicant submitted that he does not propose to pursue OA No. 337 of 2019 and will be confining to the arguments raised in OA No. 239 of 2021. Accordingly, the OA No. 337/2019 was closed as not pressed, reserving the right of the applicant to advance arguments on the grounds set up in that OA.
All the other three OAs were heard together. A common order was passed in OA No. 229 of 2019 and OA No. 383 of 2021. By that order, OA No. 229 of 2019 was disposed of in terms of the expert’s report. The selection and appointment of the applicant therein as Junior Engineer was approved. The respondents were directed to regularize the applicant in the service as per Annexure A6 rank list produced in OA No. 383 of 2021. OA No. 383 of 2021 was held to be without any merit and accordingly, it was dismissed. By a separate order, OA No. 239 of 2021 was also dismissed.
Aggrieved by the dismissal of OA No. 239 of 2021 the applicant has filed this review application on a premise that there was an error apparent on the face of record of the original order.
Heard both sides and examined the records.
Before proceeding to consider the review application on merits, in the light of the nature of contention set up in the review application, it is essential to evaluate the position of various candidates as per the original panel published by the respondents on 9.1.2019 with the respective marks obtained by each of the candidates as per the statement of the Railways. The position was as follows:
Sl.
No.
Name, Designation & station Smt./Sri
Marks obtained in written
test out of 50
Marks obtained in record of service out of 30
Total
Marks
Obtained
out of 80
Remarks
1
Sneha P.A.(SC) TM-III/CKI
P.F. No. 13F01665
40.5
24
64.5
Against
UR
2
Rajeev Mandanan (SC) TM.IV/NCJ P.F. No. 13040538
40
23
63
Against
UR
3
C.V. Soumesh
TM-IV/QLN P.F. No. 13C00196
40
23
63
Against
UR
4
Remya Raj (SC) TM-III/KTYM P.F. No. 13F32376
38.5
23
61.5
Against
UR
5
B. Sutharson TM-I/NCJ P.F. No. 04294210
37
24
61
Against
UR
6
Dhanya A.S.(SC) TM-III/AWY P.F. No. 13F32364
38
23
61
Against
SC
Thereafter pursuant to the direction in OA No. 229 of 2019, an exercise was undertaken for re-evaluation/re-tabulation of the answer sheets and marks. After re-evaluation, the revised panel drawn was as follows:
Sl. No.
Name, Designation & station Smt./Sri
Marks obtained in written test out of 50
Marks obtained in record of service out of
30
Total
marks obtained
out of 80
Remarks
1
Sneha P.A.(SC) TM-III/CKI P.F. No. 13F01665
40.5
24
64.5
Against
UR
2
Rajeev Mandanan (SC) TM.IV/NCJ P.F. No. 13040538
40
23
63
Against
UR
3
C.V. Soumesh TM-IV/QLN P.F. No. 13C00196
40
23
63
Against
UR
4
Subha Gopinath TM-III/ERS P.F. No. 16413F59132
39.5
23
62.5
Against
UR
5
Remya Raj (SC) TM-III/KTYM
P.F. No. 13F32376
38.5
23
61.5
Against
UR
6
Dhanya A.S.(SC) TM-III/AWY P.F. No. 13F32364
38
23
61
Against
SC
The re-evaluated marks of the applicant in OA No. 229 of 2019 and the review applicant herein were shown separately in the reply statement as follows:
Sl. No.
Name, Designation
& station Smt./Sri
Marks obtained in written
test out of
50
Marks obtained in record of service out of 30
Total marks obtained out of 80
Remarks
1
Subha Gopinath TM-III/ERS P.F. No. 13F59132
39.5
23
62.5
UR
2
Jayasumi S.J. TM-IV/TVC P.F. No. 14F67986
40
21
61
UR
According to the respondent Railways, the marks secured by the applicant in relation to her record of service was as under:
a.
APAR/PR
3(2015-16) + 4 (2016-17) + 4 (2017-18) = 11 (Based on records available)
b.
Educational qualification
04 (Non-technical degree – MA in English)
c.
Service Record
7 – 1 = 06 (Since there is an entry of minor penalty)
Total marks in record of service out of 30 = 21
She had secured 40 out of 50 in the written examinations which make her aggregate score to 61 out of 80.
Thus, the applicant herein got 40 marks for the written examination out of 50 and 21 marks for her record of service marks, totaling to 61 marks.
OA No. 239 of 2021 was laid by the applicant on four specific grounds. The crux of the contention of the applicant was that she was not included in the panel on a premise that she was undergoing a penalty of withholding of increment covering the period 1.7.2017 to 30.6.2020. The case of the applicant was that the notification inviting applications for the LDCE was issued on 5.7.2017. Consequently, it was contended that only the APARs prior to 1.4.2017 should have been taken into consideration for evaluating her service records. However, she contended that the Railway had taken into consideration the APARs for the period 2015-16, 2016-17 and 2017-18. It was contrary to the Rules, it was contended.
The first contention set up by the applicant was that treating the date of notification as the cut off date, service records prior to it alone could have been taken into consideration. It was secondly contended that APARs which were considered were readily prepared at a stretch and collected after the selection process had commenced, which was not in accordance with the Rules. Thirdly, it was contended that the applicant’s service records was not even considered by the selection committee on the premise that penalty was in force. The applicant had the right to be considered for the purpose of selection, and her case could not have been left out of consideration on the premise that penalty was in force. It was lastly contended that the respondents proceeded on a wrong premise that the applicant was undergoing a major penalty whereas the penalty imposed on the applicant was a minor one.
Each of the above contentions were dealt with by this Tribunal in the order now sought to be reviewed. After appreciating the contention advanced on the strength of the principles involved in the decisions relied on by the applicant, this Tribunal came to the conclusion that there was considerable force in the contention of the applicant and held that the authority should have relied only on the service records prior to the period 31.3.2017.
After having held that there was substantial ground in the contentions set up by the applicant, this Tribunal proceeded to hold that after the direction in OA No. 229 of 2019, a decision was taken by the Railways to re-evaluate and re-tabulate the marks of all the candidates including the applicant herein and all contentions in panel preparation were considered. Thereafter a panel was prepared. Ultimately it was found that the applicant in OA No. 229 of 2019 Smt. Subha Gopinath was liable to be placed in between original candidates at serial Nos. 3 & 4. It was also held that since three persons namely B. Sutharson, Dhanya A.S. and the applicant herein scored 61 marks each, merit was to be assigned on the basis of seniority by considering the date of their entries in the present grade. B. Sutharson was the senior most employee among the three. Applicant being junior could not be accommodated. Dhanya A.S. who belonged to SC category was charged in the 6th place. Since the case of the applicant was also considered, this Tribunal refused to grant any relief to the applicant. On this premise this Tribunal dismissed OA No. 239 of 2021, notwithstanding acceptance of all her legal contentions.
The learned counsel for the review applicant vehemently contended that this conclusion of the Tribunal at paragraphs 17 to 18 was in conflict with the earlier findings at paragraphs 9 to 14. This Tribunal after having accepted the contention of the applicant proceeded to hold that the applicant got 61 marks along with two other candidates and having evaluated the comparative competency of all the three such candidates, held that the applicant was not entitled to get any relief. It was contended that this Tribunal omitted to take note the crucial fact that for the entry of minor penalty in the APAR, one mark was deducted. Once APAR subsequent to 1.4.2017 was liable to be eschewed, the question of penalty, whether major or minor, became irrelevant. Consequently, the deduction of one mark for the penalty also would became unwarranted and consequently the mark for service record would be 7 marks. That would have escalated the mark of the applicant to 62, much above that of B. Sutharson and Dhanya A.S. This crucial factor was omitted by this Tribunal, while moulding the reliefs. To that extent, we find that the applicant has made out a case for review of the order.
However, we are faced with another situation due to changed circumstances. It is seen that the review application was filed on 27.9.2023. An OP (CAT) No. 117 of 2023 was filed by B. Sutharson challenging the order in OA No. 383 of 2021. The OP (CAT) was reported to have been disposed of and the submission regarding it, was recorded by this Tribunal on 31.1.2024. It is seen from a copy of the judgment of the Hon’ble High Court made available to us that Subha Gopinath, Dhanya A.S., Remya Raj and C.V. Soumesh were parties to the proceedings, apart from the official respondents. Since review applicant was not a party to OA No. 383 of 2021, necessarily she was not a party to OP (CAT). Though the Railways and private respondents were parties to the OP (CAT), it seems that none of them brought to the notice of the Hon’ble High Court about the pendency of review application. Consequently, the applicant herein could not have legal knowledge about the pendency of the OP (CAT). The Hon’ble High Court held that since the action arising out this peculiar situation was attributable to the Railways, none of the candidates should be prejudiced. It was noted by the Hon’ble High Court that Dhanya A.S. ought to have been sent out to accommodate the original petitioner B. Sutharson. It was brought to the notice of the High Court that an SC vacancy existed subsequently and by an interim order passed on 17.11.2023, it was observed by the Hon’ble High Court that Dhanya A.S. should be accommodated against that vacancy and B. Sutharson should be accommodated against the post of Dhanya A.S. which was available to the unreserved category. Remya Raj was directed to be accommodated against the SC vacancy. It was also held that the original petitioner B. Sutharson will be entitled to notional benefits and seniority in the post from the original date on which Dhanya A.S. was appointed.
It seems that the case of the applicant herein who was also affected by the action of the Railways was not brough to the notice of the High Court. In these peculiar circumstances though we are satisfied that the applicant has made out a case for review and that her valid case for entitlement has been established, no order granting review can be passed, since the order of the Hon’ble High Court in OP (CAT) No. 117 of 2023 has become final. No order touching that order can be granted. Hence, we feel that it is not appropriate case in which the order granted by this Tribunal could be recalled. The applicant will have to work out her remedies by due process of law.
The Review Application is accordingly, closed.