A ASHOK KUMAR vs BHARAT SANCHAR NIGAM LIMITED on 31 December 2019

ORDER

**By Shri B. V. Sudhakar, Member (A):**

1. 2. OA is filed aggrieved by the impugned order dated 9.1.2014 rejecting the request of the applicant for proper evaluation of answer sheets in respect of Junior Accounts Officer (JAO) Part II Examination held in December, 2012.

2. 3. The factual matrix is that the applicant who was working as Telephone Operator in the respondents' organisation since 1985, appeared and cleared the JAO Part I Examination in 2007 but failed to clear the JAO Part II Examination conducted in 2010. Made another attempt to get through the exam in 2012 but was not successful. When marks were sought and obtained it became evident that the applicant got 38 marks against the required 40 marks in Paper IV. Applicant made several representations to review the answer sheets for awarding proper marks in Paper IV and there being no response they were obtained under RTI, wherein certain discrepancies in regard to valuation process, valuation etc were noticed. The same when pointed out, respondents did not act leading to filing of OA 1409 of 2013, wherein respondents were

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directed to dispose the representations of the applicant. Accordingly, respondents examined and rejected the request of the applicant on 9.1.2014. Aggrieved, present OA has been filed.

4. The contentions of the applicant are that the impugned order is mala-fide, illegal and is violative of Articles 14 & 16 of the Constitution of India. Applicant claims that there was discrimination in evaluation by citing the evaluation of answer sheets of some of his colleagues. Answer sheets were not meticulously evaluated as laid down in Appendix No.37 of P&T Manual IV and that the instructions issued by Ministry of Communications & Information Technology vide letter dated 2.8.2010 have been given a go by. Even awarding of grace marks was not considered though in the past it was done and more particularly in the context of large number of JAO vacancies lying unfilled.

5. Respondents contest the submissions of the applicant by stating that the applicant claiming more marks in Paper IV based on self evaluation is meaningless. The question of discrimination in evaluation of answer sheets does not arise. Applicant failed due to his poor performance. Rule 15 of P&T Manual Volume IV [Appendix 37] prohibits reevaluation of answer scripts. The Circular dated 2.8.2010 relied upon by the applicant was issued by Dept. of Posts and not applicable to BSNL. Grace marks cannot be claimed as a matter of right. Availability ✓

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of vacancies does not entitle a candidate for selection. Respondents cited the judgments of the superior judicial forums in support of their contentions.


6. Heard both the counsel and perused the pleadings on record.

7. A) The dispute raised in this OA is that the respondents have not properly evaluated Paper IV of JAO part II exam held in 2012 resulting in the applicant failing the examination. As the issue pertains to the career of the applicant, it would be proper and appropriate to address in depth the relevant issues contested by both the parties.

***I. Primarily have the respondents discriminated the applicant in evaluating paper IV answer sheet by awarding 38 marks against 40 required?***

At the outset, it should be appreciated that the candidates do put their heart and soul in preparing for the exam, since it concerns their future. Similarly respondents would have made elaborate arrangements for conducting the exam by incurring substantial expenditure and engaging manpower to invigilate, evaluate and declare the results. It is a cumbersome exercise which has to be dealt with all the sensitivity it requires. The decision should necessarily be in the interest of the organisation and the employees at large. The basic parameters of an Q ✓

5OA No.1392/20The logo of the Central Administrative Tribunal, featuring a circular emblem with a central wheel-like design and the text 'Central Administrative Tribunal' around the perimeter.

exam are reliability and validation. Reliability and validity are to be tested in respect of all parameters associated with an exam, commencing from setting of the paper, conduct of the exam, evaluation and announcement of results. In the instant case applicant has alleged discrimination in regard to evaluation. Respondents to keep up the sanctity of the evaluation process have taken measures to see that the identity of the Evaluators is not known to the candidates and similarly candidates about the identity of the Evaluators. Unless the Evaluator knows the candidate whose paper is being corrected or the candidate knows who the Evaluator is, to approach for any pecuniary gain, there can be no room for discrimination in evaluating the answer scripts. The applicant has not contested this fact of identity of evaluators/candidates in the OA. Besides, it is a normal practice to select senior officers of integrity and knowledge to evaluate answer sheets. Therefore, as the identity of the evaluators and the candidates are not known to each other, the question of discrimination or awarding of lower marks to the applicant does not arise. It should not be lost sight of the fact that 19 candidates have been declared successful by the same set of evaluators who are Experts/Senior officers having knowledge in the relevant subject in compliance with Part IV (4) of Appendix No.37 of P&T Manual Volume IV. Applicant based on self analysis of the answer sheet alleging discrimination in evaluation is difficult to appreciate. Attributing Q✓

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deficiencies in the examination process after failing in the same is unfair to say the least. True to speak one should introspect as to whether one has faired poorly in the exam and attempt to improve rather than frivolously litigate on the matter as observed by the Hon'ble Lucknow Bench of Allahabad High Court in Sri Ram Swarath & Others v. Union of India & Others in W.P.No.2696/2004 on 17.12.2004.

***II. Is the Circular issued by Ministry of Communications & IT dated 2.8.2010, relied upon by the applicant, applicable to the case on hand?***

The cited Circular has been issued by the Department of Posts. BSNL is an independent Corporation and it has its own rules to be followed. The Department to which BSNL looks to, for any clarification is the Department of Telecommunication. Applicant has not produced any Circular issued by Department of Telecommunication nor by BSNL stating what has been stated in the Department of Posts letter referred to. BSNL and Dept. of Posts are two different entities. One is a Government Department and the other, a Public Sector Enterprise with an ocean of difference in regard to the rules governing H.R issues. Functions, roles and responsibilities are entirely different. Consequently, an executive instruction issued by Postal Department by any stretch of imagination would not be applicable to the employees of BSNL. It is for

7OA No.1392/2014The logo of the Central Administrative Tribunal, featuring a circular emblem with a wheel in the center, surrounded by the text 'Central Administrative Tribunal' and 'भारत' (India) at the bottom.

BSNL to prescribe a rule to be followed and which it did by declaring that Rule 15 – Appendix-37 of P&T Manual Volume IV rules the roost in regard to revaluation of answer books. The Rule 15 is extracted hereunder:

*"15. Revaluation of answer books - Revaluation of answer scripts is not permissible in any case or under any circumstances."*

The rule emphatically does not permit any revaluation in any case and under any circumstances. Learned counsel for the applicant argued that Postal Department and BSNL come under the same Ministry, which we agree, but each Department has a set of distinct business rules to be abided by in letter and spirit. Otherwise the plethora of rules framed for a given department when applied to the other department under the same Ministry, will result in administrative chaos. A lineman cannot be administered by rules governing a postman. Hence, from any perspective the cited Circular of Department of Posts does not apply to the case of the applicant. Besides, the rule cited by the respondents proscribes any revaluation. True to speak, rules of the organisation are to be followed strictly as observed by the Hon'ble Supreme Court in a catena of judgments as under:

The Hon'ble Supreme Court observed in **T.Kannan and ors v. S.K. Nayyar (1991) 1 SCC 544** held that *"Action in respect of matters covered by*

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*rules should be regulated by rules".* Again in **Seighal's case (1992) (1) supp 1 SCC 304** the Hon'ble Supreme Court has stated that "*Wanton or deliberate deviation in implementation of rules should be curbed and snubbed.*" In another judgment reported in (2007) 7 SCJ 353 the Hon'ble Apex court held "*the court cannot de hors rules*"


Respondents followed the relevant rule and we do not find any error on this count. Seeking directions to direct respondents act in contravention of the applicable rule would go against the directions of the Hon'ble Apex Court referred to above.

**III. What does law state in regard to revaluation of answer sheets?**

(a) This aspect was adjudicated upon on several occasions in different judicial forums, wherein it was broadly held that in the absence of any statutory rule providing for revaluation of answer sheets, Courts should not order revaluation and that the Courts should not step into the shoes of an Expert/Expert Body to reevaluate. Moreover, it is not for the Courts to order respondents to relax the norms in regard to assessing answer sheets. The observation of the Hon'ble Supreme Court of India in **HP Public Service Commission v. Mukesh Thakur and another** in Civil Appeal Nos.897/206 & 907/2006 seals the issue, as under:

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"14. It is settled legal proposition that the court cannot take upon itself the task of the Statutory Authorities.


XXX

24. The issue of re-evaluation of answer book is no more res integra. This issue was considered at length by this Court in Maharashtra State Board of Secondary and Higher Secondary Education & Anr. Vs. Paritosh Bhupesh Kurmarsheth etc. AIR 1984 SC 1543, wherein this Court rejected the contention that in absence of provision for re-evaluation, a direction to this effect can be issued by the Court. The Court further held that even the policy decision incorporated in the Rules/Regulations not providing for rechecking/verification/re-evaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision.

XXX

25. This view has been approved and relied upon and reiterated by this Court in Pramod Kumar Srivastava Vs. Chairman, Bihar Public Service Commission, Patna & Ors, AIR 2004 SC 4116 observing as under:

"Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for re- evaluation of his answer-book. There is a provision for scrutiny only wherein the answer-books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totalling of marks of each question and noting them correctly on the first cover page of the answer-book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for re- evaluation of answer-books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his marks." (emphasis added)

26. A similar view has been reiterated in Dr. Muneeb Ul Rehman Haroon & Ors. Vs. Government of Jammu & Kashmir State & Ors. AIR 1984 SC 1585; Board of Secondary Education Vs. Pravas Ranjan Panda & Anr. (2004) 13 SCC 383; President, Board of Secondary Education, Orissa & Anr.

Q

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Vs. D. Suvankar & Anr. (2007) 1 SCC 603; The Secretary, West Bengal Council of Higher Secondary Education Vs. Ayan Das & Ors. AIR 2007 SC 3098; and Sahiti & Ors. Vs. Chancellor, Dr. N.T.R. University of Health Sciences & Ors. (2009) 1 SCC 599.

27. Thus, the law on the subject emerges to the effect that in absence of any provision under the Statute or Statutory Rules/Regulations, the Court should not generally direct revaluation."

b) Further, the Judgments cited by the respondents given hereunder do not give any leeway to extend the relief as sought by the applicant.

i) Hon'ble High Court of Allahabad in WP No.34725/04 relating to Sneha Bhansora, has observed as under:

*"The High Court cannot step into the shoes of the an expert body and examine the answer book or reevaluate the marks given in the answer books on its own."*

ii) Hon'ble Lucknow Bench of Allahabad High Court in W.P No 2696/2004 in **Sri Ram Swarath Verma & ors v Union of India & ors**, has advised petitioner therein *"to work hard for securing more marks to clear the exam rather than wasting time in frivolous litigation."*

iii) Hon'ble High Court of Andhra Pradesh did not grant relief in a similar issue when approached vide W.P.No.26528/2005 & W.P.No.6357/2006 filed by **Sri Gummadid Babu & ors** and **M. Jaya Rao** vide judgments dated 28.12.2009 & 3.9.2007 respectively.

11OA No.1392/2014The logo of the Central Administrative Tribunal is a circular seal. It features a central emblem with a sunburst design. The text 'Central Administrative Tribunal' is written in a circular path around the emblem. At the bottom of the circle, the date 'March 2014' is inscribed.

In the instant case, there is a statutory provision expressly prohibiting the revaluation of answer sheets as referred to above. On telescoping the facts of the case on to the law laid down as cited, revaluation is ruled out. Applicant has quoted an executive instruction of a different department which has no say in the respondent's organisation. Besides, the answer sheets were evaluated by Experts/Senior Officer, who are well versed with the subject. This Tribunal has neither the expertise nor the wherewithal to reevaluate the answer sheets and, therefore, as ordained in the legal principles stated supra, it should avoid entering into a domain which it is refrained from entering into. Hence, in terms of law too, there is no scope to entertain the relief sought by the applicant.

***IV. Can the decision of the respondents rejecting the request of the applicant for grant of grace marks found fault with ?***

The awarding of grace marks is a matter of policy. Purely it is the discretion of the respondents to grant or otherwise based on organisational requirements and circumstances prevailing. Just because the respondents granted grace marks in the past, it can be no reason to direct the respondents to do so in the case of the applicant. Being a policy matter, it is best left the respondents. In fact, the Tribunal should not generally interfere in a policy matter as per the legal principles laid down by the Hon'ble Supreme Court in the following verdicts:

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(a) Union of India v. S. Maadasamy, (2019) 6 SCC 674 : (2019) 2

SCC (L&S) 198 : 2019 SCC Online SC 646 at page 683:


"10. Xxxx

*There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."*

(b) Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, is very much relevant:- *"37. The Indian courts have scrupulously refrained from entering into the domain of policy determination or policy evaluation while exercising the power of judicial review. This Court has emphasised that it does not sit in appeal over a policy decision and does not substitute nor does it examine the wisdom of the policy choice. It interferes with policy decision only when it finds the policy to be palpably arbitrary, mala fide or discriminatory."*

c) Hon'ble Principle Bench of this Tribunal in OA No.1071 of 2011 has held that *"It is not for the court to give directions to the respondents to have liberal approach in assessing answer sheets of candidates in the exam or giving relaxation in marks or any condition of recruitment or promotion."*

The emphasis is that the Tribunal should dissuade itself in directing respondents to be liberal in assessing answer sheets since it has policy

13OA No.1392/2014A circular seal of the Central Administrative Tribunal, India. The outer ring contains the text 'Central Administrative Tribunal' at the top and 'India' at the bottom. Inside the ring is a sunburst emblem with a central wheel-like design. Below the emblem, there is text in Hindi script.

ramifications. Therefore, in view of the above observations of the superior judicial forums, applicant has no right to claim for grace marks.

It is understandable that having failed Paper IV by two marks the applicant has attempted to unearth any scope under the rules to get through the exam. However, unless a candidate comes up to the standard prescribed for a given examination, he will not get qualified. Applicant failed to secure 40 marks in Paper IV and thus stands disqualified. The yardstick stipulated for the exam has to be uniformly applied to all the candidates who appeared which the respondents did. Relaxing the standard as requested by the applicant would de-sanctify the sanctity of the exam unless the respondents decide as a policy to relax the standard lock stock and barrel. Applicant has not brought out any instance of any other candidate being granted grace marks. Therefore, the decision of the respondents to not to award grace marks to the applicant cannot be found fault with.

**V. Does the availability of vacancies entail a candidate to be selected?**

An examination for selection or for promotion is conducted with certain threshold levels to be crossed for being declared as qualified. Unless candidates clear the threshold levels they are apparently disqualified. The threshold levels are determined based on the job skills

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and job design. The expectation is that those who clear the examination have the set skills to manage the positions for which they are selected for or promoted to. The threshold levels are no way related to the vacancies but define the standards to be attained to be declared as suitable. Those who could not come up to the standard requisite will fall by the way. Hence, the argument of the applicant that since vacancies are available, he could have been considered as qualified by awarding grace marks in Paper IV lacks logic.


B) To conclude, respondents conducted the exam, got the answer sheets evaluated by senior officers and announced the results following relevant rules. Indeed 19 of the successful candidates have joined as JAOs and are reported to be working, as claimed by the learned standing counsel. The issue has thus attained finality. Applicant could not make it by two marks in Paper IV, which led to the germination of this OA, but rules and law are not in his favour as expounded in paras supra.

C) Thus, we find no error in the decision of the respondents in not granting the relief sought for by the applicant, since it was taken as per rules and in accordance with law, as was brought out lucidly in the preceding paras while deliberating on the relevant averments made by the applicant. Hence, in sum and substance, we find no merit in the

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OA. Therefore, the OA being devoid of merit, merits dismissal and hence dismissed with no order as to costs.

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केस संख्या: OA 1392/2014 C. NO. 14258 पेश: 31-2-2019 RECEIVED सुनवाई/पेश READY ON: 7-1-2020 Ning 7/1/2020 अधिसचिव, लोकपाल Deputy Commissioner Officer लोकपाल Central Tribunal सुनवाई/पेश Bench

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