Smt. Nilima Naveen Dole v. Union of India & Ors.

Judgment

5. WRIT PETITION UNDER ARTICLE 227 OF THE CONSTI'rUTION OF SNDIA FOR ISSUANCE OF APPROAPRIA7E WRST/WRITS. DIRECT10NS ETC.. IN THE NATURE OF MANDAMUS. CER710RARI AhD/OR ANY 07NER SUITABLE WRIT OF LIKE NA7URE fi'F'f, HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (S.) No.1168 of 2008 Petitioner Smt. Nilima Naveen Dole VersLLS Respondents Union of India and others Judgment for consideration Hon'ble Shri Justice Satish K. Aanihotri J Sd/- J ufl'ge -2-2012 Sd/- Satish K. Agnihotri Judge Post for pronouncement of order on the >2Zdayof February, 2012 Sd/- R.S. Sharma Judge 7TF ^\ HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Satish K. Aanihotri and Hon'ble Shri Justice Radhe Shyam Sharma Writ Petition (S.l No.1168 of 2008 Petitioner Smt. Nilima Naveen Dole versus Respondents Union of India and others

Present: Dr. N.K.Shukta, Senior Advocate with Shri Sudeep Agrawal, counsel for the petitioner. Shri Raghvendra Pradhan, counsel for respondents No.1 to 3. None for respondent No.4. Writ Petition under Article 227 of the Constitution of India ORDER (Passed on February, 2012) PerRadhe Shyam Sharma, J-: By the instant petition, preferred under Article 227 of Constitution of India, the petitioner seeks quashing of order dated 30-8-2007 (Annexure P-12) passed by the Central Administrative 'the Tribunal') in O.A.No.633/2006, Tribunal, Jabalpur (henceforth order dated 4-10-2007 (Annexure P-14) passed by the Tribunal Review Application No.27/2007 and grant of all consequential service benefits.

2. Facts of the case, in brief, are that the petitioner appeared in Fast Track Promotion Examination held by the Department of Posts for promotion from the post of Postal Assistant to the L.S.G. Cadre in the year 2004. She was promoted and posted as Assistant Sub Post Master vide order dated 12-4-2005 (Annexure P-2). She '^ •.^fc;-3i ^•^^,^ ^^ started discharging duties of the said post. However, all of a sudden, a memo dated 25-4-2006 (Annexure P-4) was served upon her stating therein that respondent No.4 K.K. Dewangan had secured higher marks than her, therefore, her name would be deleted from the select (Annexure P-1). She submitted representation (Annexure P-5) to respondent No.3 - the Senior Superintendent of Post Offices, Durg Division, against the memo (Annexure P-4), but the representation was not decided and ultimately she filed O.A.No.485/2006 (Annexure P-6) before the Tribunal. The Tribunal, vide its order dated 19-7-2006, directed respondents No.1 to 3 herein to consider and decide her representation by a reasoned and speaking order after affording her an opportunity of hearing. After hearing the petitioner, respondent No.3, by order dated 29-8-2006 (Annexure P-7), directed deletion of her name from the list (Annexure P-1) of successful candidates for the post of Assistant Sub Post Master (L.S.G. Cadre). Being aggrieved with order dated 29-8-2006 (Annexure P-7), she filed the application, being O.A.No.633/2006 (Annexure P-8) before the Tribunal. The Tribunal, by its order dated 30-8-2007 (Annexure P-12), dismissed theapplication holding that her name was rightly deleted from the list of successful candidates. She also moved Review Application No.27/2007 (Annexure P-13) for review of order dated 30-8-2007 (Annexure P-12). By order dated 4-10-2007 (Annexure P-14), the Tribunal dismissed Review Application No.27/2007. Thus, the instant petition. ^^••;..- •^-. -2/1fe.

3. Dr. N.K.Shukla, learned Senior Advocate appearing for the petitioner argued that the order passed by respondent No.3 reverting the petitioner from the post of Assistant Sub Post Master (L.S.G. Cadre) is contrary to the facts as well as law. Deleting the name of the petitioner is without having any eriquiry and, therefore, the same is violative to Article 31 1 of the Constitution of India. The order was passed by Senior Superintendent of Post Offices, who was not a competent authority. Before deletion of name of the petitioner, no opportunity of hearing was afforded to her. Revaluation was done after six months, which is against the rules prevalent in the Department of Posts. In Postal Manual, sufficient safeguards are provided to avoid any mistake in publishing the result, but the said safeguards have not been followed by the concerned authorities. No action has been taken against those authorities therefor. Therefore, the result could not be reviewed. The petitioner has been working as an Assistant Sub Post Master (L.S.G. Cadre) for near about two years. Her name has been deleted after lapse of two years, which is wholly impermissible in law. If a mistake occurs even after taking ordinary care and due diligence, in such a circumstance, that mistake can be rectified, but in the instant case, no ordinary care or due diligence has been taken. The name of the petitioner was deleted without affording her proper opportunity of hearing, which is against principle of natural justice. Hence, the impugned orders (Annexures P-12 and P-14) passed by the Tribunal are not sustainable and deserve to be quashed, and promotion of petitioner deserves to be restored. He placed reliance on Postal Manual Volume IV Appendix No.37 Part 1 -General Rules 12, 14, m^ 15 and 17 and instructions for examiners. He also placed reliance on West Bengal State Electricity Board vs. Patel Engineering Co. Ltd. and others, AIR 2001 SC 682, Roshni Devi and others etc.vs. State of Haryana and others, AIR 1998 SC 3268 and U.P. Public Service Commission vs. Satya Narayan Sheohare and others, AIR 2009 SC (Supp) 1881.

4. Shri Raghvendra Pradhan, learned counsel appearing for respondents No.1 to 3 argued that only three posts, i.e., two posts for unreserved candidates and one post for candidate belonging to Scheduled Tribes were available for L.S.G. Cadre for Durg Division in the year 2004. The examination was held on 26-5-2004 to 28-5-2004. In the said examination, 12 candidates, including the petitioner, had appeared. The result was declared by the circle office on 16-12-2004. The petitioner was declared successful and she was promoted and posted as Assistant Sub Post Master (L.S.G. Cadre). Respondent No.4 submitted a representation before respondent No.2 raising objection to the effect that threepersons were appointed against two posts for unreserved category. On considering the representation and examining the matter, concerned authorities came to know that respondent No.4 K.K.Dewangan had secured higher marks than the petitioner, therefore, the result of the said examination was reviewed by respondent No.2 Chief Post Master General, Chhattisgarh Circle. He further argued that thereafter a show cause notice (memo) was issued to the petitioner on 25-4-2006 (Annexure R-1). The petitioner submitted her reply dated 25-6-2006 (Annexure R-2), which was ' \ ^^^s' ' ^l^ received on 26-6-2006. After considering the objection raised by the petitioner and affording her opportunity of personal hearing, compliance of order dated 19-7-2006 passed by the Tribunal O.A.No.485/2006, the competent authority, vide order dated 29-8-2006 (Annexure R-3), directed deletion of name of petitioner from the list of successful candidates. Order dated 29-8-2006 (Annexure R-3/Annexure P-7) passed by the competent authority and the impugned orders (Annexures P-12 and P-14) passed by the Tribunal are in accordance with law and they do not for any interference by this Court. The petitioner does not deserve any relief sought for in the instant petition.

5. We have heard learned counsel for the parties and have perused the pleadings and the documents appended thereto.

6. There is no dispute that Fast Track Promotion Examination was held by the Department of Posts for promotion from the post of Postal Assistant to the L.S.G. Cadre from 26-5-2004 to 28-5-2004 and the result was declared on 16-12-2004. The name of the petitioner found place in the select list (Annexure P-1). She was promoted and posted as Assistant Sub Post Master, Bhilai-1 vide order dated 12-4-2005 (Annexure P-2). Vide memo dated 25-4-2006 (Annexure P-4), the name of the petitioner was ordered to be deleted from the select list. Thereafter, the petitioner filed the application, being O.A.No.485/2006 (Annexure P-6), before the Tribunal. Vide order dated 19-7-2006, the Tribunal directed the Senior Superintendent of Post Offices, Durg Division, to consider and decide the representation of the petitioner by a reasoned and i! ^'^: ^sy speaking order within a period of one month from the date of receipt of a copy of the order of the Tribunal. It was also desired by the Tribunal competent authority, while deciding representation of the petitioner, shall grant her an opportunity of personal hearing. After affording opportunity of hearing to the petitioner, order dated 29-8-2006 (Annexure P-7) was passed by the Senior Superintendent of Post Offices, Durg Division, for deleting the name of the petitioner from the select list (Annexure P-1 ).

7. This Court had directed respondent No.1 to produce the original answer sheets of the petitioner and respondent No.4, revaluation sheet as well as tabulation sheet, by order dated 25-1-2012,

8. Tabulation sheet prepared with reference to mark lists received from examiner and list of candidates appeared and marks obtained by them have been submitted before this Court. Learned counsel for respondents No.1 to 3 submitted that the answer sheets are kept in record for a period of one year only and, therefore, after lapse of prescribed period of one year, the requisitioned answer sheets have been destroyed.

9. We have perused the relevant rules contained in Postal Manual Volume IV Appendix No.37 Part 1 - General. Rules 12, 14, 15and 17 readthus: "12. Tabulation of results.—J[}eresults of departmental examinations should be tabulated by or under personal supervision of a responsible official, who will be personally responsible for their safe custody and the ^m^ ^^J^- ^^^..^" 7 ^^ maintenance of strict secrecy with regard to them. Such tabulated marks should invariably be checked, in their entirety, by an officer other than the one by whom they have been entered; and no mistake or ambiguity however slight, should be allowed to creep therein. Note.—Themark lists and result sheets should be treated as Secreteven after the announcement of results (cf.Rules13).

14. Retotalling and Verification of marks.—(a) If a candidate desires the retotalling of his marks and verification of the fact that alt answers written by him have been duly assessed by the examiner, he should submit an application in the prescribed form (as shown in Annexure III) and pay the prescribed fees. The fees for this purpose is Rs.5 per paper. (b) The procedure for payment and accounting of such fees will be the same as laid down in Rule 13(b). (c) Such applications must be submitted within six months from the date of announcement of respective results. Any applications submitted thereafter should not be entertained. (d) The retotalling and verification of marks should be carried out by anofficer other than the one who had originally valued the answer scripts concerned. No remuneration will be payable for this work. (e) The fee paid for retotalling of marks will not be refundable in any circumstances. Note.—1 It must be clearly understood that the only scrutiny intended in this Rule is as shown in clause the answers written by a candidate (a) viz., whether all (provided that required to be attempted) have been assessed, and that in excess of they are not the number there is no mistake in the totaling ofthe marks. Note.—2 In cases where results departmental Director-General's Circular, the period of six ^y ^..^' months referred to in sub-rule (c) will be counted from the date of such a Circular.

15. Revaluation of answer iboo/cs.—Revaluation of answer scripts is not permissible in any case or under any circumstances.

17. Preservation of result sheets and answer books.— (a) Tabulated result sheets or mark sheet registers of departmental examinations should be preserved for a period of ten years from the date of announcement of the respective results. (b) Answer books in respect of all departmental examinations should be preserved for a period of twelve months from the date of announcement of the respective results."

10. From perusal of Rule 17, quoted above, it is apparent that the answer sheets in respect of all departmental examinations are preserved for a period of twelve months from the date of announcement of the results and thereafter the same are destroyed. Therefore, respondents No.1 to 3 could not be able to submit the requisitioned answer sheets. Respondents No.1 to 3 submitted tabulation sheet prepared with reference to mark lists received from examiner and list of candidates appeared and marks obtained by them.

11. In the instant case, revaluation of the answer sheets or retotalling of the marks has not been done, only the result has been reviewed. Therefore, the above Rules 14 and 15 are not applicable to this case. In the above referred to tabulation sheet, marks ;;^ obtained by the petitioner and respondent No.4 are mentioned as under:- s. No.

37. Roll No. Name candidate Commu- Division Marks obtained Paper II Paper 1 Paper III CG/04/LSG Exam/30 CG/04/LSG Exam/37 Krishna Ku. Dewangan Smt. Nilima Navin Dole o/c o/c Durg Durg 57 46 45 57 54 51 Total Remarks Marks 156 154 52% Pass 51.33% Pass

12. Respondent No.4 Krishna Kumar Dewangan submitted representation dated 25-1-2006 before the competent authority. After due consideration and examination of the said representation, respondent No.2 Chief Post Master General, Chhattisgarh Circle, Raipur, during the review, discovered that the petitioner was mistakenly declared successful in the said departmental examination despite having secured lesser marks than respondent No.4 Krishna Kumar Dewangan. Therefore, only the result was reviewed.

13. In Alka Ojha vs. Rajasthan Public Service Commission and another, AIR 2011 SC 3547, the Hon'ble Supreme Court observed thus: "20. ..... The submission ofthe learned counsel that this Court should invoke Article 142 of the Constitution and direct the competent authority to allow the petitioners to continue in service because they have already completed more than 5 years' service sounds attractive but merit. In our view, the power under Article 142 cannot be exercised for conferring legitimacy to the appointment of the petitioners, who, as held hereinabove, were not eligible to be considered for selection. The Commission had provisionally allowed the petitioners to take part the written test and the interview, but their tentative selection was cancelled because at the stage of final scrutiny, it was found that they did not possess one of the 10 prescribed qualifications i.e. driving licence authorizing them to drive motor cycle, heavy goods vehicles and heavy passenger vehicles. competent authority was compelled to appoint Notwithstanding this, petitioners because while entertaining special appeals, the Division Bench ofthe High Court declined to stay the direction given by the learned Single Judge. the course suggested by the learned counsel for the If petitioners is adopted, then every illegal appointment will get regularized by judicial fiat and those who are eligible and more meritorious will deprived constitutional to be fairly considered for selection and appointment against the advertised posts. ....."

14. In Rupa Rani Rakshit and others vs. Jharkhand Gramin Bank and others, (2010) 1 SCC 345, the Hon'ble Supreme Court observed thus: "12. It is now well settled that if an appointment or promotion is made without considering the claims of all the available eligible candidates and/or without following the relevant rules, the service rendered in pursuance of such illegal appointment or promotion cannot be equated to service rendered in pursuance of an appointment or promotion validly and lawfully made. Whenever a person following the rules is promoted to a post without prescribed for such promotion, he should be treated as a regularly promoted person post. Consequently, where promotions are governed by the Rules, in computing the length of service, in the post to which an employee is promoted, is not permissible to include the period of service rendered in pursuance of an illegal promotion which is subsequently set aside." ^^/ 11

15. In Chairman, All India Railway Recruitment Board and another vs. K. Shyam Kumar and others, (2010) 6 SCC 614, the Hon'ble Supreme Court observed thus: "37. Proportionality requires the court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably followed. Proportionality is more concerned with the aims and intention of the decision- maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. The court entrusted with the task of judicial examine whether decision taken by the authority is review has to proportionate i.e. well balanced and harmonious, to this extent the court may indulge in a merit review and if the court finds that the decision is proportionate, interferes with the decision taken and if it finds that the it seldom decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere."

16. In Karnataka Power Corpn. Ltd. and another vs. A.T.Chandrashekar, (2007) 9 SCC 558, the Hon'ble Supreme Court observed thus: "9. decrease and as noted above, ..... It is not a question whether there is increase or the ultimate question is there was any rationality in the evaluation. whether Though it was really not a case of mass malpractice, the Corporation only undertook re-evaluation as the Chief Examiner had conducted test checks resulting in wide variation of marks without anyjustifiable reasons."

17. In the instant case, revaluation of the answer sheets or retotalling of the marks has not been done, only the result has been 'fT .?'^ 12 reviewed. Therefore, the plea taken by the learned Senior Advocate for the petitioner that no application shall be entertained after six months from the date of declaration of the result is not acceptable.

18. Relevant part of memorandum dated 25-4-2006 (Annexure P- 4) reads thus: "As per orders of Competent Authority the result of Departmental Examination of Fast Track Promotion to LSG Cadre for the Year 2004 held on 24 to 28 May 2004, issued vide Circle Office Memo No. AD(S)/Con/FTP LSG Exam/2004 dated 16/12/2004 is revised vide Circle office Memo No.AD(S)/Con/FTP LSG Exam/2004/51 dt. 10/04/2006 and accordingly Shri K.K.Dewangan (OC) candidate of Departmental Exam of Fast Track Promotion to LSG Cadre for the Year 2004 under Roll No. CG/04/LSG Exam/30 who has secured more marks than Smt Nilima Navin Dole is declared successful in place of Smt Nilima Navin Dole (OC) Roll No. CG/04/LSG Exam/37. The name of Smt Nilima Navin Dole will be deleted from the select list notified vide C.O. Memo dated 16/12/2004."

19. The petitioner earlier filed O.A.No.485/2006 (Annexure P-6) before the Tribunal. In the said original application, the petitioner nowhere pleaded that memo dated 25-4-2006 (Annexure P-4) was not issued by a competent authority. Annexure P-5 is representation 25-6-2006 made petitioner the Senior Superintendent of Post Offices, Durg Division. It appears that order dated 29-8-2006 (Annexure P-7) was passed by competent authority in compliance of order dated 19-7-2006 passed by the Tribunal O.A.No.485/2006, therefore, the argument advanced by learned 13 Senior Advocate for the petitioner that the said order was not passed by a competent authority has no force.

20. After giving show cause notice to the petitioner, she was afforded with a proper opportunity of hearing and, thereafter, order dated 29-8-2006 (Annexure P-7) was passed by the competent authority.

21. The question of reversion can only arise when a valid and proper promotion has been given. If promotion has been given by mistake then a subsequent reversion made with a view to rectify such mistake cannot be considered as reversion. The official respondents realised the mistake and corrected the same. During the review, when it was discovered that the petitioner was mistakenly declared successful but she had secured lesser marks than respondent No.4 Krishna Kumar Dewangan then the name of the petitioner was deleted from the list of successful candidates. Therefore, the mistake has rightly been rectified by respondents No.1 to 3 by deleting the name of the petitioner from the select list and reversion of the petitioner in consequence of the said rectification cannot be treated as reversion.

22. We have considered all the aspects in the light of decisions cited above. We do not find any illegality or error of jurisdiction in passing the impugned orders by the Tribunal.

23. Consequently, the writ petition is dismissed. No order asto costs. Gopal Sd/- SatishK.Agnihotri Judge Sd/- R.S. Sharma Judge