Allahabad High Court

Indian Council Of Agriculture ... vs Central Administrative Tribunal ... on 28 May, 2018

Bench: Sudhir Agarwal, Ifaqat Ali Khan




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 
Case :- WRIT - A No. - 11359 of 2013
 

 
Petitioner :- Indian Council of Agriculture Research Through Director
 
Respondent :- Central Administrative Tribunal and others 
 
Counsel for Petitioner :- N.P.Singh
 
Counsel for Respondent :- S.C.,Dr. G.S.D. Mishra
 

 
Hon'ble Sudhir Agarwal, J.

Hon'ble Ifaqat Ali Khan, J.

1. Heard Sri N.P. Singh, Advocate, for the petitioner and Dr. G.S.D. Mishra, Advocate, for respondents.

2. This writ petition under Article 226 of Constitution has come up against judgment and order dated 20.05.2011 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad (hereinafter referred to as "Tribunal") whereby it has allowed Original Application (hereinafter referred to as "OA") No. 1616 of 2004 and OA No. 1584 of 2004 directing petitioner to get merit list revised after having copies of the examination revalued by Examiners.

3. It appears that a selection was held for the post of Assistant Administrative Officer vide letter dated 05.03.2002 conducted by Indian Veterinary Research Institute (hereinafter referred to as "IVRI"). Selection process comprised of written examination which was held between 06.05.2002 to 10.05.2002. Result was declared on 22.07.2002 wherein respondents 2 and 3 were selected and promoted on the post of Assistant Administrative Officer. Certain complaints were received by Secretary, Indian Council for Agriculture Research, Krishi Bhavan, New Delhi (hereinafter referred to as "ICAR") which was communicated to IVRI and thereafter complaint was examined wherein several irregularities in the assessment of copies etc. were noticed. Consequently, by order dated 18.02.2003, entire selection was cancelled giving following reasons:

"i. Marks once awarded were changed by the evaluator by way of increase.

ii. Marks once awarded were changed by the Evaluator by way of decrease.

iii. Marks were awarded to wrong answers.

iv. Final marks put up on the top sheet of the answer book were more than that what was actually awarded against the answers of the question.

v. Evaluation of certain answer was not made at all.

vi. Deviation was made from the scheme and Syllabus of the examination by setting subjective type.

vii. Some questions were set from out side syllabus.

viii. Marks allotted to various questions were not indicated in a question paper and the evaluator himself decided the allotment of marks to different questions.

ix. ACRS were not recorded/evaluated properly."

4. By order dated 19.02.2003, respondents-2 and 3 were also reverted in view of cancellation of entire selection by order dated 18.02.2003. Respondents made representations which were rejected. Thereafter, aforesaid OAs were filed wherein respondents-2 and 3 did not challenge cancellation order dated 18.02.2003 but challenged only the order passed on their representations. The relief sought in the OAs are reproduced as under:

"i. That the Hon'ble Tribunal may kindly be pleased to quash the order dated 27.11.2004 passed by the respondent No. 3.

ii. That the Hon'ble Tribunal may kindly be pleased to direct the respondents to not create any hindrance of peaceful working of the applicant as Asstt. Administrative Officer and pay his salary month to month when it become due with all consequential benefits."

5. Objection was raised by petitioner before Tribunal that in absence of challenge to the order dated 18.02.2003, which was fundamental order whereby selection was cancelled, the subsequent orders rejecting applicants-respondents' representation will not result in giving any fresh cause of action to them and in fact the subsequent orders are nothing but rejection of representations by respondents, hence OAs, in absence of any challenge to original order dated 18.02.2003, are not maintainable. However, Tribunal has not accepted the said contention and has decided OA by judgment dated 20.05.2011 and operative part of the judgment reads as under:

"15. In view of the above both the OAs are allowed to the following extents:

a. The impugned order dated 27.11.2004 (in both the OAs) are hereby quashed and set aside. The respondents are directed to reevaluate the papers removing all the deficiencies as contained in para 1 to 7 of the show cause notice dated 17.05.2003 (Annexure A-10) and where necessary, for out of syllabus portion moderation marks may be allotted uniformly to all the candidates on the basis uniformly to all the candidates on the basis of reevaluation of answer sheets.

b. The revised merit list be formed and promotions to the extent of such vacancies notified be made. In case applicants do not figure in the merit list then they shall be reverted, if they are still working on the said post of AAO (as stated in para 9 of the written arguments submitted by the learned counsel for the respondents).

c. The above order may be complied with within a period of three months from the date of receipt of copy of this order.

No cost."

6. When questioned, learned counsel for applicants-respondents could not dispute that the selection was cancelled vide order dated 18.02.2003 but the said order was not challenged. It is this very order which has given rise to subsequent orders and it is also not in dispute that this order was in the knowledge of applicants-respondents having been referred to in OAs but not challenged.

7. It has been repeatedly held that if the substantive order is not challenged, no order can be passed so as to nullify it. In P. Chitharanja Menon and others Vs. A. Balakrishnan and others, AIR 1977 SC 1720 Court held that in absence of challenge to the basic order subsequent consequential order cannot be challenged. Similarly in Roshan Lal and others Vs. International Airport Authority of India and others, AIR 1981 SC 597 it was held that unless basic order is challenged the consequential orders neither can be challenged nor be examined by the Court. This Court has also followed the above law of the Apex Court in Gaon Shiksha Samiti, Auraiya and another Vs. State of U.P. and others, 2003(3) AWC 2466.

8. Moreover, on merits also, since Tribunal has not found that reasons given by petitioner for cancellation of selection were factually incorrect, we do not appreciate the approach of Tribunal in directing revaluation of copies in absence of any provision of revaluation. Neither Tribunal has found that there was any provision for revaluation nor learned counsel for parties dispute before us that there is no provision for revaluation.

9. In Maharashtra S.B.O.S. And H.S. Education Vs. Paritosh AIR 1984 SC 1543 Court has clearly taken the view that in absence of provision of revaluation, direction to that effect cannot be accorded. Said view has been reiterated again in Pramod Kuamr Srivastava Vs. Chairman B.P.S.C. Patna AIR 2004 SC 4116.

10. Referring to various authorities on the subject, Apex Court in its a very recent judgment in Taniya Malik Vs. The Registrar General of High Court of Delhi AIR 2018 SC 1245 has held the under:

"Now we take up the second submission with respect to revaluation of answer-scripts. It is settled proposition of law that in the absence of provision it cannot be ordered. In Himachal Pradesh Public Service Commission v. Mukesh Thakur & Anr. (2010) 6 SCC 759, this Court has considered various decisions and observed:

"24. The issue of revaluation 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 and Anr. v. Paritosh Bhupesh Kurmar Sheth 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/ reevaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision. The Court held as under:

"14. ...It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. ...

16. ... The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any draw-backs in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act."

25. This view has been approved and relied upon and re-iterated by this Court in Pramod Kumar Srivastava v. Bihar Public Service Commission, (2004) 6 SCC 714 observing as under:

"7. ....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 totaling of marks of each question and noting them correctly on the first cover page of the answerbook. 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 reevaluation 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)

A similar view has been reiterated in Dr. Muneeb-Ul-Rehman Haroon (Dr.) v. Govt. of J&K State (1984) 4 SCC 24; Board of Secondary Education v. PravasRanjan Panda (2004) 13 SCC 383; Board of Secondary Education v. D. Suvankar (2007) 1 SCC 603; W.B. Council of Higher Secondary Education v. Ayan Das (2007)8 SCC242; and Sahiti v. Dr. N.T.R. University of Health Sciences (2009) 1 SCC 599.

26. 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."

In Mukesh Thakur (supra) it was laid down that in the absence of provision for revaluation it cannot be resorted to .... In our opinion, for examination in question in the absence of provision for revaluation when the examination was held, it could not be resorted to."

11. In view of above, impugned judgment of Tribunal cannot be sustained.

12. The writ petition is allowed. Impugned judgment dated 20.05.2011 passed by Tribunal in Original Applications No. 1616 of 2004 and 1584 of 2004 is hereby set aside and both the Original Applications are hereby dismissed.

Dt. 28.05.2018

Case :- WRIT - A No. - 11359 of 2013

Petitioner :- Indian Council of Agriculture Research Through Director

Respondent :- Central Administrative Tribunal and others

Counsel for Petitioner :- N.P.Singh

Counsel for Respondent :- S.C.,Dr. G.S.D. Mishra

Hon'ble Sudhir Agarwal, J.

Hon'ble Ifaqat Ali Khan, J.

1. This is an application seeking condonation of delay in filing substitution application.

2. Heard.

3. Cause shown for delay in filing substitution application is sufficient.

4. Condoned.