Delhi Development Authority vs Sh.Surendra Kumar Meena
2011 Latest Caselaw 4978 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.7399/2011

%                       Date of Decision: 10.10.2011


Delhi Development Authority                                .... Petitioner

                     Through Mr.Dhanesh Relan, Advocate


                                 Versus


Sh.Surendra Kumar Meena                                  .... Respondent


                     Through Mr.Daleep Singh, Advocate



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.      Whether reporters of Local papers may             YES
        be allowed to see the judgment?
2.      To be referred to the reporter or not?            YES
3.      Whether the judgment should be                    NO
        reported in the Digest?

ANIL KUMAR, J.

*

1. Issue notice to the respondent. Mr. Daleep Singh, Advocate,

accepts notice on behalf of the respondent and states that reply to the

notice is not to be filed. The counsel for the parties contend that the

writ petition be heard and disposed of finally on the basis of the record

of the Tribunal produced along with the writ petition.

2. The petitioner, Delhi Development Authority, has challenged the

order dated 18th March, 2011 passed by the Central Administrative

Tribunal, Principal Bench in OA No.3555/2010 titled as „Surendra

Kumar Meena v. DDA and Ors.‟, allowing the original application of the

respondent and setting aside the order dated 21st May, 2010 passed by

the petitioner declining the request of the respondent for fixing his

seniority from an earlier date, on the ground that there was no

provision for re-evaluation of answer sheet in the Recruitment Rules

and therefore the answer book of the respondent could not be re-

evaluated and he could not be declared successful in the limited

departmental examination for promotion for the post of Asstt. Director

(Min).

3. Relevant facts to comprehend the disputes between the parties

are that the respondent belongs to the Scheduled Tribe community and

was appointed on 21st August, 1989 as LDC in the DDA. Thereafter, the

respondent had been promoted up to the post of Assistant Director and

at the time of filing the original application, he was working on the said

post.

4. In the year 2001, the respondent was working as Assistant and

had become eligible for promotion to the post of Assistant Director

(Administration) after completing 5 years of service in the grade of

Assistant. Pursuant to a Circular dated 19th October, 2001, the

respondent applied for the post of Assistant Director (Administration).

For the said promotion, the examination was conducted in July and

August, 2005 and the result was declared on 16th January, 2006.

5. In the examination conducted for promotion for the post of

Assistant Director (Administration), the respondent was declared not

qualified in the subject Hindi. The respondent sought information under

Right to Information Act, 2005 and the marks obtained by the

respondent was disclosed as Paper-1: 56/100; Paper-2: 60/100; Paper-

3: 81/100; Paper-4: 36/150 (Hindi); Paper-5: 41/150. The respondent

had not been declared qualified as the minimum qualifying marks in

each paper was 40%, while aggregate was to be 45%. Since the

respondent had got 36 marks out of 150 in Paper-4, even though his

aggregate was more than 45%, he was declared unsuccessful.

6. The Scheme of the examination contemplated relaxation of marks

of Scheduled Tribe candidates up to 20 marks, however, this relaxation

had not been granted to the respondent at that time though other

Scheduled Caste and Scheduled Tribe candidates were granted

relaxation of 20 marks. The respondent also disclosed that other

Scheduled Caste employees, namely, Sh.Dinesh Kumar and Smt.

Nirmal Suman, had been granted relaxation of 20 marks, which fact

had also been disclosed pursuant to the query raised by the respondent

under the Right to Information Act, 2005.

7. Since the respondent had scored only 36 marks out of 150, he

along with the other employees of the petitioner who had failed in the

Hindi subject filed a writ petition being W.P.(C) No.2795/2007 before

this Court seeking re-evaluation of their result in terms of Circular

No.11 dated 19th October, 2001. The respondent and other candidates

also sought that if they are found successful on re-evaluation then to

direct the petitioners to promote the respondent and the other

employees as Assistant Director (Ministerial) with consequential

benefits. The writ petition filed by the respondent and the other

persons was decided by order dated 22nd August, 2007 directing the

petitioner to get the Hindi subject paper re-evaluated/re-checked from

an independent Hindi Officer or any other competent person. Pursuant

to the direction by the court, the answer sheet of the respondent and

the other candidates who had filed the writ petition No.2795/2007 were

re-evaluated from the Professor of Hindi of Jamia Millia Islamia

University. The above noted writ petition later on was transferred to the

Central Administrative Tribunal where it was registered as TA

No.13/2008. After the answer books of the subject Hindi test was re-

evaluated, the petitioner filed a reply on 17th March, 2009 disclosing

that the answer books of the subject Hindi were re-evaluated and that

there was no significant change in the results of the candidates. The

writ petition was, therefore, disposed of by the Tribunal by order dated

13th January, 2010.

8. The respondent contended that before the Tribunal an incorrect

affidavit was filed by the petitioner, as on re-evaluation 41 marks were

awarded to him whereas initially 36 marks were awarded by the

evaluator who was not competent to evaluate which had necessitated

challenging the evaluation and demand for re-evaluation. The

respondent, therefore, claimed that he had to be declared successful as

with 41 marks on re-evaluation of the answer book in the subject Hindi

test and by adding the 20 marks of relaxation to which he was entitled

in his overall marks, he had fulfilled the criteria of scoring 40% in the

individual subject and 45% in aggregate, Therefore, he claimed that he

should be declared successful in the departmental examination held

during 2005, and therefore, he made a representation dated 2nd

December, 2009 seeking grant of promotion and seniority from the

relevant date.

9. The respondent made another representation dated 28th April,

2010 which was disposed of by order dated 21st May, 2010 on the

ground that the case of the respondent to declare him successful

cannot be considered, as under the Recruitment Rules there was no

provision for re-evaluation of the answer sheets. The order passed on

the representation of the respondent is as under:-

"Please refer to your application dated 28.04.2010 on the subject cited above. Your case regarding fixing of seniority was examined by the Competent Authority and the same

has not been acceded to, as the RRs does not have any provision for revaluation of answer sheet."

10. The respondent thereafter made a detailed representation dated

30th July, 2010 to the Vice Chairman, DDA and also to the Finance

member, DDA against the order dated 21st May, 2010 rejecting his

claim to declare him successful in the examination of 2005 and to grant

him seniority thereof. However, the representation was not replied to

entailing the filing of an original application before the Tribunal

contending, inter-alia, that the re-evaluation was done by the petitioner

from a Professor of Hindi of Jamia Millia Islamia University, and the re-

evaluation cannot be challenged on the ground that there are no rules

for re-evaluation. The respondent categorically asserted that even after

getting answer sheets re-evaluated from the Professor of Hindi of Jamia

Millia Islamia University, the petitioner did not disclose the correct facts

and rather filed an affidavit disclosing that on re-evaluation there had

not been any significant change in the result of the respondent. The

respondent also contended that he is entitled for relaxation of passing

marks up to 20 marks, which relaxation had also been given to other

candidates, which fact had not been denied by the petitioner. The

respondent categorically relied on the query raised under the Right to

Information Act, 2005 which was replied by the communication

reference No.F.7(97)/2010-PB-I/1513 dated 17th June, 2010 regarding

the re-evaluation of his answer sheets by a competent Professor. The

query no. 5 raised by the respondent, which was answered by the

petitioner is reproduced as under:-

5. Did Hon‟ble Court The suggestion of Hon‟ble High direct DDA to get re- Court, the answer sheet of evaluate the answer candidate who opted Hindi book of Hindi from a paper were got re-evaluated Competent from the Professor of Hindi in Professor? If yes, Jamia Milia Islamia University.

                 please        provide   The re-evaluated marks in your
                 marks secured by        case were 41. The details of
                 applicant   on    re-   earlier marks and re-evaluated
                 evaluation of answer    marks were submitted before
                 book of Hindi from      the Hon‟ble High Court.
                 competent professor.

11. The respondent also relied on a communication from the

Standing Counsel of the petitioner regarding the direction of the High

Court either to get the answer book re-evaluated by a competent Hindi

Professor or to scrap the entire process and to take another

examination and also to impose heavy costs on the petitioner/DDA for

acting in such an irresponsible manner. The communication dated 24th

August, 2007 from the Standing Counsel of the DDA which was

produced before the Tribunal is as under;-

" The above mentioned matter pertaining to the checking of Hindi Subject Papers was listed before the Hon‟ble Court on 22.08.2007. The Hon‟ble Court was of the view that admittedly the officer who has checked the papers was less qualified in the Hindi Subject when and as compared to those officers who give the promotion test. The Hon'ble Court suggested that either it can scrap the entire process and direct the respondent DDA to take another examination and imposed heavy cost on the respondent DDA for acting in an irresponsible manner or the respondent DDA may get the same

papers rejected from an independent Hindi Professor or any other person competent to check the Hindi Papers.

The Hon‟ble Court has granted two weeks time to the respondent DDA to decide and file an appropriate affidavit.

The present matter shall now come up on 11.09.2007. You are hereby requested to kindly consider the case in the light of the above mentioned suggestion."

12. The respondent also produced the details of 29 candidates in

whose case re-evaluation was done and the name of the respondent

appeared at item No.19 having Roll No.103 and Code No.L-17, and his

marks obtained out of 150 were shown as 36 and on re-evaluation as

41 marks.

13. The claim of the respondent was contested by the petitioner and a

counter affidavit of Mr.Vivin Ahuja, Director (Personnel) was filed

contending categorically that the relaxation of 20 marks is given only if

a candidate qualifies the examination and even after giving the 20

marks relaxation in the subject Hindi, the respondent would have

scored only 56 marks out of 150, and as such would not have scored

40% marks. In para 4.8 of the counter reply, it was admitted that the

Hindi Paper of the respondent and other candidates were re-evaluated.

Regarding the averments made before the Tribunal in the transfer

application that there had not been any significant change in the result,

it was contended that the entire facts ought to be read and there is no

provision in the scheme of the said examination for re-evaluation of any

paper. Para 4.8 of the counter reply before the Tribunal is as under:-

"4.8 That in reply to the contents of para No.4.8 of the O.A, it is not denied that the responding in TA No.13/2008 has made a statement "it is submitted that after the Hindi papers were revalued by the competent person there was no change in the result" but the contents of the affidavit filed by the respondent should be read in total. Accordingly it was also stated that "there is no provision in the criterion/scheme of said examinations for re-evaluation of any paper". The action of re-evaluation done by the respondent was in compliance of the orders of Hon‟ble High Court and there was no such order for change in criteria/change in the scheme of exam.

14. The petitioner, however, categorically accepted that re-evaluation

was done by the petitioner in compliance of the orders of the High Court

and that there was no order for change in criteria/change in the

scheme of examination.

15. The Tribunal after considering the respective pleas and

contentions of the parties, held that the plea of the petitioner that there

was no provision for re-evaluation cannot be accepted at this stage as

re-evaluation was already got done by the petitioner pursuant to order

passed by the High Court in the earlier writ petition. The petitioner had

not challenged that there was no provision for re-evaluation and so the

High Court could not have directed the respondent to get it re-evaluated

from a competent person. The observations and findings of the

Tribunal in para 6 and 7 in this regard are as under:-

6. We have heard both the counsel and perused the pleadings. Admittedly, reevaluation of answer sheets was ordered by the Hon‟ble High Court of Delhi and on reevaluation, applicant had scored 41 marks in the Hindi paper, therefore, question of reevaluation does not arise at this stage because it has already been reevaluated. It is admitted by the respondents that applicant is entitled to get 20 marks by way of relaxation which has been given to other reserved candidates also. If he is given 20 marks in Hindi and it is added to 41 marks which he has secured on reevaluation, naturally it would make it 61 marks out of 150 which would be 40% or may be more by a fraction. Since it is an admitted position that applicant would be entitled to 20 marks and it has been given to other reserved candidates also, we direct the respondents to grant him 20 marks by way of relaxed standard in Hindi paper and treat it as 61 marks out of 150 in Hindi paper.

7. In view of the above, order dated 21.5.2010 is quashed and set aside. Since 61 marks would be more than 40% and applicant had admittedly got 45% marks in aggregate, he would be entitled to be promoted as Assistant Director (Ministerial) from the same date when persons of the same selection were promoted. Ordered accordingly.

16. The order dated 18th March, 2011 passed in OA No.3555/2010 is

now challenged by the petitioner contending, inter-alia, that there was

no provision for re-evaluation of any paper in the scheme of the

examination, however, the answer book was re-evaluated to comply

with the direction of the High Court in this regard. Regarding

relaxation, it was contended that 20 marks relaxation is given only if a

candidate qualifies the examination after adding the 20 marks, but in

the case of the respondent even 20 marks relaxation would not qualify

him in the Hindi subject, therefore, he was not entitled for relaxation in

the Hindi Subject. The petitioner also relied on the order dated 13th

January, 2010 passed in T.A.No.13/2008 which was the writ petition

No.2795/2007 prior to it getting transferred to the Tribunal, wherein

the High Court had directed the re-evaluation of the answer book. The

order dated 13th January, 2010 passed in T.A.No.13/2008 is as under:-

3. The learned counsel for the Respondents at the outset stated that the OA had become infructuous because the Respondents on the suggestion made by the Honourable Delhi High Court for re-evaluation of answer- sheets had got the answer-sheets already re-evaluated. It is stated that the answer-sheets were first sent to the Delhi Administration for evaluation by their Hindi officer. However, the Delhi Administration expressed difficulty in evaluation of the answer-sheets and returned those sheets to Respondent DDA. Thereafter, the DDA sent these answer-sheets to Professor of Hindi in Jamia Milia Islamia University. The answer-sheets were re-evaluated by the aforesaid Professor and there was very little difference in marks given by the examiner appointed by the DDA initially and by the Professor who re-evaluated the answer-sheets. He would also contend that subsequently three of the Applicants have already been promoted to the post of Assistant Director (Administration). The learned counsel for the Respondents would further contend that now the Applicants are objecting to the re-evaluation by the Professor of Hindi on the ground that he was over-qualified, whereas earlier they were objecting to the evaluation by the Examiner appointed by the DDA on the ground that he was under-qualified.

4. The learned counsel for the Applicant, when confronted with this position, has not been able to give any argument as to how the grievance of the Applicants survives. The Applicants had only requested for re- evaluation, which was done by a competent person appointed by the Respondents.

5. In the aforesaid circumstances, in our opinion, the OA has become infructuous and is accordingly dismissed. No costs.

17. The learned counsel in the circumstances, has emphatically

submitted that since no specific direction was given in the transfer

application No.13/2008 to take into consideration the re-evaluated

marks, therefore, the same cannot be taken into consideration. It is also

contended that there is no provision for re-evaluation of the answer

book for the departmental examination under the Recruitment Rules.

18. Learned counsel for the respondent who appears on an advance

notice has categorically refuted the pleas and contentions and has

relied on the averments made before the Tribunal and the documents

produced therein. The learned counsel has contended that the

petitioner has misled the Court by contending that there had not been

any significant change in the result of the respondent after the answer

book was re-evaluated. Also, as to what was „insignificant difference‟ in

the re-evaluated marks of the answer book was not disclosed to the

Tribunal on 13th January, 2010 when T.A.No.13/2008 was decided.

According to the respondent, he got the information under the Right to

Information Act, 2005 only afterwards on 17th June, 2010 wherein it

was categorically accepted by the petitioner that on re-evaluation 41

marks were awarded to the respondent in place of 36 marks awarded by

incompetent evaluators. With 41 marks and relaxation of 20 marks

which the respondent was entitled to his marks become 61 marks out

of 150 in subject Hindi, and thus, fulfilled the criteria to qualify the

departmental examination of scoring 40% i.e. 60 marks out of 150. In

the circumstances, it is contended that the Tribunal‟s order allowing his

original application cannot be faulted, and rather action should be

taken against the petitioner for misleading the Tribunal and making

false averments in the Transfer Application 13 of 2008. The learned

counsel for the respondent has also relied on the communication of the

learned counsel for the petitioner dated 24th August, 2007 categorically

communicating that the High Court was of the view in W.P.(C)

No.2795/2007, which was subsequently transferred to the Tribunal

and was registered as T.A.No.13/2008, that the officer who checked the

paper of subject Hindi, compared to the officer who had given the

promotion test, was less qualified and in the circumstances, the High

Court was of the view to either scrap the entire process and direct the

petitioner to take another examination and impose heavy cost for acting

in such an irresponsible manner, or the petitioner may get the paper re-

evaluated from an independent Hindi Professor or any other competent

person to check the Hindi paper. In these circumstances, though there

was no provision for re-evaluation of the answer book, the answer book

of the respondent and other candidates were re-evaluated by a

Professor of Hindi of Jamia Millia Islamia University. The respondent

was awarded 41 marks, however, the correct facts were not disclosed

before the Tribunal and rather a vague statement was given that there

had not been any significant change in the marks on re-evaluation,

which led to the disposal of T.A.No.13/2008 on 13th January, 2010

without any specific direction regarding the respondent.

19. This Court has heard the learned counsel for the parties in detail

and has also perused the record produced before the Tribunal. The

Tribunal has noted all these facts categorically and the learned counsel

for the petitioner is unable to point out any illegality, or irregularity or

perversity which would entitle the petitioner to invoke the jurisdiction of

this Court to interfere with the order of the Tribunal. It is significant to

note that pursuant to the observations made by the High Court in CWP

No.2795/2007, titled as „Prakash Chand Pandey v. DDA‟ where the

High Court had observed either to scrap the entire process of the

examination, as the answer books of Hindi subject were evaluated from

a person who was less qualified than the person who appeared in the

departmental examination and to impose heavy cost on the petitioner or

to get the answer book re-evaluated from an independent or more

qualified competent person, the petitioner got the answer book of

subject Hindi of the departmental examination -2005 re-checked/re-

evaluated by a Professor of Hindi of Jamia Millia Islamia University.

This fact has also not been denied that on re-evaluation the respondent

was awarded 41 marks, which fact is apparent from the reply given by

the petitioner on 17th June, 2010 in reply to queries raised under the

Right to Information Act, 2005 posed by the respondent. In view of this,

the petitioner cannot be permitted to contend that there is no provision

for re-evaluation under the Recruitment Rules. If there is no provision

for re-evaluation under the Recruitment Rules then the petitioner

should not have got the answer book re-evaluated by a Professor of

Hindi of Jamia Millia Islamia University and should have instead

contested any direction or observation made by the Court to get the

answer book re-evaluated. At that time, in order to circumvent the

whole examination being scrapped and heavy costs being imposed, the

petitioner thought of getting the answer book re-evaluated despite there

being no RRs for re-evaluation and even did not disclose the impact of

the re-evaluation in case of the respondent, and instead submitted a

rather vague statement which appears to have mislead the Tribunal to

believe that there had not been any significant change in the marks

given by the examiner appointed by the petitioner initially and the

Professor who re-evaluated the answer book. In case of the respondent,

the difference of 5 marks coupled with the fact that the respondent is

entitled for relaxation of 20 marks, which fact had also not been denied

by the petitioner, the change in marks could not be termed as "very

little difference".

20. Taking the entirety of the facts and circumstances, this Court

does not find any sufficient ground to interfere with the order of the

Tribunal directing the petitioner to promote the respondent as Assistant

Director (M) from the same date when the persons who appeared with

him in the departmental examination of 2005 were promoted. The

petitioner ought to have disclosed the correct facts to the Tribunal in TA

No.13/2008 when the matter was disposed of by order dated 13th

January, 2010 which consequently had aggravated further litigation in

the matter. The petitioner did inform the respondent under the Right to

Information Act, 2005 that on re-evaluation he was awarded 41 marks

and with re-evaluated marks and 20 marks which are given to the

reserve category students, the respondent becomes successful in the

said examination.

21. In the circumstances, the writ petition is without any merit, and

it is, therefore, dismissed. All the applications are also disposed of.

Considering the facts and circumstances, the petitioner shall also be

liable to pay a cost of Rs.10,000/- to the respondent. Cost be paid

within four weeks.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

OCTOBER 10, 2011.

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