SHAILESH KUMAR S/O.SURENDRA SINGH Versus SECRETARY MINISTRY COMMUNICATION OF INDIA AND OTHERS ====================================== Appearance :
MR PH PATHAK for Petitioner.
None for Respondents.
====================================== CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE G.B.SHAH Date : 04/09/2012 ORAL ORDER (Per : HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. Inspite of repeated requests, learned counsel, Mr.Pathak, has insisted on reading one after the other papers from the petition and tried to thrust some more papers which are not on record to repeatedly make some submissions on facts. He was repeatedly requested to make any legal point to challenge the impugned order of the tribunal but he has been adamant in making submissions as to how the petitioner was not allowed full marks for the answers which were, according to him, correct, in the departmental examination faced by the petitioner. Unfortunately, public time of the Court for more than forty minutes was wasted and not one legal submission was made except that the facts which he wanted to canvass on the basis of papers in his hands and the papers which were placed on record would establish violation of Article 14 of the Constitution.
2. The petition is filed under Articles 14, 226 and 227 of the Constitution to challenge order dated 3.8.2011 of the Central SCA/11002/2012 2/5 ORDER Administrative Tribunal, Ahmedabad, whereby the Original Application of the petitioner has been dismissed on the simple proposition of law laid down by the Supreme Court and on the basis that the rules and regulations of the examination did not permit revaluation or re evaluation of the papers, even as due care had been taken by the respondents in retotaling and verification of marks by a special committee constituted for the purpose. Thus, as even no prima facie case was made out warranting judicial interference necessitating issuance of notice, the application of the petitioner was dismissed under the provisions of Section 19 (3) of the Administrative Tribunals Act, 1985. Under the circumstances, learned counsel was repeatedly requested to show either any jurisdictional error, illegality or perversity in the impugned order for the purpose of exercising supervisory jurisdiction of this Court, but he has adamantly refused to do that and dilated on irrelevant facts.
3. The simple facts of the case of the petitioner were that after being appointed in the clerical cadre under the respondent, the petitioner was redesignated as Telecome Office AssistantG and had applied for appearing in departmental examination in January 2010. As per his own assessment, he ought to have been declared successful, but having not been so declared he had applied for supply of mark sheets and applied for rechecking of the answer sheets. He obtained copies of the answer sheets of other candidates and compared them with his answer sheets to agitate that he was denied marks for certain answers and he was given less marks in comparison to other candidates, even though his answers were correct, according to him. Learned counsel repeatedly referred to page 11 of the annexures to submit that it was a complete and correct balance sheet which was written by the petitioner as answer no.1, but no mark at all was awarded for that answer. He relied upon page 12 and 13 SCA/11002/2012 3/5 ORDER of the petition to submit that only 25 marks out of 40 were awarded for that answer while other candidate whose answer is at page 39 was given 30 marks for the same answer. He proposed to go on with this exercise of reexamination of answers of the petitioner before this Court at the cost of public time of the Court with such perseverance that he had to be requested to stop waste of time of the Court.
3.1 It was also submitted for the petitioner that it was only because the tribunal had found some substance in allegations made by the petitioner that in the first round of litigation, being Original Application No.6 of 2011, the tribunal had by order dated 12.1.2011, directed the respondent, even without issuing notice to them, to examine certain aspects and pass appropriate reasoned and speaking order within three months. The respondents had, after undertaking the exercise as ordered by an ex parte order, made an order dated 5th April 2011, stating that review of evaluation made by the examiner cannot be entertained on personal preferences of the candidate and there was no provision under the relevant Rules and guidelines governing conduct of the departmental examination for revaluation of answer sheets. Instead as per Rule 15 (PartI) of Appendix 37 of the P&T Manual VolumeIV, revaluation of answer sheets is not permissible in any case or under any circumstances. The respondent also relied upon judgment of Allahabad High Court in Kumari Sneha Bhaisora v. State of Uttaranchal [2003 (53) ALR 96]. It was further stated that the examination in question was held in January 2010 in 26 Circles of BSNL including Gujarat Circle of which the result was declared in a decentralized manner. Gujarat Circle declared the result on 31st March 2010 and 129 candidates were declared successful in the examination. After completion of phase1 training all the successful candidates had been promoted and as such the examination had already attained finality.
SCA/11002/2012 4/5 ORDER
4. With the above backdrop of facts, the petitioner approached Central Administrative Tribunal again and by the impugned order the application was summarily rejected in view of speaking order dated 5 th April 2011, as aforesaid, having already been made and the express Rule which prohibited further scrutiny or evaluation or revaluation of the answer sheets. The tribunal relied upon decision of the Apex Court in H.P.Public Service Commission v. Mukesh Thakore and Another for the proposition that in absence of any provision under the statute or statutory rules/regulations, the Court should not direct revaluation and whatever action was required and permissible under the Rules was already taken by the respondent.
5. Inspite of the factual and legal position being what is briefly described hereinabove, learned counsel, Mr.Pathak has, at the cost of considerable public time of the Court, insisted on reading and evaluation of each answer in the answer sheet of the petitioner. After a great effort he succeeded in pointing out that the balance sheet written by the petitioner, of which a copy is at page 11, was ignored and no mark was awarded for that answer no.1. From the bare perusal of that socalled balance sheet, it was apparent that by no stretch of imagination it even appeared like a balance sheet and it read like some calculation on the back of an envelop. Therefore, it was proved that the petitioner was pursuing the matter in third round of litigation under serious misconception about quality of his answers and, besides jurisdictional constraints of the judicial forum, there was no factual basis for carrying on the litigation in the manner it was done.
6. It is indeed unfortunate that an advocate of the High Court of the standing of Mr.Pathak would use his experience and office for the purpose of waste of public time of the Court, even after being fully SCA/11002/2012 5/5 ORDER conscious of the fact that many more important and urgent matters have to be heard and decided by the Court within the limited time available therefor. Therefore, it has become a painful duty of the Court to dismiss the petition and discourage such litigation and style of presentation by imposing cost of Rs.10,000/ which shall be paid by the petitioner to the Legal Services Authority within a period of one month.
(D.H.Waghela, J.) (G.B.Shah, J.) *malek