Shekhar Agarwal, Member (A)
1. These are all inter-connected cases, hence these are being disposed of by this common order.
2.  For the sake of convenience, facts of OA-1410/2012 are being discussed below:-
2.1Â The applicants has sought the following relief:-
â(i)Â quash and set aside the impugned memo dated the memo dated 13.03.2012 (Annexure-A-1) and 25.04.2012 (Annexure-A-1A) with all consequential benefits including reinstatement, salary seniority etc.
(ii) May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice.â
2.2Â Brief facts of the case are that the respondents issued an advertisement on 20.08.2010 for conducting recruitment for the post of Postal Assistants. The applicant applied for the same and went through the selection process. She was declared selected on 19.04.2011 and was asked to join In House training which was scheduled to commence w.e.f. 25.04.2011. The applicant completed the said training and was thereafter sent for PA Induction. On completion of the said training, she was deputed to Post Office at IPHO, Delhi on 26.11.2011. On 13.03.2012 she received the impugned termination order, which reads as under:-
âDepartment Of Posts
Office of the Senior Superintendent of Post Offices, New Delhi Central Division,
New Delhi-110001
Notice of termination of service issued under the proviso to sub-rule(1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965
Memo No.:SSP/Con/DR-PA/Exam/2010 Dated at New Delhi-110001 the 13.03.2012
In pursuance of sub-rule(I) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 I BINTI CHOUDHURY Senior Supdt. Of Post Offices, New Delhi Central Division, New Delhi-110001 hereby give notice to Ms Shruti PA, IPHO, New Delhi-110002 that her services shall stand terminated with effect from the date of expiry of a period of one month from the date on which this notice is served on or, as the case may be, tendered to her..â
On 19.03.2012 the applicant submitted a representation against the said notice. She also filed OA-1011/2012, which was disposed by the Tribunal with the directions to the respondents to decide the representation of the applicant and maintain status quo in the meantime and one week thereafter. The respondents rejected the representation of the applicant on 25.04.2012. Aggrieved by the same, the applicant has filed this O.A. before us.
2.3Â Learned counsel for the applicant has contended that the applicant had been selected on the basis of a competitive exam and had been performing her duties satisfactorily. She had under-gone the prescribed training programme successfully and her service during the aforesaid period of working as Postal Assistant was also satisfactory with no complaints from any source. He has further stated that the applicant had not at any point of time misrepresented the facts with a view to gain employment, yet the services of the applicant have been terminated under sub-rule(I) of Rule-5 of CCS (Temporary Service) Rules, 1965. According to learned counsel for the applicant this Rule could have been used only if the work and conduct of the applicant had not been satisfactory or if the applicant had remained absent without intimation for an indefinite period. Since such was not the case, termination of services under this provision was bad in law.
3. The respondents in their reply have not disputed the fact of applicant successfully passing the examination and being appointed on the post of Postal Assistant. They have also not disputed that she had satisfactorily under gone the training and that after completion of training her services as Postal Assistant in IPHO were also satisfactory. According to them one Sh. Tarekeswar Prasad, who was also a candidate in the same examination had sought information under RTI Act relating to the above recruitment process. On the basis of information received he made representations dated 19.09.2011 and 20.10.2011 to Chief Post Master General, Delhi Circle alleging some irregularities in the evaluation of answer sheets of aptitude test of some selected candidates and requested for appropriate action in the matter. In his representation, he claimed that two candidates who were selected were awarded disproportionately higher marks than what they should have got. Since this was a serious allegation, the matter was enquired into and it was found that the allegations were correct. In further enquiry, it was established that similar mistakes and wrong doings had happened in other cases as well. Consequently, the competent authority ordered re-checking of the answer sheets of aptitude test of all the candidates. This was got done with a view to correct and rectify mistake in the evaluation. Based on the re-evaluation a fresh merit list was prepared. The name of the applicant did not figure in the revised merit list, hence a notice of termination under sub-rule(I) of Rule-5 of CCS (Temporary Service) Rules, 1965 was issued to the applicant.
4. We have heard both sides and perused the material placed on record. We also directed the respondents counsel to furnish the following information regarding the examination in question:-
â(i) Total number of candidates who appeared in the said examination.
(ii) Total number of candidates selected.
(iii) Names of candidates in the merit list and revised merit list along with marks in order of merit.
Total number of candidates terminated due to revision in the merit list along with their names.
Total number of new candidates appointed along with their names.
Total number of candidates with names and merit list number in between those selected and those reverted.â
The same has been provided to us and has been taken on record.
5. Learned counsel for the applicant argued that the use of sub-rule (I) of Rule-5 of CCS (Temporary Service) Rules, 1965 for terminating the services of the applicant was bad in law. According to him, the applicant had completed her probation satisfactorily and had not been absent without intimation. He said that in terms of law laid down by the Honble Supreme Court in the case of Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha, 1980(2) SCC 590 the Court/Tribunals are entitled to find out the true nature of termination, namely, whether it is punitive or not. They have also placed reliance on the judgment of Honble Supreme Court in the case of Chandra Prakash Shai Vs. State of UP and Ors., 2000(5) SCC 152.
6. In this connection, the respondents have stated that there were no complaints against the applicant. They have also not denied that her probation had been completed satisfactorily. However, according to them the termination was necessitated by the fact that her name did not figure in the revised merit list. Thus, according to them the termination was not punitive in nature but was done on account of administrative reasons. In this regard, they have placed reliance on the judgment of Honble High Court of Delhi in Writ Petition (C) No. 1007/2012 (Bhanwar Lal Vs. UOI and Anr.) decided on 21.02.2012 in which it is laid down as follows:-
â18. In the facts and circumstances, it is clear that the impugned termination order is a case of discharge simplicitor and that it was due to administrative reasons that the respondents had deemed it necessary to terminate the services of all the candidates who had appeared for the said recruitment, as malpractices and irregularities on the part of the Recruitment Board had been detected by the concerned authorities. The nature of the enquiry conducted prior to the termination order also was only preliminary in nature and not a full scale formal enquiry against the petitioner so as to lead to the inference that the object of the enquiry was to determine the guilt of the petitioner. No specific allegations were made against the petitioner nor any specific lapses or connivances had been attributed to the petitioner. Therefore, the order of termination cannot be held to be punitive in nature and consequently there was no requirement to conduct an inquiry before terminating the services of the petitioner. In the facts and circumstances, it also cannot be inferred that the foundation of termination of the services of the petitioner was the preliminary enquiry conducted by the respondents in the process of selection.
19. For the foregoing reasons and in the totality of facts and circumstances, there are no grounds for this Court to exercise its jurisdiction under Article 226 of the Constitution of India and to interfere with the termination of the petitioner. The writ petition is without any merit and it is, therefore, dismissed.â
Their contention was that the termination notice was a discharge simplicitor.
7. On the basis of above, we are of the opinion that there is no merit in the contention of the applicant that termination notice issued under sub-rule(I) of Rule-5 of CCS (Temporary Service) Rules, 1965 is bad in law since it has not been issued on the grounds of misconduct or misrepresentation of facts by the applicant. It has been issued purely on administrative grounds and not as punishment.
8. Learned counsel for the applicant argued that the respondents had favoured certain candidates who were taken back in service after termination. They quoted the case of one Ms. Alisha Pahuja. The respondents, however, denied allegations of any mala fide in their action. According to them in the revised merit list Ms. Alisha Pahuja was first in the waiting list of OC category. Since one selected candidate, namely, Savita Chopra did not join service, her candidature was cancelled and her post was offered to Ms. Alisha Pahuja. After the clarification given by the Respondents, we do not find any merit in this allegation.
9. The other ground taken by the applicant is that the respondents have erred in ordering re-evaluation of the answer sheets of aptitude test of all the candidates. According to the learned counsel of the applicant, Appendix-37 of Postal Manual Vol.4 contains rules pertaining to departmental examinations. Rule-15 of the same lays down as under:-
âRevaluation of answer books Revaluation of answer scripts is not permissible in any case or under any circumstances.â
In this connection, the applicant has relied on the judgment of Honble Supreme Court in the case of H.P. Public Service Commission Vs. Mukesh Thakur and Anr., Civil Appeal No.(s) 907 of 2006 dated 25.05.2010 in which after considering various pronouncements in different cases it has been ruled as follows:-
â27. 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.â
Learned counsel argued that the Honble Supreme Court had laid down that even the Courts should not direct re-evaluation when there is no statute or statutory Rules/Regulation but in the instant case the re-evaluation of answer sheets was ordered by the respondents themselves. According to the learned counsel for the applicant this was contrary to their own instructions which they had issued on the basis of the aforesaid judgment of Honble Supreme Court. In this connection, the applicant produced a copy of the Department of Posts letter No. A-34018/10/2010-DE dated 02.08.2010 which reads as follows:-
Sub: Revaluation of answer papers- Judgement pronounced
by Honble Supreme Court in the civil Appeal No.(s) 897 of 2006 and 907 of 2006 between Himachal Pradesh Public Service Commission (Appellant) and Mukesh Thakur and Anr (Respondents).
Sir/Madam,
I am directed to enclose copy of the subject cited Judgement of Hon. Supreme Court of India.
2. Consequent on introduction of RTI Act 2005 and the directions of the CIC to supply photocopies of answer papers to the candidates, filing of Court cases in the Tribunals has been increased enormously. Various CAT Benches are also directing the Department to get the answer papers revaluated. On filing writ petitions in the High Courts against the orders of the CAT Benches, the High Courts are also disposing off the cases saying that they dont want to interfere in the matter. It is stated that Rule 15 Appendix.37 of Postal Manual Volume-IV clearly stipulates âRevaluation of answer script is not permissible in any case or under any circumstancesâ. Thus it is not permissible to consider requests of candidates for revaluation after declaration of results as it will not only cause great inconvenience to the examination process and also cause hindrance to the administration in the absence of vacancies of particular category viz; OC, SC, ST etc under departmental quota but also be against the spirit of ibid Rule.
3. It may be seen that representations requesting for revaluation of answer papers are being received in this office specifically pointing out the following grievances:
(i) Particular answer(s) were not evaluated.
(ii) Excess attempted answer(s) were not evaluated.
For the same answer (s), the examiner awarded marks to one candidate and to another candidate no marks were assigned or the answer struck off as wrong.
(iv) All the answers were evaluated but justified marks were not awarded by the examiner.
4. The issues indicated at (i) to (iii) above are justified and need to be examined by the competent authority to find out the facts and if the claim of the candidate appears to be genuine, revaluation may be got done by an independent examiner in such cases and further necessary action may be taken. In so far as the issue indicated at (iv) above, there is no need to consider such requests and merits rejection at the initial stage itself.
5. In the similar situation in the Civil Appeal No.(s) 897 of 2006 and 907 of 2006 between Himachal Pradesh Public Service Commission (Appellant) and Mukesh Thakur and Anr (Respondents), hon. Supreme Court of India has upheld the plea of the Himachal Pradesh Public Service Commission rejecting the request of a candidate for revaluation. In the light of the judgment of Hon. Supreme Court, it is requested to review all pending court cases filed in various CAT Benches/High Courts by the candidates of various departmental examinations seeking directions for revaluation and declaring them as successful on the pretext that the evaluation was not done properly by the examiners and file suitable interim replies in the courts producing the copy of the Supreme Court judgement seeking dismissal of the cases. All pending representations received from the applicants seeking revaluation of answer papers covered under item (iv) of para 3 above may also be disposed off at the Divisional/Regional/Circle level as the case may be without forwarding the same to this office.
This issues with the approval of Member (P).
7. The receipt of the letter may please be acknowledged.
10. The respondents, on the other hand, replied by saying that re-evaluation had been ordered with a view to correct and rectify mistakes and wrong doings in the evaluation so that the candidates are selected purely on merit. While we do not doubt the intentions of the respondents in ordering such re-evaluation, in our opinion, this act of the respondents was clearly contrary to the rules and the law laid down by the Honble Supreme Court. Their departmental instructions, the Postal manual and the ruling of Honble Supreme Court clearly prohibited that. Hence revaluation cannot be sustained.
11. It has not been denied by the respondents that the applicants performance during her training period and during her posting as Postal Assistant had been satisfactory. There was no allegation of misconduct against her. Nor it is the case of the respondents that the applicant had got employment by misrepresenting facts. Applicant has also not been alleged to be responsible for the irregularities that have taken place in the exam. Hence, it can be reasonably presumed that had her services not been terminated due to re-evaluation and preparation of revised merit list, she would have continued in service. Now that we have held the re-evaluation ordered by the respondents to be against the rules and therefore unsustainable, the termination order issued on the basis of this re-evaluation also cannot be sustained. Hence, we quash the impugned order of termination dated 13.03.2012. We direct that the applicant be taken back in service. She will also be entitled to restoration of her seniority and pay. However, considering the facts and circumstances of the case, we direct that no arrears will be payable to her for the period for which she has not actually worked.
12. Since we have quashed the re-evaluation, strictly speaking we should also quash the revised merit list prepared on the basis of re-evaluation of answer sheets. However, if we do so we would be depriving many meritorious candidates who have made it to the merit list as a result of revaluation, from gaining employment for no fault of theirs. According to the information supplied by the respondents the number of such candidates is about 14. Further, there are 7 candidates who are in between those selected on the basis of revised merit list and those reverted. Since we are ordering that reverted candidates be taken back in service, the 7 candidates who are above the reverted candidates in merit list also deserve to be provided employment. Considering these facts and circumstances of the case, we are restraining ourselves from quashing the revised merit list and giving liberty to the respondents to appoint the 14 candidates who have made it to the revised list and the 7 candidates who are in between candidates in the merit list and those reverted, if they so desire.
OA-4215/2011
13. In this case, the applicant has sought the following relief:-
â(i) Quash and set aside the merit list dated 18.11.2010 published for selection for the post of Postal Assistant/Sorting Assistant, Post Office/Railway Mail Services, Delhi Postal Circle.
(ii) Direct Respondent to revise the order/merit list for selection of candidates for the post of Postal Assistant/Sorting Assistant, Post Office/Railway Mail Services, Delhi Postal Circle.
(iii) Direct Respondents to appoint Applicant in the post of Postal Assistant/sorting Assistant, Post Office/Railway Mail Services, Delhi Postal Circle.
(iv) Direct enquiry into the manner of selection of candidates illegally selected vide the list published on 18.11.2010.
(v) Pass such other and further orders as this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case.â
14. The prayer of the applicant in this case for appointment, as a Postal Assistant, cannot be acceded to since his name did not figure either in the original merit list or in the revised merit list. Regarding his prayer for quashing of the merit list dated 18.11.2010, preparing a revised merit list and ordering an enquiry into the manner of selection of candidates, we have considered this matter and are of the opinion that while there was irregularity in the marks awarded to a few candidates, there is no allegation of any manipulation or misrepresentation by any of the selected candidates. Nor is the number of candidates in whose case discrepancy came to notice very large. According to the information provided by the respondents, the total number of candidates who had appeared in the said examination was 1425. Out of these, 320 were declared successful in the original merit list. Thereafter, as a consequence of re-evaluation, services of 14 candidates were terminated. Thus, 306 candidates selected earlier were not affected by re-evaluation. If the entire merit list is quashed, it would be blatantly unfair to these candidates. Thus, we are not inclined to grant this prayer of the applicant.
15. The respondents have stated that the answer sheets of aptitude test in which the irregularities were noticed were checked by one Sh. Rahul Kaushik, IPS Class-A officer and who has already been placed under suspension w.e.f. 27.04.2012 and disciplinary proceedings are going on against him. Since the respondents have themselves taken action in the matter we do not see necessity of ordering any further enquiry. Thus, none of the prayers in this O.A. can be accepted. Accordingly, this O.A. is dismissed.
16. On the basis of above, we allow OA-1410/2012. The same benefit will be given to applicants in the above mentioned OAs except OA-4215/2011, which is dismissed. This process will be completed within a period of two months from the date of receipt of a certified copy of this order. There shall be no order as to costs.
17.    A copy of this order be placed in each case file.