K.L. NANDAKUMARAN NAIRversusK.I. PHILIP AND ORS.

A                           K.L. NANDAKUMARAN NAIR
                                           v.
                                 K.I. PHILIP AND ORS.

                               SEPTEMBER 10, 2001

B             [S. RAJENDRA BABU AND DORAISWAMY RAJU, JJ.]

          Service matter:

           Selection of electricians (HS) after conducting trade test-Appellant
    secures qual{fying minimum marks-Promoted to electrician (HS)-0.A. filed
c   challenging the selection-Rejected-Respondents not preferred appeal or review
    petition against the order but preferred another 0.A. challenging the selection-
    Division Bench of the Central Administrative Tribunal directed the Chief
    Engineer to dispose of the representations by the responff,ents-Against the
    order of Chief Engineer rejecting the representation another 0.A. filed-Held,
    Tabulation sheet:,/mark sheets destroyed and not made available to the Tribunal-
D   Directed fresh selection-Review rejected-On appeal held, Tribunal erred by
    ignoring the affidavit by Selection Committee that note sheet destroyed only
    after entries in tabulation sheet-Also ignored pleading-Available records
    sufficient to conclude the matter-Ought to have exercised great care.

          Respondents challenged the selection of appellant as Electrician (HS)
E   before the Central Administrative Tribunal and the Tribunal dismissed the
    O.A. on the ground that they had not obtahted qualifying minimum marks.
          The respondents did not prefer appeal or review petition against the
    order but filed another O.A. which was disposed of with the direction to
    the Chief Engineer to dispose of the representation of the respondents. The
F   representation was rejected by the Chief Engineer upon which another
    O.A. was filed in which the issue was that trade test had not been conducted
    for the respondentS. The Tribunal gave directions for fresh selection since
    the tabulation sheets/mark sheets had been destroyed and were not made
    available to the Tribunal. However, no reference was made to its earlier
    order. The Review Petition filed against the said order was dismissed.
G   Hence these appeals.
          Allowing the appeals, the Court
          HELD : The Tribunal ought to have considered the facts recorded in
    the course of judgment by another Bench of the Tribunal in which the
H   records of selection and the mark sheets had been examined by the Tribunal.
                                         14
      K.L. NANDAKUMARAN NAIR v. K.l. PHILIP [RAJENDRA BABU, J.J              15
Further, the affidavit of Selection Committee was also available on record         A
declaring that note sheets were destroyed soon after entries was made in
the minutes and tabulation sheets, but the document does not reveal that
the tabulation sheets or the mark sheets were destroyed and the available
records were sufficient to conclude the matter. The Tribunal ought to have
exercised great care in these matters where interests of several employees
                                                                                   B
were involved and should have allowed the review when it was pointed out
in the counter affidavit that mark sheets and tabulation sheets were
available. However, the Tribunal totally ignored the pleadings and the
material available. [16·G·H; 17-A-D]

       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5340 of 1997.                C

      From the Judgment and Order dated 8.8.96 of the Central Administration
Tribunal, Emakulam at Kerala in R.A. No. 17/95 in O.A. No. 418 of 1994.

                                       WITH
      C.A. No. 5341/1997.                                                          D

       K.Sukumaran, Ms. Baby Krishnan, Ms. Karthika S. and N.R. Shonker
for the Appellant.

      M.N. Krishnamani, Ms. Kiran Bhardwaj, K. Misra, M.T. George and
T.G. Narayanan Nair for the Respondents.                                           E
      The Judgment of the Court was delivered by

       RAJENDRA BABU, J. These appeals arise out of certain proceedings
in 0.A. No. 418/94 filed before the Central Administrative Tribunal, Ernakulam
Bench (hereinafter referred to as 'the Tribunal'). Respondent Nos. 1 to 4, who     F
were working as Electricians (HS), Grade II, by O.A. No. 771/93 challenged
the selection of the appellants as Electricians (HS). A Division Bench of the
Tribunal after going through the record of the selection and the mark sheets
found that out of the total marks of 100, 35 marks have been allotted to written
test, 40 marks for practical test and 25 marks for viva voce. All the applicants
                                                                                   G
had not obtained the qualifying minimum marks of 50 per cent prescribed for
general candidates and 40 per cent marks for SC/ST candidates. On the basis
of the marks obtained by them, the appellants have been promoted to the
higher grade, which is a selection grade, and dismissed the application of
respondent Nos. 1 to 4. Subsequently another application in 0.A. No.
1308/93 was filed by respondent Nos. I to 4 before the Tribunal challenging        H
    16                   SUPREME COURT REPORTS                [2001] SUPP. 3 S.C.R.
A   this very selection which had been upheld in O.A.No. 771193 without seeking
    review of the said order or preferring appeal to this Court in the ordinary
    course. However, the new application in O.A. No. 1308/93 came to be disposed
    of with a· direction to dispose of the representation to be made to the Chief
    Engineer. The Chief Engineer rejected the said representation upon which O.A.
    No. 418/94 was filed. The Tribunal on the third occasion examined the matter
B   at the instance of the same set of applicants and adverted to the direction in
    0.A. No. 1308/93 however without any reference to the disposal of the matter
    finally in O.A. No. 771193. It is rather strange that that course was adopted by
    the Tribunal. Further the dispute before the Tribunal was that the trade test had
    not been conducted in respect of the applicants. The Tribunal proceeded to state
c   that the tabulation sheets or the mark sheets have been destroyed and were not
    made.available to the Tribunal and on that basis directed for a fresh selection.
    Thereafter review application filed against the same having failed, these appeals
    are filed by special leave.

            That the records of the selection and the mark sheets have been examined
D   by the Tribunal while disposing of O.A, No. 771/93 is a fact recorded in course
    of its judgment by another bench of the Tribunal. The Tribunal when examining
    the matter again ought to have given weight to this aspect of the matter. Further
    in the affidavit filed by one S.K. Shangari, who was one of the members of the
    selection committee along with Mr. A.K. Ayyappan and A.W. Khedkar stated
    in the affidavit filed in O.A. No. 1308/93 that the applicants before the Tribunal
E   were given the trade test and the duration for the practical test of the candidates
    depended upon their performance and the practical test given to each individual
    varied and depended upon his knowledge as Electrician Grade HS II. Notes
    were made by the Board members and marks were awarded separately in note
    sheets kept by them and that such note sheets were destroyed soon after the
F   entries were made in the minutes and tabulation sheet. This document does not
    reveal that the tabulation sheets or the mark sheets have been destroyed. The
    Tribunal did not also attach any significance to the submission of the learned
    counsel for the respondent that records were available and the Tribunal, on the
    other hand, ought to have seen what those records were to find out whether
    those records were sufficient to conclude the matter one way or the other and
G   give a finding on the same. The Tribunal instead of adopting this course merely
    brushed aside that submission characterising it as 'faint attempt'. In matters
    where the interests of several employees are involved selection process has
    taken place, the Tribunal ought to have exercised great care in deciding such
    matters, particularly in examining the records maintained by the selection
H   committee. The fact remained that the records have been made available to the
         K.L. NANDAKUMARAN NAIR v. K.I. PHILIP [RAJENDRA BABU, J.]                17

    Tribunal on the earlier occasion and that thou.gh subsequently it was brought        A
    to the notice of the Tribunal that tabulation sheets or the mark sheets were
    available and only the notes were destroyed the Tribunal without giving any
    weight to the same could not have disposed of the matter in the manner it did.
}
           At any rate, the Tribunal should have allowed the review when it was
    pointed out that mark sheets and tabulation sheets were available and a statement    B
    to that effect had already been made in the counter affidavit. Genesis of the
    problem appears to be the order made by the Tribunal while disposing of O.A.
    No. 1308/93. In the affidavit of S.K. Shangari to which 'we have adverted to
    earlier, it was stated that notes prepared at the time of practical test were
    destroyed soon after the entries in the minutes of the tabulation sheets were        c
    made, but the Tribunal, however, felt that the entire records have been destroyed
    while it is not so. What was destroyed was only the notes and not the entries
    made in the minutes and tabulation sheet, which would indicate the necessary
    marks obtained by each of the candidates. When these facts were brought to
    the notice of the Tribunal and which facts have been averred in the counter
    affidavit, there was no fresh attempt on their part to produce any new evidence      D
    which was not referred earlier and it is a case where the Tribunal fotally ignored
    the pleadings and shut its eyes to the material available. In the circumstances,
    review should have been allowed.

           In that view of the matter we s.et aside the Order of the. Tribunal, both
                                                                                         E
    in the review application and the original application, setting aside the earlier
    order made by the Tribunal in O.A. No. 418/94. The order made in O.A. No.
    771/93 is restored. The appeals are allowed accordingly. No costs.

    S.K.S.                                                         Appeals allowed.