Central Administrative Tribunal - Allahabad
Uma Kant Sharma vs Union Of India on 6 August, 2025
RESERVED ON 04.08.2025.
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH
ALLAHABAD
This the 06th day of August, 2025.
ORIGINAL APPLICATION NO. 1202 of 2011
HON'BLE MR JUSTICE OM PRAKASH -VII, MEMBER (J)
HON'BLE MR. MOHAN PYARE, MEMBER (A)
Umakant Sharma S/o Hira Lal Sharma, Resident of Bhagwatipur, Post
Andhiyari, District Allahabad Pin Code 229413
..........Applicant
VERSUS
1. Union of India through its Secretary Department of Ministry
Railways, New Delhi.
2. Railway Recruitment Board, Allahabad through its Chairman.
3. Member Secretary, Railway Recruitment Board, Allahabad.
.................Respondents
Advocate for the Applicant: Shri A.K Dave/Shri Vivek Mishra
Advocate for the Respondents: Shri Ajay Kumar Rai
ORDER
BY HON'BLE MR JUSTICE OM PRAKASH -VII, MEMBER (J) The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:-
"(i) To quash and set aside the impugned order of cancelation of candidature and also debarring from all RRB examination lifetime dated 11.4.2011 (Annexure No. A-1A) passed by the respondent No.3 and further direction to the respondent may also be issued for issuing the posting letter in favour of the applicant.
(ii) issue any other order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the instant case in favour of the applicant.
(iii) Award the cost of the petition to the applicant".
MANISH KUMAR SRIVASTAVA 2
2. The brief facts of the case are that the applicant applied for the post of Assistant Loco Pilot Cat-33 in view of the advertisement made by the respondents in Employment Notice No. 2 of 2008 dated 03.08.2013. Initially, the date was fixed for preliminary examination which was subsequently cancelled and thereafter preliminary examination was conducted on 15.2.2009 in which applicant appeared in the preliminary examination conducted on 15.02.2009. Having successfully qualified the preliminary examination, the applicant was called for psychological test. Applicants appeared in aforesaid examination which was scheduled to be held on 20.07.2010 and he has qualified. He was also called for document verification on 13.12.2010. However, to the utter surprise of the applicant, respondent no 3 issued show cause notice / memorandum dated 07.02.2011 to the applicant stating that the applicant's thumb impression in biometric attendance of the written test and PET examination did not match. The applicant submitted his reply to the aforesaid memorandum. Subsequently, the applicant sought information under RTI regarding his marks, cut off merit and the reason for his non-selection in compliance to which the respondents provided the copy of the impugned order dated 11.4.2011 whereby candidature of the applicant has been cancelled and applicant has also debarred him from all RRC / RRB examinations for appointment in railways for lifetime. Aggrieved against the aforesaid order, applicant filed instant original application.
3. Per contra, learned counsel for the respondents has filed counter affidavit wherein it has been stated that the applicant had participated in the recruitment process conducted under Employment Notice No. 02/2008. However, his candidature was rejected by the respondents vide order dated 11.4.2011 on the ground of mismatch of thumb impression, which was found during the verification process between the written examination and the Physical Efficiency Test (PET). A show cause notice was issued to the applicant seeking his explanation, but the same was found unsatisfactory. Based on the expert report of the Government Examiner of Questioned Documents (GEQD), the case was treated as one of impersonation. Consequently, his candidature was cancelled in MANISH KUMAR SRIVASTAVA 3 accordance with the said Employment Notice. The respondents, therefore, contend that the rejection of the applicant's candidature is in accordance with rules and the OA deserves to be dismissed.
4. Rejoinder affidavit has also been filed by the applicant wherein the applicant has reiterated the facts as stated in the OA and denied the contents of the counter affidavit.
5. We have heard Shri A.K. Dave, learned counsel for the applicant and Shri Ajay Kumar Rai, learned counsel for the respondents and perused the record.
6. Learned counsel for the applicant argued that cancellation of applicant's candidature and the lifetime debarment from all RRC/RRB examinations are arbitrary, illegal, and violative of principles of natural justice. He further argued that despite having successfully qualified all stages of the recruitment process including the preliminary examination, psychological test, and document verification, the candidature of the applicant was cancelled on the ground of alleged mismatch of thumb impression without affording him a fair opportunity to be heard. Learned counsel for the applicant further argued that applicant had duly appeared in all examinations himself and denies any act of impersonation. He further argues that the respondents failed to conduct any independent inquiry or provide a reasoned order substantiating the basis of cancellation and debarment. Learned counsel for the applicant argued that the respondents took thumb impression, biometric attendance, signature and also a sentence written by candidate in his hand writing in each phase of the examination and the identity of the applicant can be easily checked by all these methods however, the impugned order has been passed only on the pretext of mismatch of thumb impression in biometric attendance in written and PET examination. It was also argued that the photograph of the applicant was also available to the authority which was supervising the exam physically and the photograph of the applicant was also on the admit card. The respondents could have identified the applicant from the photograph on his admit card from their own records and then only permitted the applicant to appear in both the MANISH KUMAR SRIVASTAVA 4 examinations. And therefore, at a belated stage, they cannot allege that there was an impersonator who had appeared in the exam in place of the applicant. Therefore, the impugned order is liable to be quashed, and the applicant prays for reinstatement of his candidature and setting aside of the debarment order.
7. Learned counsel for the applicant further submitted that the case of the applicant is similar to the applicant of OA No. 149/2022 (Pankaj Kumar Yadav Vs. Union of India and others) decided by this Bench on 24.02.2025, OA No. 1814/2015 (Amar Singh Vs. Union of India and others) decided by this Bench on 22.03.2025. He has also relied upon the judgment of Hon'ble High Court in the case of Vijay Pal and 22 others Vs. Union of India and 3 others in Writ 'A' No. 21096 of 2018 decided on 16.5.2023. The judgment of Hon'ble High Court was challenged before the Hon'ble Supreme Court by way of SLP (C) No. 24965/2023 (Union of India and others Vs. Vijay Pal & others) decided on 09.12.2024 and SLP was dismissed. He has further submitted that the applicant will be satisfied if similar order is given in the instant OA.
8. Thus, referring to the entire facts and circumstances of the case, learned counsel for the applicant further argued that respondents have passed the illegal order thereby denying the applicant his selection and also debarring him from future examinations of RRB / RRC and prayer was made to quash the impugned order and allow the OA with the relief as sought.
9. In rebuttal, learned counsel for the respondents argued that the applicant's candidature was rightly rejected in accordance with the terms and conditions stipulated in the Employment Notice No. 02/2008, owing to a clear case of impersonation. It is further argued that a mismatch in the applicant's thumb impression was detected during the biometric verification process conducted between the written examination and the Physical Efficiency Test (PET). The applicant was served with a show cause notice and given an opportunity to explain the fact, but his reply was found to be unsatisfactory. The matter was further examined by the Government Examiner of Questioned Documents (GEQD), whose expert MANISH KUMAR SRIVASTAVA 5 report confirmed the mismatch, thereby establishing impersonation. Further, to substantiate his case, learned counsel for the respondents has also placed reliance upon the judgment passed by the Hon'ble Supreme Court of India in S.S. Balu and another Vs State of Kerala and others reported in (2009) 2 Supreme Court Cases 479 and argued that there is no indefeasible right in favour of the applicant to be appointed despite the fact that he is in select list or otherwise. Thus, arguing that the action of the respondents was in conformity with the prescribed rules and provisions, learned counsel prayed that the OA be dismissed as being devoid of merits.
10. We have considered the rival contentions advanced by the learned counsel for the parties and carefully perused the documents on record.
11. At the outset, it is pertinent to record that in the case of Vijay Pal (supra), O.A. filed before this Tribunal was dismissed. Applicants of the OA challenged the order before the Hon'ble High Court vide aforesaid writ. The Hon'ble Allahabad High Court, while deciding the matter has held as under:-
"HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral citation No. 2023; AHC 106025-DB AFR Reserved Case No. Writ A No. 21096 of 2018 Petitioner; Vijay Pal and 3 others Respondents: Union of India and 3 others Counsel for the petitioner : Shyamal Narain, Ravi Prakash Bhatt.
Counsel for respondents: Vivek Kumar Rai, Manish Pandey, Rajnish Kumar Rai Hon'ble Rajendra Kumar-IV,J.
Suneet Kumar. J.
1. Heard Shri Shyamal Narain, assisted by Shri Ravi Prakash Bhatt, learned counsel for the petitioners and Shri Manish Pandey, learned counsel appearing for the respondent.
2. Petitioner/original applicants, herein, are challenging the judgment and order dated 1 May 2018, passed by the Central Administrative Tribunal MANISH KUMAR SRIVASTAVA 6 Allahabad Bench, Allahabad (for short 'Tribunal'), whereby, their candidature for appointment on Group-D post has been rejected.
3. Railway Recruitment Cell, North Central Railway, Allahabad (for short 'RRC'), invited applications from eligible candidates for recruitment to Group-D posts, i.e., Khalasi, Helper, Trackman, Peon, Parcel Porter, Safaiwala, etc. under North Central Railway, vide advertisement No. 01/2013, dated 27 July, 2013.
4. Petitioners appeared for the written test and were declared successful. The select list was published on the official website of R.R.C. on 15 December 2015. Thereafter, petitioners appeared for the Physical Examination Test (for short 'P.E.T'.), held between 10 March 2015 to 14 March 2015, finally, 2609 candidates, including the petitioners came to be declared successful in the P.E.T. Thereafter, all the candidates, including, petitioners were called for verification of the documents and medical examination. The select list published on the website on 15 December 2015, was accompanied by a note running in fourteen paragraphs. The paragraph relevant for the purposes of this case is extracted:
"During various stages of scrutiny and Document Verification 339 candidates found indulged in impersonation. It is roved following extant procedure that these candidates did not appeared inn the written examination but some one else appeared in place of these candidates or handwriting/thumb impression of these candidates did not match in various documents. Hence apart from cancellation of candidature of the 339 candidates they are being debarred from all Railways examination through out Indian Railways as well as criminal case may also be registered against them on case to case basis."
5. The candidature of the petitioners was rejected with the remarks 'handwriting/thumb impression mismatch'.
6. Aggrieved, petitioners approached the Tribunal by filing original application, being O.A. No. 1789 of 2015, Vijay Pal and others versus Union of India and others, which came to be dismissed by the impugned order dated 1 May 2018.
7. During pendency of the original application, an interim order dated 31 December 2015, was granted by the Tribunal directing the respondents to keep 23 Group-D posts vacant. The operative portion of the order is extracted:
"Having heard learned counsel for both sides, it appears that the grounds for rejection are stigmatic and therefore some opportunity ought to have been given to the applicants before rejecting their candidature by the respondents. Therefore, prima facie, a case for interim protection is made out. Accordingly, the respondents are directed to keep 23 posts vacant till the next date.
If the facts are otherwise, the respondents are at liberty to file stay vacation application."
8. During pendency of the original application, petitioners came to be issued memorandum dated 23 January 2016, stating therein, that though the candidature of the petitioners was already cancelled, however, petitioners were called upon by the respondents to show cause as to why they may not be debarred from all future R.R.C./R.R.B. examinations, further, why criminal case may not be instituted against them for indulging in malpractice to procure Government job by fraud and misrepresentation.
MANISH KUMAR SRIVASTAVA 7
9. The notice alleged that the petitioners had resorted to impersonation, further, it was alleged that there was mismatch in the handwriting, and/or, thumb impression of the candidates. In other words, allegation against the petitioners was that they have resorted, by securing the services of someone else, in the written test on their behalf. The allegation levelled in the two memorandums of the same date is extracted:
"I. As confirmed by the Government Examiner of Questioned Documents, Hand writing on the Application Form and that on answer sheet (OMR)/verification sheets are of different person (s). It has been established that the candidate did not appear himself in the written examination or PET examination and rather somebody else appeared in the same on his behalf, which is a case of impersonation, a malpractice and an offence.
II. As you are aware bio-metrics attendance were obtained during each phase of examination. It is to bring into your notice that your thumb impression during document verification did not match with written and PET examination. It means someone else had appeared in written and PET examination impersonating your candidature."
10. Petitioners filed their objections to the show cause notice/memorandum denying the allegations of impersonation or mismatch in handwriting, and/or, thumb impression. The respondent- authority vide order dated 31 March 2016, rejected the objection stating that the reply submitted by the petitioners were not found satisfactory. Consequently, petitioners were debarred from taking future R.R.B./R.R.C. examinations for life.
11. Aggrieved, petitioners through an amendment application challenged the memorandum dated 22 January 2016 and the debarment order dated 31 March 2016.
12. The learned Tribunal, after exchange of pleadings and hearing the counsels for the respective parties, by the impugned order, partly allowed the original application of the petitioners. The impugned orders to the extent debarring the petitioners from future R.R.B/R.R.C. examinations for life was set aside. The decision of the respondents, however, cancelling the candidature of the petitioners was not interfered with.
13. The operative portion of the impugned order reads thus:
"24. In the circumstances, following the decision taken in the case of Santosh Kumar Tiwari (supra) to this case, we also come to the conclusion that from the facts and circumstances of the case based on the materials on record and as discussed in para 22, the respondents have not been able to establish the allegation of impersonation against the applicants, since the allegation comprised of only mismatch of thumb impression or handwriting, without any mismatch of the signature of the applicants. In case of impersonation the mismatch in signature would have been detected also. The mismatch of signature is not reported or detected for any of the applicants in this case. However, there is violation of the instructions of the examination as per the advertisement No. 1/2023, for which there is mismatch of handwriting or mismatch of thumb impression for the applicants and these mismatches have not been explained satisfactorily as the explanation in one applicant's explanation/reply at Annexure A-10 of the OA reveals. In fact, there are such violations as mentioned in the Suppl. Affidavit filed by the applicants. Further, no specific reason has been indicated in the show cause notice or impugned MANISH KUMAR SRIVASTAVA 8 order in support of the allegation of impersonation against any of the applicants. Hence, taking into accounts the facts of the case, we consider the cancellation of the candidature of the applicants for the advertisement No. 1/2013 to be just and proper. But the decision of the respondents to debar some of the applicants for all examinations of RRCs/RRBs is not at all justified based on the materials on record. Accordingly, the impugned orders dated 31.03.2016, debarring the applicants from all examinations of RRCs/RRBs is set aside and quashed. However, we uphold the decision/orders of the respondent No. 2 to cancel the candidature of the applicants for the examination pertaining to the advertisement No. 1/2013. Respondent No. 2 is directed to modify the penal action against the applicants accordingly. The interim orders in the case to keep 23 posts vacant in OA No. 1789/2015 and one post vacant in OA No. 73/2016 are vacated and if some of the applicants have appeared in subsequent examinations provisionally by virtue of the interim orders, their candidature shall be considered by the respondent No. 2 as per the rules applicable for the said examination in view of the quashing of the punishment of debarment from all examinations of RRCs/RRBs as per this order.
25. For the OA No. 73/2016, the allegation against the applicant is for mismatch of handwriting as verified by the GEQD like the case of the applicant No. 1 in the OA No. 1789/2015. The reply furnished to the show cause notice and enclosed at Annexure SA-2 of the Supplementary Affidavit filed b the applicant, does not give any convincing explanation for mismatch of handwriting. Hence, the finding as at para 24 will also be applicable for the OA No. 73/2016.
26. Before we part with the case, we notice that there appears to be no Rule or Regulation laying down the procedure to be followed by the RRC/RRB, in situations where there are discrepancies for a candidate like mismatch of handwriting or thumb impression or signature etc. or allegation of impersonation in the examination, as no such Rule/Regulation has been produced before us in this case. The respondents may consider to put in place an appropriate Rule/Regulation to deal with such situations in a just and fair manner as per the provision of law."
14. The coordinate Bench of this Court, on filing of the writ petition by the petitioners, passed an interim order dated 1 October 2018, staying the impugned order of the Tribunal until further orders and directed the respondents to keep 23 posts vacant and that would abide by the out come of the writ petition. The operative portion of the interim order is extracted:
"Having regard to the facts and circumstances of the case, until further orders, the impugned order date 01.05.2018 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad in O.A. No. 1789/2015 shall remain stayed and the respondents are directed to keep 23 posts vacant."
15. Learned counsel for the respondents, on specific query, admits that the respondent-Railways have not filed writ petition challenging the order of the learned Tribunal, insofar as, the impugned order recorded a categorical finding with regard to impersonation that '... the respondents have not been able to establish the allegation of impersonation against the applicants, since the allegation comprised of only mismatch of thumb impression or handwriting without any mismatch of the signature of the MANISH KUMAR SRIVASTAVA 9 applicants. In case of impersonation, the mismatch in signature would have been detected also. The mismatch of signature is not reported or detected for any of the applicants in this case...'
16. In the aforenoted backdrop, the learned counsel appearing for the petitioner submits that insofar as the allegation of impersonation levelled against the petitioners was held unworthy of belief by the learned Tribunal, rather, the allegation of impersonation was specifically rejected. The finding to that effect has attained finality as the same has not been challenged by the respondents.
17. It is, therefore, urged that after returning a categorical finding with regard to impersonation being unbelievable, Tribunal committed an error in upholding the decision of the respondents to cancel the candidature of the petitioners at the examination. In other words, it is submitted that the petitioners had appeared for the examination and are entitled to appointment. In the circumstances, the question of mismatch of handwriting/thumb impression would not arise.
18. It is further submitted that the categorical finding recorded by the Tribunal that '... the respondents have not been able to establish the allegation of impersonation against the applicants...' is contradictory for the reason that mismatch of handwriting, or, thumb impression, is possible in the event of impersonation.
19. It is further urged that it can safely be said that all the petitioners stand totally exonerated of the main charge of impersonation which was the substance and basis of the show cause notice/memorandum issued to them. It is further submitted that the candidature of the petitioners came to be cancelled prior to the issue of show cause notice/memorandum, accordingly, there is an element of pre-determination of mind of the respondent-Railways against the petitioners. The memorandum was confined to debarment from all future examinations for resorting to impersonation.
20. In the counter affidavit filed by the respondent, it is not being disputed that the petitioners herein were not confronted with the expert opinion or of the opinion of the Government Examiner for Questionable Documents (GEQD) . It is admitted that on the allegations based on the opinion of the expert, memorandum was served upon the petitioners to show cause with regard to their debarment and with not regarding the cancellation of their candidature in the examination. In other words, insofar as, cancellation of the candidature of the petitioners, was final as the memorandum was confined with their future debarment in RRB/RRC examinations. It is further stated that after considering the reply of the petitioners, the candidates came to be debarred. The candidature of the petitioners was cancelled due to the acts of irregularities/omissions noted in the impugned order. It is, however, not denied that material relied upon in non-suiting the petitioners, i.e., the expert opinion was not supplied to the petitioners, nor, filed before this Court or the Tribunal. In other words, the orders of cancellation of candidature came to be passed behind the back of the petitioners while cancelling their candidature, thereafter, upon notice, petitioners were debarred for all future RRB examinations.
21. It is not the case of the respondent-Railways that the show cause notice/memorandum was supported by any material, including, the opinion of the handwriting expert. Opinion of handwriting expert was not supplied in support of the memorandum to justify the allegation of mismatch of handwriting/thumb impression on the application form or on the subsequent papers pertaining to Written Examination/P.E.T. undertaken by the petitioners. The entire exercise was undertaken by the Railways behind the back of the petitioners.
22. The question that requires consideration is as to whether the respondents were justified on the available materials on record to hold MANISH KUMAR SRIVASTAVA 10 petitioners guilty of impersonation, and/or, mismatch of handwriting/thumb impression on various documents.
23. In Rajesh Kumar vs. Union of India and others1, this Court observed that handwriting expert opinion is at best an opinion, which is not conclusive proof of mismatch of handwriting or impersonation. Expert opinion has been considered to be of very weak nature, which requires corroboration from other material facts pertaining to the allegation.
24. This Court held as follows:
"Evidence of an expert is only an opinion. Expert evidence is only a piece of evidence and external evidence. It has to be considered along with other pieces of evidence. Which would be the main evidence and with is the corroborative one depends upon the facts of each case. An expert's opinion is admissible to furnish the Court a scientific opinion which is likely to be outside the experience and knowledge of a Judge. This kind of testimony, however, has been considered to be of very weak nature and expert is usually required to speak, not to facts, but to opinions. It is quite often surprising to see with what facility, and to what extent, their views would be made to correspond with the wishes and interests of the parties who call them."
25. The decision of the respondent is based on the expert opinion alone to establish guilt of impersonation, and/or, mismatch of handwriting/thumb impression without affording opportunity or confronting the petitioners with the material/opinion. Had it been so, the petitioners in their defence could also have obtained an opinion of the expert to confront the Railways. The impugned order of cancellation of the candidature of the petitioners could not have been sustained on the opinion of handwriting expert.
26. In Ran Vijay Singh and others vs. Union of India and others2, this Court in similar facts set aside the cancellation of the candidature and their debarment for three years from appearing in any examination of the Commission on the strength of an expert opinion.
"23. In the facts of the present case, despite allegation made in the notice dated 5.8.2015 about thumb impression, signatures and handwriting having not tallied, the respondents have confined their conclusion to the opinion of the handwriting expert. Such opinion cannot be construed as being conclusive.
24. In the present case not only the petitioners have been denied appointment but they are also debarred from appearing in any examination conducted by the Commission for three years. Such order of Commission is clearly stigmatic in nature. The order under challenge carries civil consequences also. Such order cannot be sustained merely on the strength of handwriting report, nature of which remains that of an opinion, and cannot be construed as conclusive.
25. The report of CFSL based upon handwriting expert's opinion, moreover, has not been furnished to the petitioners. Petitioners consequently had no opportunity to controvert it."
27. The decision rendered in Ran Vijay Singh (supra), was carried intra court appeal in Union of India and others vs. Ran Vijay Singh and others3, Division Bench observed as follows:
MANISH KUMAR SRIVASTAVA 11 "At this juncture, we would also like to state that it is not the case of the appellant-respondents that the process of selection suffers from mass- irregularity, but of unfair practices adopted by certain individuals.
Looking to this background also, we are of the considered opinion that while cancelling examination of the respondent-petitioners and further debarring him for three consecutive examinations the appellant should have supplied a copy of the opinion given by the handwriting expert. Non- supply of that is in violation of principles of natural justice."
28. The aforenoted authorities came to be followed by the Division Bench in Bhupendra Singh vs. Union of India and anothers4, the relevant part of the order is extracted:
"In both Ran Vijay Singh and Tulasi Ram Prajapati, the learned Judge found that the candidature of the petitioners could not have been unilaterally annulled without granting them an opportunity to rebut the findings recorded by the expert. These principles are clearly attracted to the facts of the present case. The submission of the learned Standing Counsel that the order is not stigmatic and there is no violation of Article 311 of the Constitution do not merit consideration since principles of natural justice would clearly apply in all situations where a person is visited with serious civil consequences. Once the name of the petitioner stood included in the select list, his removal from the same on the allegation of impersonation must necessarily have been preceded by the issuance of a notice or at least an opportunity of hearing to the petitioner to establish that the adverse material which was relied upon by the respondents was not liable to be accepted. It is well settled that the opinion of an expert is not conclusive and remains just that, namely, an opinion."
29. The respondents in the given facts of the case at hand were expected to confront the petitioners with the material relied upon against them, particularly, when the petitioners were being debarred from appearing in any further examination conducted by the RRB/RRC and their candidature was cancelled for the examination on mismatch of handwriting/thumb impression.
30. The opinion of the expert was required to have been viewed and considered with other materials available on record. The learned Tribunal has discarded the theory of impersonation setup by the respondent- Railways, then in that event, mismatch of handwriting/thumb impression of the petitioners becomes unsustainable, unless supported by any other material or evidence that petitioners have not appeared in the examination or have not filled the application form in their handwriting.
31. The respondent-Railways, in their counter affidavit, have not denied that at all stages of the examination, i.e., Written Test and P.E.T., thumb impression and signatures of the candidates was taken and the entire process was video-graphed. In this backdrop, it cannot be said that though the petitioners had appeared for the examination, yet at the same time, there was mismatch in handwriting/thumb impression.
32. It is not the case of the respondents that the petitioners, herein, had not carried the relevant documents, including, identity card to the examination centre or had not participated in the P.E.T./Medical Examination.
33. In the circumstances, it cannot be said in absence of any other material available with the Railways, that it is a case of mismatch in MANISH KUMAR SRIVASTAVA 12 handwriting/thumb impression. The inference of the Railways is based on an opinion without being supported by any other material, i.e., the petitioners had not appeared at different stages of the selection process.
34. In service jurisprudence, though Evidence Act is not applicable, the charge is not required to be proved beyond reasonable doubt, but on the principle of preponderance of probability, based on some material evidence against the petitioners. It is not a case of disciplinary proceedings, neither, it is a case set up by the Railways, that there was large scale irregularities in the examination process, only few candidates have been picked-up and their selections cancelled merely on an opinion obtained behind the back of the petitioners without confronting the petitioners with the incriminating material.
35. The respondent's action otherwise is not inconformity with the principles of natural justice, accordingly, the impugned order dated 1 May 2018, being stigmatic cannot be sustained.
36. Accordingly, the writ petition is allowed. Respondents are directed to appoint the petitioners on Group-D post forthwith.
37. It is clarified that no other ground or point was pressed by the counsels for the respective parties.
38. No cost.
Order Date :- 16.5.2023".
It is noteworthy to mention here that SLP (C) No. 24965/2023 filed against the decision of Hon'ble High Court passed in aforesaid Vijay Pal (supra) case has also been dismissed by the Hon'ble Supreme Court on dated 09.12.2024, thus, the order of the Hon'ble High Court has attained finality.
12. In the instant case, as is evident from the records, the applicant had applied against the advertisement No. 2/2008. The applicant's candidature was also cancelled due to mismatch of thumb impression. Show cause notice was issued. Reply was also made. No supporting evidence has been collected by the respondents to affirm the opinion regarding mismatch of thumb impression except the report of handwriting expert. The Hon'ble High Court of Allahabad in the identical circumstances has adjudicated upon a case vide Writ A No. 21096 of 2018 titled Vijay Pal and 22 others Vs. Union 12 of India and 3 others wherein the candidates' candidature were also cancelled by the respondents and they were debarred from future employment but Hon'ble High Court has set aside the order passed by the respondents against those candidates. Hon'ble High Court also directed the respondents to issue appointment letter in respect of those candidates.
MANISH KUMAR SRIVASTAVA 13 Respondents Union of India approached before the Hon'ble Supreme Court of India through SLP No. 24965 of 2023 which was also dismissed. The case of the present applicant is identical to the case of Vijay Pal (supra) and thus on close analysis of the entire facts and circumstances of the case and comparing the same with the facts and circumstances of the case of Vijay Pal (supra), we are of the considered view that the present OA is also liable to be allowed in line with Vijay Pal (supra) case and the impugned order passed against the applicant cancelling his candidature and debarring him from future employment is also liable to be quashed and set aside.
13. As far as issuance of direction to the respondents to appoint the petitioner on Loco Pilot post is concerned, learned counsel for the applicant has argued that since in the similar circumstances, the Hon'ble High Court after setting aside the order passed by the Tribunal in the OA, had directed the respondents to issue appointment letter in favour of the applicants of that OA, thus the applicant herein is also entitled for appointment against the advertisement No. 2/2008. It is also argued on behalf of the applicant that although in the Vijay Pal (supra) case, the respondents were directed to keep the 23 posts vacant till the next date and no such interim protection has been granted in the present matter, yet, the applicant, on setting aside the impugned order, cannot be kept in lurch or he cannot be left remediless. Thus, argued to issue direction to the respondent to give appointment to the applicant against the vacant posts and if no posts are vacant, direction be issued to create supernumerary post and to accommodate the applicant till the regular vacancy is made available.
14. On the contrary, learned counsel for the respondents submitted that no vacancy is available as on date for the post in question. It is argued that the recruitment process was carried out strictly in accordance with the notified number of vacancies as per the Employment Notice issued at the relevant time. The panel was drawn against the sanctioned posts, and the entire selection process was concluded accordingly. It is further submitted that the applicant's candidature, having already been rejected due to impersonation and biometric mismatch, cannot now be MANISH KUMAR SRIVASTAVA 14 considered for appointment especially when there exists no available vacancy. Moreover, the learned counsel contended that the applicant cannot claim appointment as a matter of right, especially in absence of a clear vacancy, and no direction can be issued by the Tribunal to the respondents to create a supernumerary post for accommodating the applicant.
15. We have also analyzed the situation as argued by the learned counsel for both the parties and are of the opinion that when the impugned order is set aside in view of the law laid down by the Hon'ble High Court in Vijay Pal (supra) case which has been affirmed by the Hon'ble Supreme Court of India, the applicant cannot be left without a remedy. The instant case of the applicant is an extraordinary situation and it is needless to reiterate that such extraordinary situations require extraordinary solutions. Thus, to meet the end of justice and in the fitness of things, it would be appropriate to issue direction to the respondents to issue appointment letter in favour of the applicant against the advertisement no. 02/2008 and grant him appointment. If no vacancy is available, a supernumerary post may be created and the applicant be accommodated thereon till a regular vacancy is available.
16. Further, as regards to the case law viz. S.S. Balu (supra) relied upon by the respondents, we have also carefully perused the aforesaid judgment and are of the opinion that there are much distinguishable facts between the present case and the facts of the case law relied upon by the learned counsel for the respondents. The ratio laid in the case of SS Balu (supra) cannot be applied to the present matter as the applicant has approached before this Tribunal timely and there is no delay in challenging the impugned orders.
17. Thus, in view of the aforesaid discussions and analysis, the instant original application is allowed and the impugned order dated 11.4.2011 is hereby quashed and set aside. The competent authority amongst the respondents is hereby directed to grant appointment to the applicant against the advertisement no. 02/2008. If no vacancy is available at present, a supernumerary post be created and the applicant be MANISH KUMAR SRIVASTAVA 15 accommodated thereon till a regular vacancy is made available. This exercise must be completed within a period of four months from the date of receipt of certified copy of this order, without fail. All associated MAs stand disposed of accordingly. No costs.
(Mohan Pyare) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
Manish/-
MANISH KUMAR
SRIVASTAVA