Central Administrative Tribunal - Delhi
Sunil Mann vs Govt. Of Nct Of Delhi on 3 February, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2876/2011 NEW DELHI THIS THE 3rd DAY OF FEBRUARY, 2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. A.K. MISHRA, MEMBER (A) Sunil Mann, S/o Sh. Bhoop Singh, R/o H. No. 207, V.P.O. Khera Khurd, Delhi-110082. Applicant. (By Advocate Shri Ajesh Luthra) Versus 1. Govt. of NCT of Delhi Through the Chief Secretary, 5th Floor, Delhi Sachivalaya, New Delhi. 2. Delhi Subordinate Services Selection Board, Through its Chairman, Govt. of NCT of Delhi, F-18, Karkardooma Institutional Area, Delhi-92. 3. The Director, Delhi Fire Service, GNCT of Delhi Connaught Place New Delhi. Respondents. (By Advocate Mrs. Alka Sharma) ORDER (ORAL)
Mr. G. George Paracken:
The applicant in this O.A has sought the following reliefs:
quash and set aside the impugned order so far as it relates to rejection the applicants candidature and debarment;
direct the respondents to immediately further process the case of appointment of the applicant for post code 003/09-Post of Fire Operator in Delhi Fire Service and issue necessary orders with all consequential benefits;
if deemed necessary in respect of prayer (b) above, to obtain the opinion of handwriting expert from any concerned Govt. Institute, like FSL, CFSL etc. award costs of the proceedings and;
pass any other order/direction which this Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
2. The respondent Delhi Subordinate Services Selection Board (`DSSSB for short) had issued the Annexure A-3 Advertisement No. 01/2009 for various posts including Fire Operators in Delhi Fire Service under the Govt. of NCT of Delhi. There was a total of 1242 vacancies. The applicant applied for the aforesaid posts under the OBC category. He was allotted Roll No. 00325829. He qualified the test/examination. However, in the case of a number of candidates including that of the applicant, the respondents found inconsistencies in respect of signatures, handwriting, etc. and, therefore, it has been referred to a Committee set up by the DSSSB for further verification. Thereafter, the DSSSB sent a notice to him for scrutiny of his signatures and handwriting. He appeared before the Committee and his specimen signatures, handwriting, thumb impressions were taken. However, vide the impugned Annexure A-1 order dated 10.06.2011, his candidature was rejected on the basis of the report submitted by the Verification Committee.
3. The learned counsel for the applicant has submitted that his case is squarely covered by the earlier order of this Tribunal in O.A 3415/2010 and O.A 65/2011 - Sanjay Kumar Vs. Govt. of NCT of Delhi & Ors. and connected cases, decided on 21.07.2010. The undisputed facts in those cases revealed that the candidatures of the applicants therein were withheld on account of certain glaring variations in their handwriting/signature/thumb impression. Thereafter, the Committee set up by the DSSSB obtained the samples of handwriting/signature/thumb impression from the candidatures and examined and compared with their respective comparison but it had been found that the handwriting/signatures/thumb impression furnished by the applicants therein as well as the handwriting/signature/thumb impression available with the Board were not matched with one another. Therefore, the DSSSB, after considering the report of the said Committee, was satisfied that there were sufficient reasons to believe that they had indulged in the misconduct of procuring impersonation and it decided to debar them for appearing in any examination conducted by the Board for next 05 years. However, this Tribunal held that the aforesaid findings were not based on handwriting and finger-print experts. Therefore, without going into the merits of the controversy, this Tribunal held that the adverse orders with deterrent consequences such as debarring the applicants for appearing in any examination of the respondent Board for the next 05 years have been passed without even putting them to notice and, therefore, the same need to be set aside on the ground that it violates the principles of natural justice. Accordingly, the aforesaid decision was set aside with a liberty to proceed in the matter and pass final orders after putting them to notice and giving them chance to prove their innocence even by permitting to bring on record such material as may be relevant, and opinion of handwriting and finger-print expert. However, if the orders as impugned were to be reiterated, the same shall be speaking and containing reasons for rejecting the defence, if any, projected by the applicants therein. The relevant parts of the said order read as under:
3. One of the grounds taken in support of the OA is that such a harsh action whereby the applicant is not only not to be appointed on the post for which he has qualified in the written examination and physical endurance test, but would also be debarred for appearing in any examination conducted by the Board for the next five years, which may block his entry in Government service for all times to come as he may be overage after five years, could not be passed without putting the applicant to notice, and that before passing the impugned order, not even a show cause notice was given to the applicant. This, it is urged by the learned counsel representing the applicant, would be in complete violation of the principles of natural justice.
4. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and filed their reply, wherein the pleadings made are in tune with the impugned order already reproduced hereinabove. There would be thus no need to make a mention of the same. The facts as mentioned in the OA have not been disputed. That the applicant was not heard in the matter at any given time is also an admitted position.
5. Having heard the learned counsel representing the parties and with their assistance examining the records of the case, we are of the view that unless the applicants were issued show cause notice and heard in the matter, the orders as impugned in the present OAs could not be passed. It is no doubt true that the allegations made against the applicants are of serious nature. Impersonation in examination is out and out cheating, which would not only make an undeserving candidate to hold a public post, but the same would be also at the cost of someone who may be deserving to hold the post. The matter indeed needed to be taken seriously, but we are of the firm view that such an action, which, as mentioned above, has not only resulted in non appointment of the applicants, but would also debar them from appearing in any examination to be conducted by the respondent Board for the next five years, is too severe a punishment to be inflicted without giving even a chance to the concerned candidate to prove his innocence. We would, at this stage, not like to comment with regard to observations made in the impugned order as that may, in the ultimate analysis, when the matter is re-decided, prejudice the case of one or the other party. Suffice it may, however, to say that from the impugned order and the counter reply filed on behalf of the respondents, it appears, even though prima facie, that the signatures and/or thumb impression of the candidates were not examined by any handwriting and finger-print expert. Our observation made above is only with a view to point out that there could be moot points to be urged by the applicants while calling in question the impugned orders.
6. We, as mentioned above, would not like to go into `the controversy on merit at this stage and our observations made above, as mentioned, are prima facie or tentative. Inasmuch as, adverse order with deterrent consequences, such as debarring the applicants to appear in any examination of the respondent Board for the next five years, have been passed without even putting the applicants to notice, the same needs to be set aside on the ground that it violates the principles of natural justice. That being so, we set aside the impugned order dated 27.9.2010, with liberty to the respondents to proceed afresh in the matter and pass final orders after putting the applicants to notice and giving them chance to prove their innocence even by permitting to bring on record such material as may be relevant, and opinion of handwriting and finger print expert. Surely, if the orders as impugned are to be reiterated, the same shall be speaking and containing reasons for rejecting the defences, if any, projected by the applicants.
7. The two Original Applications are disposed of in the manner fully indicated above, leaving, however, the parties to bear their own costs.
4. The learned counsel for the applicant has also relied upon another case, OA 3389/2010 Shri Sushil Kaushik Vs. Govt. of NCT of Delhi & Ors. decided by this Tribunal on 17.08.2011. The applicant therein was debarred from appearing in the examination for 05 years on the ground that he had indulged in misconduct in written examination for procuring impersonation. The said O.A. was allowed and the relevant parts of it read as under:
3. The final result was issued in May, 2010. However, result of the applicant was kept pending. The specimen signatures, handwriting and thumb impression of the applicant were taken and he was also asked to orally answer the questions which he had attempted in the written examination. When nothing was heard, he moved an application under RTI which revealed that his result has been withheld as his specimen signature/handwriting obtained from him by team of Deputy Secretaries were not found matching with the signature/handwriting as appearing in admit card/answer sheet, thus it was a case of mismatch identity. Being aggrieved, applicant gave a detailed representation stating therein that he had appeared and qualified in various competitive exams like Delhi Police Constable (2007), Haryana Police Sub-Inspector (2008), CPO (SSC) 2008 Sub-Inspectors, CPO (SSC) 2009-Sub-Inspector, Combined Graduate Level (SSC) 2010, CDS Exam 2008 (1) (UPSC), CDS Exam 2009 (2) (UPSC) and CDS Exam 2010 (1) UPSC. The applicant has specifically stated in para 4.7 of the OA that in the instant selection, he has himself appeared and was selected. In case of doubt opinion of handwriting expert may be taken to sort out the controversy. In any case, he could not have been debarred from taking the examination for 5 years without even informing him the actual reason of mismatch. He has thus prayed that the OA may be allowed.
4. Respondents have stated applicant was a candidate for the post of Warder in the Department of Prisons, Government of NCT of Delhi in selection processed by the Board under post code No.13/08. As per result in the notice dated 26.02.2010, his name appeared in the select list but his selection to the post was subsequently cancelled vide corrigendum dated 04.10.2010 because during verification of genuineness of his candidature for the post, the facts about his indulgence in misconduct in written examination for procuring impersonation, came into notice.
5. It is further submitted that the Board immediately after declaration of final results of the post code No.13/08, candidates whose results were indicated in pending list or marked with * for completion of documentations or verification of candidature, were examined by the Board and glaring variations in their handwriting/signature/thumb impression came into notice. On scrutiny of dossiers, it was also noticed that some of the candidates in contravention of the terms and conditions of advertisement had pasted blurred photograph in their application form or had pasted defaced photographs. Thumb impressions had also been put up by them in the exam. related documents, i.e., admit card/descriptive answer sheets in such a manner that the same cannot be recognized. That on detecting glaring discrepancies in the dossiers of candidates indicated in pending list etc., the Board took a decision to get examined genuineness of candidature of all selected candidates by a Committee. Accordingly, all the candidates whose roll numbers were in result notice dated 26.02.2010 or whose results were in pending list of the result notice dated 26.02.2010, were called in Board office for verification of candidature etc.
6. They have further explained that after obtaining samples of handwriting/signature/thumb impression from the candidates, the Committee had examined handwriting/signatures/thumb impressions of the candidates with respect to the exam. related records and furnished their report. As per report of the Committee, applicants name was indicated in the list of candidates whose signature/handwriting was not found matching with the exam. related documents. That on consideration of the report of the Committee, the Board took a decision to debar the applicant from appearing in any examination conducted by the Board for next 5 (Five) years and simultaneously cancelled his candidature for the post. They have thus prayed that the OA may be dismissed.
7. We have heard both the counsel and perused the pleadings also.
8. Perusal of order of debarment dated 27.9.2010 shows it is a general order referring to some of the candidates whose handwriting/signature/thumb impression did not match with the samples taken by the Committee from the candidates. However, it nowhere states as to in which category applicants case falls in; whether his handwriting did not match or his signature did not match or his thumb impression did not match. Even otherwise, it is specifically stated by the counsel for the applicant that before passing such an order, no show cause notice was given to the applicant as a result he could not even defend himself effectively before the Board. Definitely the order passed on 27.9.2010 has serious implications affecting his career for all times to come, therefore, the least that was required was to give him a show cause notice so that he could have defended himself. Debarring a person from appearing in any examination to be conducted by DSSSB for next 5 years is definitely a very harsh decision which could not have been passed without affording an opportunity to the applicant. Even otherwise, perusal of order shows respondents have not even mentioned specifically as to what was the mismatch in the case of applicant; whether it was with regard to his hand writing, signature or thumb impression. This order, in fact, seems to have been passed in a stereotype manner without even giving the basic details to the each candidate, therefore, it gets vitiated on this ground also. Even otherwise, in case respondents had any doubt with regard to the handwriting, signature or thumb impression of the candidates, they should have referred the matter to the Expert on the subject, namely, CFSL or some other institute to find out the truth after taking sample of handwriting, signature or thumb impression from the candidates. Not having done so, we are satisfied that order dated 27.9.2010 cannot be sustained in law. The same is accordingly quashed and set aside. However, liberty is given to the respondents to pass fresh orders in accordance with law after giving show cause notice to the applicant and after considering his reply and if need be, after referring the matter to the Expert on the subject. This shall be done within a period of 2 months from the date of receipt of a copy of this order so that the applicant knows his fate.
9. With the above direction, this OA stands disposed of. No order as to costs.
5. Another case relied upon by the learned counsel for the applicant was O.A 3789/2010 Somdutt Yadav Vs. Delhi Subordinate Services Selection Board & Ors. decided on 07.09.2011 wherein also the candidature of the applicant was cancelled with the remarks NE CAP SIGNATURE (Not eligible Capital Signature). The aforesaid case was disposed of with a direction to the DSSSB to verify and compare the signature of the applicant therein from the original application form and the other documents available with them. The relevant parts of the said order read as under:
8.1 Having carefully considered the respective submissions by both the learned counsels and the material on record, it is noted that the ground for cancellation of candidature in this case is more a technical one. Harbouring of any reservations about the genuineness of the candidature does not seems to be the issue here. As stated by the applicants learned counsel, the respondents had several means open before them to verify the signature (elaborated in para 4.10 of the OA ); however, they chose not to resort to such an option.
The respondents learned counsel Shri Amit Anand, on our specific direction, would in all fairness submit that had the candidature of the applicant not been cancelled, he would have been selected on merit.
8.2. Even though the right to appointment has still not assumed the status of a fundamental right; nor can any candidate claim any vested or legally enforceable right for appointment; however, the rejection of an otherwise qualified candidate on such a hyper technicality would not meet the test of fairness and reasonableness. Holding fair play and reasonableness as the touch stone of any administrative action the Honble Apex Court had observed the following in Man Singh Vs. State of Haryana and Ors.(2008 (1) Scale 750):
..any act of repository of power whether legislative or administrative or quasi judicial is open to challenge, if it is so arbitrary or unreasonable that no fair minded authority could ever have had it That such a consideration would be a valid one is borne out by the case laws relied on by the applicants, learned counsel; even though they are factually distinguishable. The point driven home in these judgments by the Honble Apex Court is that in judicial scrutiny in such matters the weight has to be thrown in favour of substantive justice.
8.3. As per their own admission, the final scrutiny is done only in limited number of cases of the candidates found to have been successful and within the zone of consideration. Hence the rejection of the applicants case simply on the ground taken here, without caring to verify genuineness of the candidature by several alternative means available with the respondents cannot be justified.
9. Resultantly allowing the OA partly, it is disposed with directions to DSSSB to verify and compare the signature of the applicant from the original application form and the other documents available with them as contended in the OA. In the event of positive outcome, and the candidate otherwise being found eligible, the offer of appointment will be from prospective effect. In the alternative scenario, the respondents would be expected to pass a reasoned and speaking order. Our directions are to be complied within a period of three months from the date of receipt of a copy of this order. No order as to costs.
6. In our considered opinion, this O.A has to be disposed of following the earlier orders of the co-ordinate Bench in O.A 3415/2010 & O.A 65/2011 (supra), O.A 3389/2010 (supra) and O.A 3789/2010 (supra). Therefore, the impugned order is set aside so far as it relates to the rejection of the applicants candidature and debarment. The respondents are directed to immediately further process his case for appointment to the post of Fire Operator in Delhi Fire Service under Post Code 003/09, in terms of the findings in the aforesaid order. If he is otherwise found eligible for appointment, the respondents shall issue necessary orders appointing him to the aforesaid post of Fire Operator with all consequential benefits except back wages. The aforesaid direction shall be complied with within a period of three months from the date of receipt of a copy of this order. In case after verification the signature/handwriting/thumb impression do not match, a speaking order should be passed under intimation to the applicant. There shall be no order as to costs.
(Dr. A.K. Mishra) ( G. George Paracken )
Member (A) Member (J)
SRD