Central Administrative Tribunal - Delhi
Gaurav Dabas vs Govt. Of Nctd on 22 March, 2024
1
OA 1423/2017
C-4/Item-78
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A./1423/2017
Order reserved on :05.03.2024
Order pronounced on :22.03.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Gaurav Dabas, Age about 36 years
S/o Shri Dharamvir
R/o Sawda, PO Nizampur,
Delhi-110081 ...Applicant
(Through Mr. M.K. Bhardwaj with Ms.Maria Mugesh Kannan
H., Advocates)
Versus
Govt. of NCT of Delhi through :
1. The Chief Secretary
Govt. of NCT of Delhi
Delhi Secretariat, I.P. Estate,
Delhi
2. Delhi Subordinate Services Selection Board,
Through its Secretary,
3rd Floor, UTCS Building, Institutional Area,
Vishwas Nagar, Shahdara,
Delhi-110032
3. The Director General of Prisons,
Govt. of NCT Delhi
Tihar Jail, Delhi ... Respondents
(Through Mr. Amit Yadav, Dr. Monika Bhargava and Mr.
Sharat Gopal, Advocates)
2
OA 1423/2017
C-4/Item-78
ORDER
Hon'ble Dr. Chhabilendra Roul, Member (A) The present OA has been filed by the applicant against the order dated 23.11.2016 vide which the respondents have affirmed the decision debarring the present applicant for Post Code 13/08 vide order dated 27.09.2010 as well as rescinding his candidature after being selected vide order dated 4.10.2016.
2. The factual matrix of the case is as follows:
2.1 The respondents issued an advertisement No.01/2008 on 13.06.2008 for appointment to the post of Warder. The present applicant applied in pursuance to the said advertisement and he appeared in the written examination.
As per notice dated 26.02.2010, the present applicant's name appeared in the list of selected candidates for Post Code 13/08. Based on the result of physical endurance test, final result for the said Post Code was declared on 26.02.2010. Results in respect of 12 candidates were kept pending for verification of their identity in the written examination. As there were some discrepancies which created doubt regarding genuineness of the candidature of some candidates, the respondents decided that all 240 selected candidates as well as 12 candidates whose results 3 OA 1423/2017 C-4/Item-78 were withheld, shall appear before a team of Deputy Secretaries of DSSSB. The team of Deputy Secretaries, on 23.05.2010, reported that candidature of 56 candidates was prima facie not genuine. In view of the report of the team of Deputy Secretaries, the respondents debarred 59 candidates including the present applicant from appearing in any examination conducted by the Board for next five years, vide their order dated 27.09.2010.
2.2 The applicant submitted representation to the respondents for cancelling the aforesaid order. However, he did not get any response from the respondents. Being aggrieved, he filed OA No.4371/2012 against the order dated 27.09.2010 debarring the present applicant from appearing in the examinations conducted by the DSSSB for next five years. The aforementioned OA was disposed of by this Tribunal vide order dated 13.03.2014 directing the respondents to refer the case of the applicant to Forensic Science Laboratory (FSL) and get their expert advice in the matter and thereafter reconsider the case of the applicant for appointment to the post of Warder. After filing Contempt Petition No.213/2016, the respondents finally passed the order dated 23.11.2016 upholding the earlier decision of the competent authority to debar the present applicant from Post Code 13/08 as well as cancelling the candidature of the applicant vide order dated 4.10.2016. Being aggrieved, the 4 OA 1423/2017 C-4/Item-78 applicant has filed the present OA seeking the following reliefs:
"i) To quash and set aside the Impugned Order dated 23.11.2016 being illegal and arbitrary.
ii) To direct the Respondents to declare the
Applicant as selected candidate for
appointment to the post of Warder in the office of DG of Prisons.
iii) To direct the Respondents to appoint the Applicant to the post of Warder with all consequential benefits.
iv) To allow the OA with cost."
3. Notices were issued to the respondents and they have filed their counter reply. Applicant chose not to file any rejoinder.
4. The applicant in his OA as well as through the averments by his counsel during arguments, has tendered the following grounds in support of the relief sought by him.
4.1 That the FSL vide letter dated 5.08.2015 has definitely affirmed that the specimen signatures and hand writing of the applicant did match with the signature and hand writing of the applicant in his answer sheets. Even the Finger Print Bureau has confirmed that the thumb impression marked Q-33 is identical with the specimen left thumb impression marked S-17 of the present applicant. The Bureau has further reported that the specimen left thumb marked S-14, S-15, S-16 and S-17 are inter-se identical, meaning these 5 OA 1423/2017 C-4/Item-78 are impressions of the same thumb of the same person. In view of the findings given by the Forensic Lab and the Finger Print Bureau, the respondents have erred in cancelling the candidature of the applicant vide order dated 4.10.2016 as well as debarring the present applicant for Post Code 13/08 for five years. The order dated 23.11.2016 (impugned order) suffers from lack of application of mind as it has not gone into the earlier order dated 27.09.2010 and 4.10.2016 by the competent authority. It has just reproduced the same grounds as given in the earlier orders. In absence of clear- cut and unambiguous findings by the Forensic Lab as well as the Finger Print Bureau, the respondents should not have cancelled the candidature of the present applicant as well as debarring him for Post Code 13/08 for next five years. The learned counsel for the applicant cites the report of the Forensic Lab dated 5.08.2015, which has categorically stated that:
"There is no divergence observed between the questioned and specimen writings and signature and the aforesaid similarities in the writing habit are significant and sufficient and cannot be attributed to accidental coincidence and when considered collectively they lead me to above said opinion."
4.2 The learned counsel for the applicant further avers that the order dated 27.09.2010 has been passed by the respondents without giving any opportunity of being heard to the applicant. The said report is based on the report of 6 OA 1423/2017 C-4/Item-78 the Committee which was not competent to give opinion regarding matching of hand writing as no hand writing expert was part of the said Committee. Furthermore, the Committee did not call the present applicant to appear before the said Committee. As the applicant was not given any opportunity to defend himself, the findings of the said Committee based on which the order dated 27.09.2010 was passed, are defective on account of violation of principles of natural justice.
5. Per contra, the learned counsel for the respondents refers to the counter affidavit filed by the respondents. He states that the order dated 23.11.2016 is a reasoned and speaking order giving the detailed analysis of the Finger Print Bureau which is an expert body. Learned counsel for the respondents refers to the report of the FSL dated 5.08.2015 and has admitted that the said report has given the opinion that the hand writing and signatures on the answer sheets and admit card are matching with the samples taken from S-1 to S-13. However, the FSL did not express any opinion on the rest of the items regarding thumb impression etc. on the basis of material at their disposal. Hence, it cannot be said that the FSL has given an unambiguous finding regarding the identity of the candidate who appeared for answering for Post Code 13/08 by the name of Shri Gaurav Dabas, the present applicant. 7 OA 1423/2017 C-4/Item-78 5.1 The respondents referred the matter to the Finger Print Bureau and the Bureau vide its report dated 20.10.2016 has given the following report:
"1. Questioned thumb impression marked Q-33 (Questioned thumb impression on Original Admit Card exam held on 14.11.2009 issued in the name of candidate Gaurav Dabas Roll No. 01313221) is IDENTICAL with left thumb impression marked S-17 on the specimen left thumb impression slip of Gaurav Dabas.
2. Specimen left thumb impressions marked S-14, S-15, S- 16 and S-17 are inter-se IDENTICAL means these are impression of the same thumb of the same person.
3. Questioned thumb impressions marked Q-31 (Questioned thumb impression answer Book No. 516221 in descriptive the name of candidate Gaurav Dabas Roll No. 01313221), Q - 32 (Questioned thumb impression on Original Admit Card exam held on 14.11.2009 issued in the name of candidate Gaurav Dabas Roll No. 01313221) and Q-34 (Questioned thumb impression on Original Admit Card exam held on 22.02.2010 issued in the name of candidate Gaurav Dabas Roll No.01313221) faint blurred and are either do not disclose sufficient number of ridge details, hence these are UNFIT for comparison and opinion cannot be given regarding these Questioned prints."
5.2 Learned counsel for the respondents states that from the plain reading of the report of the Finger Print Bureau, it is confirmed that only questioned thumb impression marked Q-33 i.e. questioned thumb impression on original admit card is identical with left thumb impression marked S-17 on the specimen left thumb impression slip of Gaurav Dabas. However, the Finger Print Bureau could not confirm that the thumb impressions on Q-31, Q-32 and Q-34 are of the same candidate. He states that Q-31 is the thumb impression of the candidate on the descriptive answer book no.516221 in the name of the candidate Gaurav Dabas, roll no.01313221, 8 OA 1423/2017 C-4/Item-78 whereas Q-32 and Q-34 are the thumb impressions on the two Admit Cards for tests on 14.11.2009 and 22.02.2010 respectively. In addition to the inconclusive finding of the Finger Print Bureau, all other relevant evidence in the matter was also considered in the case of the present applicant. Some of the thumb impressions of Gaurav Dabas are either faint or blurred and did not disclose sufficient number of ridge details making such thumb impressions unfit for comparison. In view of this, the Finger Print Bureau has given the finding that they cannot give any opinion on such prints.
5.3 The respondents found that the candidate Gaurav Dabas had deliberately laid thumb impression on his original admit card for physical endurance test on 22.02.2010 in a smudged manner. Accordingly, the Finger Print Bureau could not decipher the same. In view of the aforementioned facts and circumstances, the respondents could not operate the principle of granting (benefit of doubt) to the present applicant. Under these circumstances, there was a significant doubt regarding impersonation in the name of the present applicant during the process of the examination. Thus, the respondents had no other option but to cancel the candidature of the present applicant vide order dated 4.10.2016. The detailed, reasoned and speaking order dated 23.11.2016 (impugned order) has also upheld 9 OA 1423/2017 C-4/Item-78 the earlier decision of the respondents dated 27.09.2010 debarring the present applicant for Post Code 13/08 as well as cancellation of the selection of the candidature of the present applicant vide order dated 4.10.2016. Learned counsel for the respondents states that there was no violation of the principle of natural justice and there is no irregularity in the said order dated 23.11.2016.
6. We have heard both the counsels carefully and have gone through the record of the case thoroughly. 6.1 In the instant case, the respondent-DSSSB has rescinded the candidature of the present applicant based on the principle that there was reasonable doubt regarding the authenticity of the person who appeared as Gaurav Dabas (in the name of the present applicant) during the said examination for Post Code 13/08. The FSL has stated that the hand writing and signature of the candidate on the admit card and answer sheets is the same as the samples taken for their examination. However, they have not given a clear-cut finding regarding other aspects like thumb impression etc. The Finger Print Bureau has also not given a clear-cut finding regarding all the specimens from the admit card and answer sheets compared with the specimens taken from the applicant. They have categorically stated 10 OA 1423/2017 C-4/Item-78 that:
"3. Questioned thumb impressions marked Q-31 (Questioned thumb impression answer Book No. 516221 in descriptive the name of candidate Gaurav Dabas Roll No. 01313221), Q - 32 (Questioned thumb impression on Original Admit Card exam held on 14.11.2009 issued in the name of candidate Gaurav Dabas Roll No. 01313221) and Q-34 (Questioned thumb impression on Original Admit Card exam held on 22.02.2010 issued in the name of candidate Gaurav Dabas Roll No.01313221) faint blurred and are either do not disclose sufficient number of ridge details, hence these are UNFIT for comparison and opinion cannot be given regarding these Questioned prints."
6.2 Out of the four thumb impressions, the Finger Print Bureau has matched only one thumb impression whereas they have not matched three thumb impressions categorically with the sample thumb impressions because the questioned thumb impressions are either faint or blurred and did not disclose sufficient number of ridge details making them unfit for comparison. This has led to reasonable doubt by the concerned authorities amongst the respondents to doubt the authenticity of the person who appeared in the name of the present applicant, Shri Gaurav Dabas. Taking the facts and circumstances of the case as reported during the process of examination, the competent authority amongst the respondents has taken a view that there is sufficient doubt regarding the authenticity of the person who appeared in the name of Shri Gaurav Dabas, the present applicant.
11OA 1423/2017 C-4/Item-78 6.3 Learned counsel for the respondents has fairly argued that the principle of benefit of doubt cannot be given to the candidate in the matter of public appointment. In such matters, it is not like a trial in criminal proceedings where a person is not convicted unless there is clinching evidence which is beyond reasonable doubt. In service matters like this, the principle of preponderance of evidence holds. The benefit of doubt cannot be given to such doubtful cases because it will violate the transparency and propriety in public appointments. To inspire confidence in the system of examination, the respondents have to take strict action when there are deviations from the detailed instructions given in the advertisement and the admit card. The candidates who appear in such examination are supposed to paste neat and clean picture and put neat and clean signature and thumb impression at the relevant places. In the instant case, the Finger Print Bureau has held that in three out of four questioned thumb impressions, the thumb impressions are either faint or blurred and did not disclose sufficient number of ridge details and they have not expressed any opinion because of inadequate details. The Apex Court in Secretary, Tamil Nadu Public Service Commission Vs. A.B. Natarajan and others, (2014) 14 SCC 95 while dealing with a situation where serious irregularities had been committed by a large number of candidates by 12 OA 1423/2017 C-4/Item-78 using different inks and different colour pencils in their answer sheets held that the candidates had not acted in bonafide manner. In the instant case, the respondents have rejected the candidature of 56 candidates due to doubt regarding their genuineness. The respondents have relied on the report of the Finger Print Bureau as well as other facts and circumstances relating to the process of conducting the examination before taking the decision by the impugned order.
6.4 In a judicial review of administrative action, there is hardly any scope for re-appreciation of evidence submitted to the respondents who are competent to take a decision in this regard. This Tribunal cannot substitute its own opinion and finding in contravention to the expert opinion given by the Finger Print Bureau and the decision taken by the competent authority amongst the respondents. The ratio of the judgment in B.C. Chaturvedi Vs. Union of India and ors., 1995 (6) SCC 749 in the case of disciplinary proceedings, has lot of significance for any judicial review. In the cited case, the Hon'ble Apex Court held that:
"Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of 13 OA 1423/2017 C-4/Item-78 natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplіnary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India Vs H.C. Goel (1964) 4 SCR 781), this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, in perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
6.5 Though the decision of the Hon'ble Apex Court in B.C. Chaturvedi (supra) is related to disciplinary cases, the ratio of the judgment can be equally applicable in the instant case as the Tribunal is looking into judicial review of an administrative action in the matter of public appointment. The competent authority amongst the respondents has taken an appropriate decision regarding the candidature of the present applicant.
14OA 1423/2017 C-4/Item-78 6.6 In the instant case, there is no allegation of violation of competency or non-application of mind. There is no procedural irregularity nor there is allegation of incompetence of the authority who has passed the impugned order. The impugned order is a reasoned and speaking order and it does not suffer from any irregularity.
7. In view of the above, the OA lacks merit and hence dismissed. No order as to costs.
(Dr. Chhabilendra Roul) (Manish Garg)
Member (A) Member (J)
/dkm/