Central Administrative Tribunal - Delhi
Dhirendra Jain vs Comm. Of Police on 19 September, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.449 of 2013
Orders reserved on : 13.9.2018
Orders pronounced on : 19.09.2018
Hon'ble Ms. Nita Chowdhury, Member (A)
Hon'ble Mr. S.N. Terdal, Member (J)
Sh. Dhirendra Jain
s/o Sh. Indra Sen Jain,
R/o Pocket F-194 D, MIG Flats,
G.T.B. Enclave, Delhi-110093.
....Applicant
(By Advocate : Shri Ajesh Luthra)
VERSUS
1. Commissioner of Police,
PHQ, MSO Building,
IP Estate, New Delhi.
2. Special Commissioner of Police,
Intelligence,
IP Estate, New Delhi.
3. Deputy Commissioner of Police,
Establishment
PHQ, MSO Building,
IP Estate, New Delhi.
.....Respondents
(By Advocate : Ms. Harvinder Oberoi for official respondents)
ORDER
Ms. Nita Chowdhury, Member (A):
In the instant OA, the applicant sought the following reliefs:-
"(a) quash and set aside the entire ongoing recruitment process to the post of ASI (Stenographer) in Delhi Police or 2 in the alternate quash and set aside the Stenographer/Skill test conducted on 3.12.2012 alongwith its results declared on 8.1.2013 for the post of ASI (Stenographer) in Delhi Police and
(b) direct the respondents to reconduct the Stenographer/Skill Test in a fair manner, thus providing a fair opportunity to the applicant and the like for being subjected to a fair examination and then to proceed further with the recruitment process
(c) award all consequential benefits, if any
(d) award costs of the proceedings and
(e) pass any other order/direction which this Hon'ble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case."
2. Brief facts of the case are that the applicant is a Head Constable (Ministerial) in Delhi Police and is posted in the office of Addln. CP/Central District.
2.1 According to the applicant, being fully eligible for the post of ASI (Stenographer), he applied in response to the employment notification issued by the respondents inviting applications for the posts of ASI (Stenographer) in Delhi Police-2010.
2.2 Upon qualifying the Physical Endurance and Measurement Test and after verification of documents, the candidates were subjected to a Written Test which was held on 15.1.2012.
32.3 The applicant being declared successful in the Written Test and thus eligible for the skill test, i.e., shorthand test, typing test on computer.
2.4 The said skill test was conducted in three batches and the applicant undertook the said skill test in third batch. According to the applicant he had done very well in the said skill test. However, when the result was declared on 8.1.2013, only seven candidates have been declared successful and qualified for appearing in computer formatting test, whose roll numbers are 800326, 800561, 800563, 800595, 800596, 800597 and 800598. According to the applicant, it is quite strange that out of 07 candidates declared as qualified are in a continued series, i.e., 800595 to 800598 and according to the applicant, the same can only be possible in an organized way. Moreover, all these candidates are departmental candidates and belong to the Ministerial Cadre of Delhi Police. 2.5 Applicant further averted that it came to his knowledge that the dictation in the third batch was the repetition of the matter already dictated in the last skill test conducted in the year 2007 for the post of ASI (Stenographer) in Delhi Police. The said dictation passage was already available with some of the candidates appearing in this test which they had got either through RTI or by other means. This is against the spirit of stenography that repeated matter was dictated in the 4 skill test whereas fresh matter should have been dictated to assess the stenography skills of the appearing candidates. 2.6 Applicant further stated that he has also reliably learnt that some of the candidates were aware of the fact that this particular matter would be dictated in the skill test. As such it is the reasonable apprehension that due to this prior knowledge of the candidates of third batch that out of seven passed candidates, five are from this batch alone while remaining two are from the second batch.
2.7 The applicant further averred that it is learnt that in the second batch, some of the candidates were found indulged in using unfair means by the supervisory officer Shri Vivek Kishore, DCP present in the test and against which, the supervisory officer had sent a report for taking action against those candidates.
2.8 Applicant further stated that the Institute which had been entrusted the task of conducting skill test had not conducted itself in a fair manner. It is for the first time that the department has got the test conducted from an outside agency, while previously, the tests were conducted by the department itself where fair norms of examination were strictly maintained.
2.9 Applicant further averred that answersheets were not got conducted from a recognized agency and the 5 answersheets were handed over to the person appointed for checking of these sheets, without any coding by the Secrecy Officer, which is highly unfair and vitiates the test. 2.10 Applicant further contended that none of the candidates declared successful in the skill test is from the outside and all the seven selected candidates are departmental only. 2.11 Aggrieved, the applicant submitted a representation dated 24.1.2013 (Annexure A/5) praying for cancellation of skill test and its result and praying for stopping of the future test till another skill test is ordered and further prayed that fresh skill test be got conducted through a Govt. recruiting agency like SSC etc. so that the recruitment is fair and deserving candidates like the applicant can be selected. 2.12 However, without even looking at the representation, the respondents have gone ahead with the further test, i.e., computer formatting test was to be held on 6.2.2013 which test shall conclude the recruitment process and results thereof shall determine the final selection. Hence, he filed the OA.
3. This Tribunal while issuing notices to the respondents, vide Order dated 5.2.2013, also passed interim order that "In the meanwhile, if any selection is made to the post of ASI Stenographer, Delhi Police, the respondents shall keep one post reserved during the pendency of the OA.
6
4. One of the candidates aspirant for the said posts, filed MA 1294/2013 on 14.5.2013 in which the said candidate mentioned that he along with other six more candidates qualified for the post of ASI (Stenographer) in Delhi Police (Annexure A-1 to the said MA). He further stated that the applicant in the OA could not qualify the test and started saying that other qualified candidates have cheated and already knew the matter dictated to them as according to the applicant in the OA, the matter dictated for the skill test of Stenographer (English) was the repetition of the matter dictated in 2007 test.
4.1 He further stated applicant in the OA has got interim order by this Tribunal vide Order dated 5.2.2013 vide which the respondents were directed to keep one post reserved during the pendency of the OA.
4.2 He further stated that from departmental sources it came to his knowledge that after the aforesaid interim order of this Tribunal, the Delhi Police has selected and proposed that all the qualified candidates would go on training from next month except the applicant in this MA as there were only five posts of un-reserved category, out of which four are already filled and one was reserved as per the aforesaid order of this Tribunal and the other two posts were given to two qualified candidates belong to OBC category. As such the applicant in the said MA is the only affected party by the 7 interim decision of this Tribunal and if he is not allowed to go for training, the same will severely prejudice his right. 4.3 In the aforesaid facts and circumstances, he pleaded that he should be impleaded in this case as party for proper adjudication of the matter in dispute as the applicant, who has filed the OA, has not even qualified the said test and failed and this OA has been filed with an object to get entry from back door and get another chance to qualify the test and there is no other candidate who came forward to raise such dispute.
5. The said MA 1294/2013, came up for consideration before this Tribunal on 16.5.2013 and this Tribunal allowed the said MA and permitted the applicant in the said MA to be impleaded as additional respondent in the array of parties of this case and the official respondents were directed to permit the applicant in this MA to permit him to undergo the training, provisionally and the interim order passed earlier was directed to be continued till further orders. In the said Order, the applicant in the OA was also directed to file amended memo of parties and furnish a copy of the OA to the learned counsel for the applicant in the MA. However, no such amended memo of parties has been filed by the applicant in the OA.
6. Pursuant to notice issued to the respondents, official as well as private respondents have filed their counter affidavits. 8 In the counter affidavit filed by the official respondents, the stated that as per the terms and conditions of the advertisement and Standing Order, all the candidates were required to undergo the following tests for the post of ASI (Stenographer)-English:-
(1) Physical Endurance & Measurement Qualifying nature Tests (PE&MT) (2) Written Test 100 marks (3) Skill Tests:- 50 marks
(i) Shorthand Test:- Minimum 80 Maximum Required words per minutes. 25 marks to qualify [Take dictation of shorthand passage both tests in English in 05 minutes and transcript the dictated shorthand passage in 45 minutes]
(ii) Typing Test:-Minimum speed of 40 Maximum words per minutes in 10 minutes 25 marks (4) Computer (Formatting) Test Qualifying nature 6.1 The official respondents further stated that after the written test, the said skill test was conducted by Shri Vivek Kishore, the then DCP/Traffic(NR) (now DCP/HQ), Delhi under the overall supervision of Shri A.K. Singh, Joint C.P./Planning & Implementation, Delhi, on 3.12.2012.
6.2 They further stated that for stenography test, six different sets of question papers were got prepared for three batches by an expert panelist of Staff Selection Commission. On the examination day, the question papers were randomly selected by the supervisory officer which were dictated then and there by the SSC Panelist Officer. This practice was followed batch-wise. The result of skill test was declared on 8.1.2013. The qualified candidates appeared in the computer 9 (formatting) test held on 6.2.2013 at PCTI, Pitampura, Delhi. All the 07 candidates were found qualified in the computer test. The final result (category and merit-wise) was prepared on the basis of marks obtained by the candidates in the written test (100 marks) and skill test-50 marks [shorthand test-25 marks + typing test-25] and the final result was declared on 12.4.2013.
6.3 In response to the said advertisement, the applicant also applied for the said post. The applicant qualified the PE&MT & written test and qualified for stenography skill test consisting of (i) shorthand test and (ii) typing test on computer. The candidates appeared in the skill test held on 3.12.2012 but failed to achieve minimum 80 words per minute speed in shorthand dictation test, therefore, he was not called for further test, i.e., computer (formatting test). 6.4 Aggrieved by not qualifying him in the skill test, the applicant submitted an application/representation dated 24.1.2013 alleging therein use of unfair means in the skill test and requesting to cancel the skill test and reorganize skill test.
6.5 In the meanwhile, the applicant filed the instance OA and this Tribunal vide Order dated 5.2.2013 while issuing notice to the respondents passed the aforesaid interim order. 10 6.6 The aforesaid representation/complaint of the applicant dated 24.1.2013 was examined and comments were obtained from the officers engaged by Police Headquarters in connection with conduct of the skill test. On the basis of the reports/comments, the complaint was found false/baseless and mere figment of imagination because he could not succeed in the test. Therefore, the request of the applicant was rejected and informed the applicant vide Memo dated 2.4.2013 (Annexure RII).
6.7 This Tribunal vide Order dated 5.2.2013 directed the respondents to keep one post reserved during the pendency of the OA, as the applicant belongs to UR category. Hence, 01 candidate of UR category available for selection has not been selected in pursuance of interim order dated 5.2.2013. 6.8 They further stated that as per the reports received from both the officers, who were involved in conducting the exam, no such incidence of using unfair means during the examination was noticed and no report was sent to police headquarters for taking action against the candidates. None of the candidates had prior knowledge about the passages to be dictated in a batch. The allegation the P.C. Training Insitutte, Pitampura, Delhi had not conducted the stenography skill test in a fair manner is absolutely baseless and false, as the said Institute is a computer institute and was selected mainly for providing sufficient number of 11 computers for transcription of the passage in computer (MS- Notepad) and typing test on computer (MS-Notepad) along with other infrastructure for smooth conduct of the tests. Other than these, the said Institute has no role/interference in the conduction of the skill test.
6.9 They further stated that for preparation of question paper skill test, dictation of passage for stenography test and evaluation of the answer sheets of the candidates, an expert, who is in the panel of the Staff Selection Commission, New Delhi, was engaged by the Delhi Police. It was considered not necessary to nominate Secrecy Officer for coding/de-coding of the answersheets of the skill test as the print-out of the answer sheets (transcription done by the candidates) was containing name and roll number of the candidates which was signed by the candidate, invigilators, technical staff and an ACP. It was done so that candidates at later stage may get photocopy of their answersheets through RTI, if required. Hence, the skill test was done in a very fair and transparent manner. None of the candidates of open market could qualify the said test.
7. Respondent no.4, who was impleaded in this case, has also filed his reply in which he has stated that it is irrelevant whether the dictation was repeated or not, what is important is that the applicant has failed in passing the test. 12 7.1 Respondent no.4 denied that any report of inquiry against the supervisory officer Shri Vivek Kishore, DCP was sent to the Police Headquarter. He further stated that there was neither any incidence of using unfair means nor some of the candidates had prior knowledge of dictation. The said outside agency was only involved to provide necessary infrastructure for test. Further if the applicant has any grievance against the recognized agency conducting/evaluating the answersheet then he would have protested there and then not after he was declared failed in the same examination.
8. The applicant has filed his rejoinder to the reply filed by official respondents in which he reiterated his earlier contentions.
8.1 In the rejoinder, it is further stated that as per the reply received against a RTI application (Annexure X-2), Delhi Police has admitted that two persons were given the copy of this passage, which earlier was used in the 2007 exam.
9. During the course of hearing, learned counsel for the applicant argued that respondents have not conducted the said skill test in accordance with the rules, as the respondents have not adopted the true and fair means to conduct the same test. Learned counsel for the applicant also reiterated the averments made in the OA. 13
10. Counsel for the official respondents has denied the alleged malafide in conducting the said examination and has emphasized that now a day's candidates preparing for exams, routinely have practice on all question papers of earlier exams. And there is no irregularity if candidates did the same in preparation for this exam.
10.1 Counsel for the official respondents further submitted that applicant is also one of the departmental candidates in the said examination. The applicant's allegation that because the said selected candidates from the Ministerial cadre, therefore, they were selected is also baseless as the test was conducted by the official respondents having regard to the rules and procedures on the subject and there was no complaint of using any unfair means in any of the batches which was required to be inquired into. Counsel further submitted that there is no bar in using a passage which was used in any pervious examination. So far as issuance of copy of the said examination of 2007 is concerned, she submitted that everybody is free to take a copy of the same or any other examination under the RTI. If the applicant had applied for the same or any other exam(s) passage, if available with the respondents, the same would have been given to him under RTI Act also.
10.2 Counsel further submitted that when the applicant was declared successful in PE&MT and written test, he has not 14 made any allegations of bias and malafide but when he was declared unsuccessful in skill test, he started raising allegations of use of unfair means and malafide and even alleged that the whole process is vitiated. Nevertheless, the complaint submitted by the applicant was duly examined by the respondents and after obtaining the comments of the concerned officials, the complaint of the applicant was rejected by the competent authority. She also submitted that there is catena of judgments of the Hon'ble Courts that once a candidate participated in the selection and declared unsuccessful, he cannot be permitted to agitate that the selection was wrong and not done in accordance the rules and procedures on the subject.
11. We have heard learned counsel for the parties and have perused the material placed on record.
12. After giving thoughtful consideration to the submissions of learned counsel for the parties, we are unable to accept the contentions raised by the learned counsel for the applicant in view of categorical and detailed reply given by the official respondents. So far as the allegation of the applicant that all the departmental candidates were selected and not a single open market candidate was selected is concerned, the same is not acceptable as no open market candidate has filed any application or complaint or even the applicant has not 15 brought on record that any open market candidate has alleged any bias or illegally in the said skill test examination.
13. So far as the applicant's contention that same passage of 2007 was repeated in the skill test is concerned, the same is also not a sustainable argument as there is no bar that the same passage/questions cannot be used in subsequent examination.
14. So far as the allegation of the applicant that he has reliably learnt that some of the candidates were aware of the fact that the particular passage would be dictated in the skill test, the same is not substantiated by him as is just a bald statement which the applicant has raised after being declared unsuccessful in the said skill test.
15. So far as allegation of the applicant that in the second batch, some of the candidates were found indulged in using unfair means by the supervisory officer Shri Vivek Kishore, DCP present in the test and after this, the supervisory officer had sent a report for taking action against those candidates is concerned, the respondents have categorically stated in their reply that neither any such complaint was received nor any such report was sent for any further action in the matter. As such this allegation is not found to be based on facts.
16. So far the allegation of the applicant that private institute was selected for conducting this test instead of 16 hiring the services of SSC/Ed.CIL/DSSSB or such other Govt. agency is concerned, the same is not acceptable in view of the fact that it is within the domain of the administration of the official respondents to decide which agency they would like to use for conducting the exam. Moreover, the respondents have quite clearly stated that as the said Institute was engaged by the official respondents to provide certain facilities which are essential for conducting the said skill test and for stenography test, six different sets of question papers were got prepared for three batches by an expert panelist of Staff Selection Commission. On the examination day, the question papers were randomly selected by the supervisory officer, which were dictated then and there by the SSC Panelist Officer. This practice was followed batch-wise. As such this allegation is also not sustainable.
17. The main ground urged on behalf of the respondent is that applicant having taken part in the selection process could not be permitted to challenge the same after he was unsuccessful in getting selected.
18. The law is well settled that once a person takes part in the process of selection and is not found fit for appointment, the said person is estopped from challenging the process of selection. In the case of Dr. G. Sarna vs. University of Lucknow & Ors., (1976) 3 SCC 585, the petitioner after appearing in the interview for the post of Professor and having 17 not been selected pleaded that the experts were biased. The Hon'ble Apex Court did not permit the petitioner to raise this issue and held as follows :-
"15.We do not, however, consider it necessary in the present case to get into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee......"
18.1 In Madan Lal & Ors. vs. State of J&K & Ors., (1995) 3 SCC 486, the petitioners laid challenge to the manner and method of conducting viva-voce test after they had appeared in the same and were unsuccessful. The Hon'ble Apex Court held as follows :-
"9.......Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process ofinterview was unfair or Selection Committee was not properly constituted......"18
18.2 In Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576, the Hon'ble Apex Court held as follows :-
"23.......Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."
18.3 In the case of Ramesh Chandra Shah and others vs. Anil Joshi and others, (2013) 11 SCC 309, the petitioners took part in the process of selection made under the general Rules. Having appeared in the interview and not being successful they challenged the method of recruitment itself. They were not permitted to raise such an objection. The Hon'ble Apex Court held as follows :-
"24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."19
18.4 Same view has been taken by the Hon'ble Apex Court in Madras Institute of Development Studies and Another vs. Dr. K. Sivasubramaniyan and others, (2016) 1 SCC 4545.
19. In the result and for the foregoing reasons, the instant OA being devoid of merit is dismissed. The interim order passed on 5.2.2013 stands vacated. There shall be no order as to costs.
(S.N. Terdal) (Nita Chowdhury) Member (J) Member (A) /ravi/