Central Administrative Tribunal - Chandigarh
Jagdeep Singh S/O Sh. Jasvir Singh vs Union Of India on 25 January, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
OA No. 060/00714/2015
Order reserved on : 20.01.2017
Order pronounced on : 25.01.2017
CORAM: HONBLE MR.JUSTICE M.S. SULLAR, MEMBER(J)
HONBLE MRS.RAJWANT SANDHU,MEMBER(A)
1. Jagdeep Singh S/o Sh. Jasvir Singh, aged 22 years, R/o Village Dharamgarh, P.O. Bhedwal, Teh. Rajpura, District Patiala (Punjab).
2. Sukhpreet Singh S/o Sh. Rattan Singh, aged 23 years, R/o Village Jogowal Jattan, District Gurdaspur, Punjab.
3. Vivek Kumar S/o Sh. Suresh Kumar, aged 19 years, R/o H. No. 4244-B, Sector 46-D, Chandigarh.
4. Kanwardeep Singh S/o Jagtar Singh, aged 22 years, R/o House No. 566, Sector 48-A, Chandigarh.
..................Applicants
Versus
1. Union of India, through the Secretary, Government of India, Ministry of Home Affairs, New Delhi.
2. Advisor to Administrator, UT Chandigarh, Chandigarh.
3. Home Secretary, 4th Floor, UT Secretariat, Sector 9, Chandigarh.
4. Inspector General of Police, Union Territory, Chandigarh, Chandigarh police Headquarters, Additional Deluxe Building, Sector 9-D, Chandigarh.
5. Senior Superintendent of Police, Union Territory, Chandigarh, Chandigarh Police Headquarters, Additional Deluxe Building, Sector 9-D, Chandigarh.
.............Respondents
Present: Mr. Rohit Seth, counsel for the applicant
Mr. Arvind Moudgil, counsel for the respondents
ORDER
HONBLE MRS. RAJWANT SANDHU, MEMBER(A):-
1. The present OA has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief(s):-
(i) Quash Inquiry Report (Annexure A-16) by respondent No. 3 to the extent that despite the findings given with regard to the serious irregularities and illegalities in the selection process by violating criteria laid down in Standing Rules and Order No. 39/2009, directions have been given to follow the statutory requirements in future selections rather than implementing the findings in the present selection process itself where the violations have been found.
(ii) Direct the respondents to scrap the entire selection process in view of the serious deviations from laid down procedure for requirement, illegalities, irregularities, adoption of unfair procedure, deprivation of number of candidates to participate in the selection process, manipulation and tinkering which has come out in the inquiry report and conduct the entire selection for the post of Constable (Wireless Operator) from the scratch by ensuring fairness of procedure and while abiding by the provisions of Article 14 and 16 of the Constitution of India.
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2. It is stated in the OA that the respondents had advertised 35 posts of Constable (Wireless Operator) vide advertisement dated July, 2014 (Annexure A-1). Applicants being eligible applied for the post of Constable (Wireless Operator). Applicants No. 1 to 3 applied against General Category post and applicant No. 4 applied against the OBC Category post. The selection was governed by SRO 39/2009 which prescribes the entire process, terms and conditions. The applicants appeared and qualified the physical efficiency and physical measurement tests conducted by the respondents between 08.12.2014 to 12.12.2014 vide schedule dated 26.11.2014 (Annexure A-3). Applicants appeared in the written test held on 01.03.2015. Without declaration of marks, candidates were declared passed vide letter dated 04.03.2015 (Annexure A-4) and candidates were directly called for interview on 17-18.03.2015. Further in the list of candidates (Annexure A-5 colly) called for interview, OBC candidates were called against General Category posts.
3. It is further stated that the applicants No. 1 and 2 submitted online representation to the Inspector General of Police, UT, Chandigarh, through ICLIK on 08.03.2015 (Annexure A-6) highlighting their grievances with regard to the manner in which selection process was being carried on, but to no effect. Many other persons also submitted their representations. Representations were also submitted to other quarters.
4. It is also stated that the applicants along with two more candidates filed OA No. 060/00222/2015 on 13.03.2015 alleging violation of criteria/procedure for selection to the post of Wireless Operators in UT Police in terms of SRO No. 39/2009 and serious irregularities in the conduct of the selection process which would vitiate the selection process itself. During the pendency of the OA, the respondent No. 5 rejected the representations of applicants, with approval of respondent No. 4, vide letter dated 23.03.2015 (Annexure A-13). Accordingly, the OA was amended and the amendment was allowed by this Tribunal. The OA of the applicants was disposed of by the Division Bench of this Tribunal vide order dated 30.04.2015 (Annexure A-14). Following is the extract of the order passed:-
5. Nemo agit in seipsum, i.e. no man acts against himself; therefore, a man cannot be judge and a party in his own cause. There has not been any independent inquiry into the allegations of irregularities and malpractices in the conduct of the aforesaid exam. We, therefore, are of the view that the OA should be disposed of with direction to the respondent No. 4 to hold an independent inquiry into the matter. The exercise shall be completed within one month from the date of receipt of a copy of this order. Result shall continue to be in abeyance.
The O.A. is disposed of in the above terms. No order as to costs. Since nothing was being done by the respondents, applicants filed Execution Application No. 060/00633/2015 on 29.06.2015 seeking compliance of the order dated 29.04.2015. On 03.08.2015, the Execution Application of applicants was dismissed vide order dated 03.08.2015 (Annexure A-15) as having been satisfied on statement of counsel for respondents based upon his instructions from office of respondent No. 4 to the effect that they have already complied with the directions of this Tribunal as he has received instruction from office of Home Secretary, U.T. Chandigarh. Immediately thereafter on 05.08/2015, the applicants filed MA No. 060/00822/2015 seeking revival of execution application along with the report. Copy of the Inquiry Report is annexed (Annexure A-16). It was prayed that respondents may be called upon to place on record order based upon the findings given in the Inquiry Report. The application was dismissed vide order dated 07.08.2015 (Annexure A-17). Applicants approached the Honble High Court against the order of closure of execution application filed by them by filing CWP No. 16767-CAT-2015 which was dismissed as withdrawn on 14.08.2015.
5. In the grounds for relief, it has, interalia, been stated as follows:-
(i) The Supreme Court in Union of India and Others Vs. Anand Kumar Pandey and Others, 1994(4) SCT 7, Pritpal Singh Vs. State of Haryana and Ors., 1994(4) SCT 591, Hanuman Parshad and Ors. Vs. UOI & Anr., 1996(4) SCT 608, B. Ramjini and Ors. Vs. State of Andhra Pradesh, 2002(2) SCT 1049 and UOI Vs. O. Chakradhar, 2002 (2) SCT 176, has consistently held that if a selection process is vitiated on account of non-following the procedure for selection, smacks of mala fide and malpractices, the rules of natural justice are not required to be followed. Even if some deserving candidates suffer on account of cancellation of such selection, the decision cannot be regarded as arbitrary or unreasonable. In the case of R. Radhakrishen & Ors. Vs. Osmania University & Ors., AIR 1974 AP 283, where the entire entrance examination was cancelled by the University because of mass copying, the Court held that notice and hearing to all candidates is not possible in such a situation, which has assumed national proportions. Every exception is to be admissible, taking into consideration the facts and circumstances of each case and to ensure fairness of procedure.
(ii) The following facts are evident from the record as on date:-
(a) The fact of non-scrutiny of application forms in terms of Clause 7(vii) of SRO 39/2009 till the stage of interview has been admitted by the respondents in order dated 23.03.2015 as well as in the written statement filed by respondents in the earlier O.A. of the applicants.
(b) The respondents in their pleadings, in order dated 23.03.2015 as well as in the report have not denied the fact that the timing of the written test to be held on 01.03.2015, which was to be relied upon by the candidates in terms of stipulation in admit card (Annexure A-18), was displayed on the official website as 10:30 AM from 26.02.2015 to 28.02.2015.
(c) The respondents in order dated 23.03.2015, in their written statement in earlier OA as well as in the report have admitted that the videography of the entire written test from beginning to end was not done in terms of requirement of Clause 7(viii) of SRO No. 39/2009 or that they can produce the same.
(d) That zeroed upon candidates have not undertaken the written exam without help of staff or other candidates, they were resorting to unfair means, were going to toilets in groups and standing within the premises after written tests to help others.
(e) The respondents in order dated 23.03.2015, in their written statement in earlier OA as well as in the report have not denied that only the roll numbers of candidates who had passed written test were displayed and not the marks obtained by them while calling them for interview in the same declaration letter dated 04.03.2015 (Annexure A-4).
(f) The respondents in order dated 23.03.2015, in their written statement in earlier OA as well as in the report, have admitted calling OBC candidates for interview against General Category candidates.
(g) In the report, it has been admitted that the non-OBC Category candidates belonging to JAT category were made eligible under OBC Category illegally.
6. MA No. 060/01058/2015 was filed on behalf of the applicants seeking to place some additional documents Annexures MA-1 and MA-2 on the record.
7. In the written statement filed on behalf of respondents, it has been stated that the candidates were advised to go through the guidelines/instructions for filing the application forms (online) as well as standing order No. 39/2009 governing the recruitment of Constable (Wireless Operator) in Chandigarh Police containing detailed criteria/eligibility conditions, etc. which are available on the Chandigarh Police website w.w.w.chandigarhpolice.nic.in. 12908 candidates applied against the 35 advertised posts including the applicants. 3032 candidates qualified the Physical Efficiency & Measurement Test held from 08.12.2014 to 12.12.2014.
8. The time of the written examination as reflected on the official website on/before 18.02.2015 was 10.30 AM. However, in view of the difficulties faced by the department on 17.02.2015 during the written test of Constable (SC category) for 94 posts, when candidates were called to report for written test at 10.30 AM but the matching of biometrics and guiding the candidates to sit in their respective rows and seats had taken time, the exam was only started at about 2.00 PM, it was decided on 18.02.2015 to change the time from 10.30 AM to 7.30 AM so that the exam could be started well in time. This change of time was uploaded on the official website of Chandigarh Police on the same day in the evening. In order to ensure that the change of timing is conveyed to the each candidate, speed post letters were sent to each candidate on 21.02.2015 which was followed by SMS to the candidates on their pre-disclosed mobile number on their application forms on 25.02.2015. The delivery of SMS has been confirmed by the vendor as per Log. Accordingly, 2807 candidates including the applicants appeared in the written test on time which indicates the successful communication to the candidates for change of timing. No complaint was received from any candidate including the applicants regarding bad weather conditions on the date of examination or immediately after the exam. The weather on the date of examination was cloudy but there was no rain. The written examination was conducted smoothly. There was proper management for conducting the exam and adequate staff was deployed for invigilation including 32 invigilators engaged from the Education Department. In addition to the 32 invigilators, 4 DSPs, 6 Inspectors and about 100 officials from Chandigarh Police were also deployed. Proper videography was done as per the applicable guidelines/rules and sufficient number of videographers were present for the videography of the event.
9. It is also stated that the scrutiny of the forms was done properly before the interview and candidature of five candidates was cancelled on account of wrong particulars in their application forms. According to advertisement, there were seven vacancies for General male candidates. As per standing orders of recruitment twice + 4 candidates for the advertised vacancies are to be called for interview, which was done by the Board. The respondent department called 18 candidates for interview. On the basis of merit achieved by the first 18 candidates, the marks secured by the OBC/SC candidates were more than last candidate of General Category. Therefore, OBC/SC male candidates have been included in the list of General male candidates by the Board. Further, there was also tie of marks with last three candidates. Therefore, three more candidates have been included in the list. The Board has given due consideration to the candidates who have achieved merit irrespective of their category.
10. It has also been stated that the applicants were not selected to appear in the interview for the post of Constable (Wireless Operator) and have filed the present OA by leveling vague and baseless allegations and facts which are not sustainable in the eyes of law and hence, the OA deserves to be dismissed. Reference has been also made to the following judgements:-
(i) 2012(4) SCT 328, Simranjit Singh Tiwana Vs. Stte of Punjab & Ors.
(ii) Subhashis Das Vs. W.B. State University of Health Sciences (Calcutta), 2012 (1) SCT 175.
(iii) Chandra Prakash Tiwari Vs. Shankuntla Shukla, 2002 (2) Vol. 2, SCT 1093.
(iv) K.A. Nagamani Vs. Indian Airlines and Ors., 2009 (5) SCC 515
(v) Madan Lal and Ors. Vs. Stte of J&K & Ors., 1995(3) SCC 486.
(vi) Dhanjay Malik & Ors. Vs. State of Uttaranchal & Ors., 2008 (4) SCC 151
(vii) Om Prakash Shukla Vs. Akhilesh Kumar Shukla & Ors., 1986 AIR (SC) 1043.
(viii) Union of India Vs. N. Chandrasekharan, 1998 (1) SCT 631
(ix) Utkal University etc. Vs. Dr. Nrusingha Charan Sarangi, 1999 (1) SCT 656
11. Arguments advanced by learned counsel for the parties were heard when learned counsel for the applicant narrated at great length the background of the matter. He stated that the conduct of the written examination was vitiated on account of rampant cheating as could be seen from the documents annexed with MA No. 060/01058/2015 which also showed that the examinees were chatting amongst themselves. Some were gathered together and were also perhaps being assisted by the invigilators. Learned counsel also stated that the respondents had wrongly prepared the lists for interview as some candidates belonging to JAT community had been called for interview as OBC candidates although JAT was not recognized as OBC. Moreover, excessive number of OBC candidates had been called for the interview and some General Category candidates left out on this account on the specious plea that these OBCs had higher marks in the written test than did the General Category candidates and hence they were being called for interview on their own merit against General Category vacancies. Learned counsel also stated that from the comments on the Inquiry Report that had been annexed as Annexure A-16, it was apparent that action to rectify the anomalies in the selection of Constables (Wireless) were to be given effect for future selections while the present selection had been allowed to be finalized although the same was marred by irregularities.
12. Learned counsel for the respondents stated that on the basis of the inquiry conducted by Additional Secretary (Home) and accepted by the Home Secretary, Chandigarh Administration and the directions issued to the IG (Chandigarh) accordingly, the select list of Constables (Wireless) had been rectified. Persons from the JAT community had not been included as OBC candidates. Learned counsel later conveyed that the Inquiry Report was signed by Special Secretary (Home) on 13.07.2015. Letter dated 03.08.2015 was issued by the Home Department to the IGP. On 08.09.2015, the revised merit list of the candidates was prepared and final selection list was issued vide No. 40075/UT/EII dated 18.09.2015. The learned counsel stated that recommendations from the Home Department had been accepted and the selection list of Constables (Wireless) had been prepared accordingly. He also stated that from the Annexures with MA No. 060/01058/2015, it could not be concluded that the written test had been vitiated. The issues such as bad weather and change in timings for the candidates to appear for the written test were of no relevance as the applicants had managed to appear in the written test and there was no point in raising these issues at this stage. He pressed therefore that OA be dismissed also keeping in view the fact that the selected candidates had joined at their respective places of postings and had undergone the necessary training.
13. We have given our careful consideration to the matter and our views are recorded regarding the main grounds taken in the OA. From the perusal of the documents attached with MA No. 060/01058/2015 filed on behalf of the applicants, though it does appear that some of the participants in the written test held on 01.03.2015 were not behaving in an orderly manner, but, it cannot be conclusively held that the written test was marred by cheating on the part of the examinees and that the police officials on duty assisted some of the examinees. About the timing of the written test and arrangements for the same, the issue need not be re-opened as the applicants had participated in the written examination. Also, it is the usual practice not to declare the marks in the written test in respect of the applicants who have qualified for the interview and the break-up of marks in the written test and interview as well as the aggregation is released only at the conclusion of the selection.
14. Regarding the aspect that non-OBC category candidates belonging to the JAT category were made eligible under the OBC category, the related note sheet of the file of the Police Department has been perused. From the same, it is seen that after the recommendations of the Home Department on the independent inquiry held by the Special Secretary (Home) as approved by the Home Secretary, were conveyed to the Police Department on 03.08.2015. A Board of four Officers of the Police Department headed by the SSP cum Chairman reviewed the whole selection on 08.09.2015 and the persons belonging to the JAT community who had wrongly been included in the OBC category, were treated as General Category candidates. Also, the candidates of the OBC category who had been included in the list of General Category candidates called for interview were shifted to their own list. This resulted in some of the candidates of the General and OBC categories being deleted from the lists of persons who had qualified for the interview and their being replaced by others who came into the list as per their merit in the written test. In respect of the persons who had been interviewed earlier and whose marks were in the sealed cover, the interviews were not conducted again, but those who came into the list subsequently after review of the list prepared earlier and who had not been interviewed earlier, were interviewed thereafter. The final select list of Constables (Wireless) was released on 18.09.2015 by the DIG, UT, Chandigarh.
15. From this narration, it is clear that the report of the Special Secretary (Home) and the recommendations of the Home Department regarding the selection of the Constables (Wireless) about the preparation of the select list have been acted upon and hence, there is no substantial ground to interfere with the selection which in any case should not be done lightly. Hence the OA is dismissed.
16. Before parting with this matter, we would, however, observe that the provisions of SRO No. 39/2009 have not been meticulously observed by the respondent Police Department. In order to ensure that future selections of Police personnel are not marred by allegations of misconduct of the same and misapplication of the rules/guidelines, adherence to SROs should be ensured by the superior officers of the Department.
(RAJWANT SANDHU) MEMBER (A) (JUSTICE M.S. SULLAR) MEMBER (J) Dated:
ND* 1 O.A. 060/00714/2015