Rajasthan High Court - Jaipur
Sanjeev Kumar Saini. vs Union Of India & Another. on 15 May, 2015
Author: Ajay Rastogi
Bench: Ajay Rastogi
IN THE HIGH COURT OF JUDICIATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR D.B.Civil Writ Petition No.11263/2014. Sanjeev Kumar Saini. VERSUS Union of India & Another. Judgment reserved on : 15th April, 2015. Date of Judgment : 15th May, 2015. PRESENT HONBLE MR.JUSTICE AJAY RASTOGI HONBLE MR.JUSTICE J.K.RANKA Mr.Vikas Kabra, Counsel for petitioner. Mr.Aslam Khan, Counsel for respondent-UOI. ***** BY THE COURT (Per Honble Mr.Ajay Rastogi,J):
Instant petition is directed against order of the ld.Central Administrative Tribunal dt.09.07.2014.
Brief facts of the case which emerge from the record are that the petitioner belongs to OBC Category and the North-Western Railway issued employment notice No.2/2010 dt.16.12.2010 for recruitment against Group 'D' post in various categories. In pursuance of employment notice, the petitioner applied for the Group 'D' post and he was declared successful in the written examination held on 06.05.2012 and thereafter called upon to appear in Physical Efficiency Test (PET) and thereafter for verification of documents on 06.05.2012, 15.10.2012 & 23.01.2013 and finally qualified for appointment for the post in Group 'D' but the appointment was not offered to him and at the same time, he was never informed regarding shortcoming, if any and when he personally met the concerned authority to know for his appointment which has been withheld by the respondent-authorities, at that stage, it came to his notice that there is some shortcoming in his OMR Sheet and for this reason his appointment has been cancelled but it was never informed to him in writing about the nature of shortcoming. Indisputably, the candidates in OBC Category who have secured less marks than the petitioner have been offered appointment and at this stage when no other option was left with him, he approached the ld.Tribunal by filing of the Original Application.
In response to his Original Application, reply was filed by the respondents and it is averred that after the petitioner was called for written examination held on 06.05.2012, he was declared successful and was called for physical examination on 15.10.2012 and after he qualified in the Physical Efficiency Test (PET), he was called by the Railway Recruitment Cell for verification of documents & attendance sheet and at this stage it was revealed that he has not signed the OMR Sheet in the requisite columns in Hindi or in English and as per the guidelines of the advertisement Cl.8.11(xvi), in particular, wherein it was categorically mentioned that due to any other deemed irregularity, if revealed at a later stage, the application form of the incumbent be declared invalid and since the petitioner has not signed the OMR Sheet in the requisite columns, as prescribed, his candidature was rejected and the same has been communicated to him vide letter dt.25.07.2013.
It is further averred by the respondents that as per the directions in Column-15 of the call letter for written examination, it is clearly mentioned that the call letter is only a permission to appear in the written examination and it does not in any way indicate that the Railway Recruitment Cell has been otherwise satisfied with the application form, details and documents of the candidate or entitle the candidate to any appointment whatsoever on the Railways. The Column-8.11 (Invalid applications) of the conditions of advertisement, relevant for the present purpose, is reproduced ad infra:-
8.11 INVALID APPLICATIONS:
The applications having any of the following deficiencies, discrepancies or irregularities will be summarily rejected:-
(i) Applications not submitted in prescribed format as given in this employment notice.
(ii) Incomplete or illegible applications, or applications not filled with black ink/black ball point pen, or applications with overwriting, cutting or erasing marks.
(iii) Unsigned/undated applications/applications without clear and un-smudged thumb impressions and/or without Marks of Identification.
(iv) Without photograph or affixing/attaching Xerox copy of Photograph.
(v) Without Bank Draft/Postal Orders/Pay Orders of requisite value and validity.
(vi) Applications not filled in English or Hindi or not filled by candidate in his own hand writing.
(vii) Applications without para written in candidate's own handwriting.
(viii) Without proper certificates, in respect of SC/ST/OBC and/or Physically Handicapped.
(ix) Under aged/Over aged candidates.
(x) Not having the requisite Educational Qualification at the time of submitting application.
(xi) Applications received after 17.00 hrs. on closing date by any means/modes.
(xii) Photo copies of the certificates not attested by Gazetted Officer.
(xiii) More than one application in one Name or sent in one envelope.
(xiv) Issue the notification date and after expire date the notification date received application form not applicable.
(xv) Postal Orders/Bank drafts issued before the date of issue of Employment Notice (i.e. 16.12.2010) or with less than six months validity. (xvi) Any other deemed irregularity.
Cl.8.11 of the advertisement envisages about different nature of deficiencies, discrepancies or irregularities which render the application invalid and summarily rejected but despite exhaustive illustrative irregularities being pointed out, indisputably, the case of the present petitioner does not cover in either of the irregularities/discrepancies and in view of the alleged deficiency/discrepancy in OMR Sheet, pointed out in the case of the present petitioner, his application came to be rejected treating it to be an invalid application invoking Cl.8.11(xvi) of the general terms & conditions of the advertisement The ld.Tribunal under its order impugned observed that the petitioner has not signed Column No.4 in Hindi & Column No.5 in English and thus failed to follow the instructions printed on the OMR Sheet and that was considered to be a deemed irregularity and dismissed his Original Application under order impugned dt.09.07.2014. The petitioner being aggrieved by decision of the ld.Tribunal filed the instant writ petition.
We have heard counsel for the petitioner at length on the issue at hand. Two questions arise for consideration. The first question is as to whether there has at all been a violation of Cl.8.11(xvi) of the Instructions; and the second is as to whether that condition is mandatory or mere directory.
Counsel for petitioner submits that on both counts the decision of the ld.Tribunal ought to have been rendered in favour of the petitioner and further submits that in different columns of the OMR Sheet, xerox copy whereof is on record as Ann.R-4, the applicant is supposed to place thumb impressions and also put his signatures, which is to be countersigned by the Invigilator and confirmation that OMR Sheet is of the concerned applicant whose name has been referred to along with the Roll Number to avoid impersonation. Indisputably, all the formalities including attendance sheet, Roll Number, Left Thumb Impression with verification by the Invigilator are full and complete but he could not put his signature in addition to it in Hindi and in Block Capital Letters in English for which, counsel submits, the condition of signature in Block Capital Letters on OMR Sheet was not mandatory and cancelling his application form on the premise that his signature in full are not indicated in the OMR Sheet despite all other formalities including attendance sheet, Roll Number, pasting of his Left Thumb Impression and verification by Invigilator and his name being shown in the OMR Sheet are complete in all respect and summary rejection of his application at this stage is totally arbitrary and it will not fall in the nature of irregularity, as taken note of by the respondents and considered by the ld.Tribunal falling under Cl.8.11(xvi) of the terms & conditions of the advertisement.
Counsel further submits that the judgment on which the ld.Tribunal has placed reliance has no application to the present facts of the case and once he has been finally selected and find place in the order of merit in OBC Category, at least he could not be deprived of seeking public employment to which he is eligible and found suitable for appointment.
Counsel for respondent, on the other hand submits that the petitioner has failed to comply with the instructions of not signing the OMR Sheet in Block Capital Letters in English and as a result thereof Cl.8.11(xvi) of the general terms & conditions of the advertisement got triggered and his application has been rightly rejected summarily. He further submits that there is no scrutiny done at the stage of issuance of Admit Cards and it is only after the examination is conducted and if the candidate falls within the zone of consideration, at that stage alone, his application is scrutinized and at that stage, the respondent came to know that the petitioner has not complied with the stipulation as regards signatures on the OMR Sheet in full and further submits that condition of signing in Block Capital Letters in English is a mandatory condition and once it is recognized, there cannot be any deviation and placed reliance on the judgments of the Apex Court in Karnatak Public Service Commission & Others Vs. B.M.Vijaya Shankar & Others reported in JT 1992 (4) SC 348; Bedanga Talukdar Vs. Saifudaullah Khan & Others reported in (2011) 12 SCC 85; and UOI & Anr. Vs. Sarwan Ram & Anr. [Civil Appeal No.9388/2014] decided on 08.10.2014.
The undisputed facts which can be noticed are that the petitioner is a member of OBC Category and he applied for various categories in Group 'D' post, which is a cadre of Class-IV and participated in the selection process pursuant to the employment notice No.2/2010 issued by the Railway Recruitment Cell, North Western Railway, Jaipur and qualified the written examination and so also physical efficiency test and finally placed in the select list and candidates lower in the order of merit in OBC Category have been offered appointment and his application has been rejected treating it to be an invalid application invoking Cl.8.11(xvi) of the terms & conditions of the advertisement which have been referred to above.
At the outset, it may be noticed that what has been indicated in Cl.8.11(xvi) relates to the application which the candidate has filled, pursuant to the advertisement, while participating in the selection process and indisputably, in the instant case, there is no deficiency or irregularity which has been pointed out in the application form by the respondents to the petitioner while he participated in the selection process. However, the reason forthcoming for rejection of his candidature is that in the OMR Sheet which he filled for appearing in the written examination, there are three separate blocks to mention the name in Block Capital Letters in English, date of examination and a declaration is to be made that candidate has gone through all the terms & conditions of the written examination which is held by the Railway Recruitment Cell and the declaration is to be signed in Block Capital Letters in English and to make it more authenticated, the candidate has to put his Left Thumb Impression and that is to be verified by the Invigilator. However, any kind of alleged discrepancies as pointed out, all the signatures in Block Capital Letters in English not being mentioned by the petitioner in his OMR Sheet is not being regulated in terms of Cl.8.11(xvi) only relates to the application which the candidate has furnished while intending to participate in the selection process, pursuant to the advertisement issued by the Railway Recruitment Cell and as regards terms & conditions of the OMR Sheet, which has been noticed by the ld.Tribunal in para-6 of the order dt.09.07.2014 and condition No.4, in particular, refers to incomplete & incorrect entries and that may render the answersheet invalid and instructions in OMR Sheet in no manner are regulated in terms of Cl.8.11 of the terms & conditions of the advertisement.
Still for our satisfaction, we asked the respondents to substantiate as to what was the object behind insisting upon signature in Capital Letters alone when there is a specific column where the candidate has to put his thumb impression and that has to be verified by the Invigilator and the answer given to us is that it is required to indicate in the OMR Sheet and if not complied with certainly it will be considered to be an invalid OMR Sheet and deserves rejection but we find that object behind the instructions is to ensure that no one is able to impersonate the applicant whose name has been shown in the OMR Sheet and all the other formalities, in the instant case, are fully complied with by the petitioner while indicating his Roll Number & Thumb Impression which are countersigned by the Invigilator. Thus, all possibilities that someone may impersonate the person who has to participate in the examination, have been completely ruled out.
We further find from the record that applicants have to affix their photographs on the application forms and the photographs of the candidates were also affixed by the respondents on the Roll Number/ Admit Cards issued to each of them. The requirement of affixing a photograph on the application form followed by issuance of the Roll Number/Admit Card containing the photograph of the candidate would ensure that only the person whose photograph is affixed on the application form appears in the examination. Thus, all possibilities to impersonate the person have been completely ruled out in the case of the petitioner when on OMR Sheet, Left Thumb Impression was verified by the Invigilator and counter-checked from the Admit Card issued to him to appear in the written examination.
In these facts & circumstances merely signing in Capital Letters in English or Hindi does not rule out the possibility of impersonation which can be ensured only by the safeguards, such as the requirement of affixing a photograph of the applicant on the application form followed by affixation of his photograph on the Roll Number/Admit Card issued to him and that certainly confirms on thumb impression is being countersigned by both the Invigilators and it is the applicant alone who had participated in the examination and the object with which such written examinations are being conducted, is fulfilled and achieved and it is not the case of the respondents that there was any iota of suspicion in impersonating the petitioner on account of signatures have not been indicated in Capital Letters in English by the petitioner in his OMR Sheet.
The ld.Tribunal has placed reliance on the judgment of the Supreme Court in Badanga Talukdar (supra) and in particular paras 28 & 29 thereof. It may not be of any assistance to the respondents as in the above referred case advertisement was issued by the Public Service Commission inviting applications for one post in Assam Civil Service Class-I (Junior Grade) from persons suffering from Locomotor Disability in connection with conduct of combined Competitive (Preliminary) Examination, 2006 for screening candidates for the main examination for the post which was mentioned in an earlier advertisement. It was stipulated in the advertisement that the candidates with locomotor disability must produce supporting documents in the office of Assam Public Service Commission or in the examination hall before commencement of the examination. The respondent No.1 did not submit the mandatory document to substantiate his candidature for the seat reserved for Locomotor disability on or before the last date for submission of application. He did not submit these mandatory documents even at the time when he appeared in the preliminary examination. He, therefore, appeared in the examination, as a general candidate. The appellant before the Supreme Court was another person with Locomotor disability who had also applied for the said examination. The appellant as well as respondent No.1 successfully participated in the Preliminary Examination and the respondent No.1 was permitted to appear in the Main Examination and both the appellant as well as the respondent No.1 were called for interview. The respondent No.1 before the Supreme Court submitted that the certificate with respect to Locomotor disability issued by the District Medical Board, Dhubri produced at the time of interview. The name of respondent No1., however, did not appear in the select list and he later on came to know that the marks secured by him were higher than the marks obtained by the appellant. It transpired that the respondent No.1 had not been declared successful on the ground that the above referred mandatory documents were not submitted by him in time. The case of the Commission before the Court was that the documents, which respondent No.1 had failed to submit in time, were vital to support his claim to be considered for the post reserved for candidates with Locomotor disability and therefore, his candidature was rejected for non-fulfillment of essential condition. In fact, the ID Card had not been submitted by the respondent No.1 even till after interview and by the time he submitted the ID Card the select list had already been published. It was contended on behalf of the Commission that there can be no variation in the conditions of eligibility as laid down in the advertisement, unless a specific stipulation is made about any particular condition being relaxable at the discretion of the concerned authority. It was on these facts that the above quoted observations were made by the Supreme Court.
Reliance placed by counsel for respondents on the case of UOI & Anr. Vs. Sarwan Ram & Anr. [Civil Appeal No.9388/2014] decided on 08.10.2014 may not be of any assistance to them for the reason that it was a case where the applicant applied for Group-D post in Ex-Serviceman Quota and the applicant who intends to participate in the selection process in Ex-Serviceman Quota, it was mandated that he has to paste photograph in military uniform along with application form, which was one of the mandatory condition to be complied with by the applicant. Indisputably, the photograph pasted by him was not in the Military Uniform and the application form filled by him was considered to be defective and came to be rejected by the recruiting agency and the justification offered by the respondent-recruiting agency was that as per the Defence Service Regulation, officers holding honorary commissions and released officers who held other types of commissions may on special occasion wear the military uniform. But released/discharged JCOs, WOs or Ncs(E) may be allowed to wear uniform on specifications only under orders issued by the Army Headquarters from time to time and that all regular officers who have retired from the service and officers who have been permitted to retain their rank on retirement from RRO Commissioner may wear uniform on special occasions like attending ceremonies and entertainments of military nature and on other occasions when the wearing of uniform would appear appropriate. It came to the notice of the authorities that bogus persons by enclosing fake certificates started getting recruited and to rule out and eliminate the possibility of any bogus person getting such recruitment, condition No.8.7(i) was introduced to paste photograph in military uniform on the application form and obviously the object is behind that no one is able to impersonate the person.
However, the case before us is not a case of the candidate failing to submit documents which were essential for verifying his eligibility. As observed earlier, the identity of the candidate could be established from the photograph which he was required to affix on the application form as well as from the Roll Number/Admit Card issued to him and the signature in Capital Letters would, therefore, have not been of much use for achieving the objective of verifying the identity of the candidate human error in totality cannot be avoided. At the same time in the OMR Sheet filled by the present petitioner, he has put his Left Thumb Impression and that was duly countersigned by both the two Invigilators and all other formalities were complied with by him, as such, there was no scope to impersonate the person and it is also not the case of the respondents that they had any suspicion of the applicant being impersonated.
However, it is not a case of violation of any of the conditions stipulated u/Cl.8.11(xvi) but the case substantiated by the respondents before the ld.Tribunal was that the petitioner has not put his full signatures in Block Capital Letters in English & Hindi while he filled his OMR Sheet and at the time when he appeared in the examination, as alleged, has not complied with the declaration which he made & appended to the OMR Sheet and, in our considered view, Cl.8.11(xvi) which has been invoked by the respondents has no application and is not sustainable in the eye of law and the ld.Tribunal, in our considered view, has committed serious error in invoking Cl.8.11(xvi) of the terms & conditions of the advertisement (Invalid Application) rejecting very application of the petitioner.
Even otherwise, in our view, the identity of the petitioner has been fully established from the various documents which were furnished by him while participating in the selection process and in these facts & circumstances, the stipulation with regard to invalidity of OMR Sheet taken note of by the respondents as a ground, the petitioner's signature in Block Capital Letters in English not being mentioned in the OMR Sheet, in our considered view, is merely directory and not mandatory. The decisions cited by the respondent's counsel and relied upon by the ld.Tribunal, in our considered view, are clearly distinguishable.
Thus, in our considered view, the writ petition deserves to succeed and is hereby allowed. The order of the ld.Tribunal dt.09.07.2014 is accordingly quashed and set aside and the respondents are directed to consider the case of the petitioner for appointment in Group 'D' cadre, pursuant to employment notice No.2/2010 dt.16.12.2010, as per his placement in the select list of Group 'D' cadre and necessary orders shall be passed by the respondents within 30 days.
No costs.
(J.K.RANKA), J. (AJAY RASTOGI), J. All corrections made in judgment/order have been incorporated in the judgment/order being emailed. Solanki DS, Sr.P.A.