Allahabad High Court
Guddu Kumar Purbey vs Union Of India And 2 Others on 17 March, 2021
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on:-01.02.2021 Delivered on :- 17.03.2021 Court No. - 39 Case :- WRIT - A No. - 2133 of 2020 Petitioner :- Guddu Kumar Purbey Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare Sr. Advocate Counsel for Respondent :- A.S.G.I.,Anurag Sharma Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri Siddharth Khare learned counsel for the petitioner and Sri Anurag Sharma learned counsel for the respondents.
The writ petition is directed against the order dated 1.11.2019 passed by the respondent no.3 whereby the final result of the examination, i.e. the candidature of the petitioner in the recruitment for the post of Constable (GD) in CAPFs and Rifle man (GD) in Assam Rifles Exam 2013, had been cancelled and he had been debarred for a period of three years from appearing in the examination conducted by the Commission, w.e.f the date of the written examination as per the rules followed by the Commission.
At the outset, it may be noted that the written examination of the recruitment-in-question was held on 12.5.2013. The period of three years for which the petitioner had been debarred from the date of the written examination, thus, was over by 12.5.2016. The second part of the order impugned, therefore, would cause no prejudice to the petitioner.
As far as the cancellation of the result of the written examination i.e. the candidature of the petitioner in the recruitment-in-question is concerned, the order impugned is based on the CFSL report wherein fingerprint expert had reported regarding mismatching of thumb impression put by the petitioner on the admit card of the written examination with the sample of his left and right thumb impressions taken by the Commission. The allegations, thus, are that the petitioner had procured impersonation for selection in the said examination.
It is vehemently argued by the learned counsel for the petitioner that the opinion formed by the expert regarding mismatching of the thumb impression itself is questionable, in as much as, from the report itself, it is clear that the thumb impression at the admission card of the written examination, marked as Q-3, was sufficiently ink smudged and comparison of the same from the sample of right and left thumb impressions of the petitioner was not possible.
Placing the report of the expert at pages-'53' and '54' of the paper book, it was urged that in fact the said report is contradictory, in as much as, in the same report with regard to the thumb impression marked at Q-1, the expert had opined that the same could not be compared being sufficiently ink smudged and no opinion, therefore, could be given on the same. The contrary opinion with regard to the impression marked as Q-3 is unbelievable. It is then argued that there was no other material to prove the allegations of impersonation. The expert report being the only piece of evidence could not have been made basis to cancel the petitioner's candidature. Rather the evidence on record contradicts the expert's version of impersonation, in as much as, the identity of the petitioner had been determined at the time of the written examination. It is argued that the petitioner had to carry his identity card which was verified by the Commission through their officers, on the date and place of the written examination. It cannot be accepted or presumed that the staff/employees of the Commission had failed to correctly identify the petitioner despite existence of his identity card. It is urged that this Court in the previous round of litigation initiated by the petitioner alongwith other similarly situated persons had observed that the expert opinion not being conclusive could not solely be relied upon to cancel the petitioner's provisional selection, ignoring other materials. It is then argued that the reply submitted by the petitioner to the show cause notice dated 19.9.2019 pointing out discrepancy in the expert report had been ignored and the respondent no.3 in the order impugned had wrongly mentioned that the petitioner did not give any reply regarding mismatching of thumb impression.
Reliance is placed on the decision of the Apex Court in S.P.S. Rathore vs Central Bureau of Investigation and another reported in (2017) 5 SCC 817 and Padum Kumar vs State of Uttar Pradesh reported in (2020) 3 SCC 35 to vehemently urge that the evidence of an expert being only an opinion is though admissible but a very weak nature of evidence. It has to be considered along with other pieces of evidence. In case, where the expert report is not corroborated by other evidence on record, it cannot be made sole basis of decision. The allegations of impersonation cannot be established solely on the expert report which itself is contradictory. Attention of the Court is also invited to page-'60' of the paper book which is the copy of the admission certificate of the written examination held on 12.5.2013 and wherein left hand thumb impression put by the petitioner has been marked as Q-3, in order to submit that the said impression was sufficiently ink smudged and the opinion regarding variance of the same with the sample thumb impression formed by the expert is not acceptable.
In view of the above contention, in order to ascertain whether the comparison of thumb impression was possible, the original record of the inquiry including the sample paper and the original admit card, which were examined by the expert to give its report, was summoned by the Court by order dated 21.1.2021, and was produced on 1.2.2021. The findings of the Court on comparison of the same would be discussed at the appropriate stage of this judgment.
The respondent, on the other hand, had relied upon the finger print expert report regarding mismatching of the thumb impression to support their decision of cancellation of the candidature of the petitioner in addition to the report of the handwriting expert of the Central Forensic Science Laboratory dated 27.5.2016. The contention is that the impersonation by the petitioner in the written examination was proved with the expert report. On receipt of the report regarding mismatching of the fingerprint, a show cause notice dated 19.9.2019 was served on the petitioner with a view to give him opportunity to contradict the said report. No plausible explanation could be furnished by the petitioner and the decision to cancel his candidature had been taken after consideration of his reply. As far as the arguments of the learned counsel for the petitioner that the expert report was the only piece of evidence of alleged impersonation, it is contended that the written examination was conducted in 249 sub-centres of 11 districts of Uttar Pradesh and Bihar which fell under the jurisdiction of the Central Regional Office of the Staff Selection Commission. The written examination was conducted on 12.5.2013 at various schools/institutes and their teachers/staff were engaged as invigilators. The fact that the invigilators had failed to recognize the identity of candidates can not be taken against the stand of the Commission regarding impersonation by the candidate. The signature/hand writing and thumb impression of the candidates were taken at different stages of the examination, i.e written examination, physical and medical test in order to rule out any case of impersonation by the candidates. The invigilators did not have other relevant documents such as application form etc and, thus, had no opportunity and sufficient time for comparing the signatures/hand writing, etc of each and every candidate.
The identity of candidates who had presented themselves to write the examination was tallied from the photograph in the identity card produced at the examination centre. But, in order to rule out all possibilities of mistaken identity & impersonation by the candidates in such a huge exercise of recruitment, thumb impressions and writing were taken from the candidates at the different stages of examination.
On suspicion of difference in the handwriting/signature/thumb impression available at different stages of the examination, the case of the petitioner was forwarded to the experts of Government Laboratory for Forensic Examination and Fingerprint Expert's evaluation. Having received the reports of the experts being satisfied with the material on record which was sufficient to form an opinion by the respondent no.3 that the petitioner had procured impersonation in the examination, the candidature of the petitioner was cancelled. The writ petition is, thus, liable to be dismissed.
Having heard learned counsel for the parties and perused the record, it may be noted that this Court in the previous round of litigation in the judgment and order dated 16.4.2018 while quashing the orders of the respondent in cancelling the selection of certain candidates including the petitioner and debarring them from appearing in the future examination for three years, had observed as under:-
"20. Conclusion of the employer/Commission that petitioners had impersonated if was based upon matching of the thumb impression or the photograph then it was definitely entitled to greater respect. Such a conclusion, based only upon the handwriting expert's opinion, however, would not be justified. The judgments in Pradeep Fauzdar (supra), Sanjeev Kumar (supra) and Abhishek Kumar (supra) are, therefore, distinguishable on facts, inasmuch as Commission's conclusion of impersonation in the present case is not based upon evaluation/matching of thumb impression.
21. In the facts of the present case, specimen thumb impression and admitted thumb impression were on record, but the expert's opinion in that regard has neither been produced, nor relied upon to hold that petitioners have impersonated. The averment made in para 39 of the writ petition that the thumb impression could have been verified to establish the identity of petitioners has been replied in para 23 of the counter affidavit, contending that the specimen handwriting and signatures do not match with the signatures and handwriting in the written examination. There is no justification brought on record as to why thumb impressions, though available, were not tallied. "
"23. In the facts of the present case, despite allegation made in the notice dated 5.8.2015 about thumb impression, signatures and handwriting having not tallied, the respondents have confined their conclusion to the opinion of the handwriting expert. Such opinion cannot be construed as being conclusive.
24. In the present case not only the petitioners have been denied appointment but they are also debarred from appearing in any examination conducted by the Commission for three years. Such order of Commission is clearly stigmatic in nature. The order under challenge carries civil consequences also. Such order cannot be sustained merely on the strength of handwriting report, nature of which remains that of an opinion, and cannot be construed as conclusive."
"27. The opinion of handwriting expert was required to have been viewed with other materials available on record. Admittedly the petitioners had carried their identity cards, which had been verified at all stages of examination by the Commission and their officers. There cannot be a presumption that all the staffs/employees of Commission had failed to correctly identified the petitioner despite existence of identity card. The presumption that petitioners had identified themselves with reference to specified identity cards could not be lightly brushed aside. The fact that respondents had admitted thumb impressions and specimen thumb impressions with them, which have not been tallied also, is a factor to be kept in mind. There apparently was no reason for the respondents not to have verified the identity of petitioners with reference to their thumb impression, which is an evidence superior to the report of handwriting expert. The nature of expert's opinion otherwise not being conclusive, could not solely be relied upon to cancel petitioners' provisional selection, ignoring other materials, particularly when the order itself was stigmatic."
"29. Although the report of Government Laboratory and opinion of its experts would be entitled to weight, particularly when no bias or mala fide is alleged, yet, being in the nature of opinion, it cannot conclusively establish impersonation on part of the petitioners. The respondents' action is otherwise not in conformity with the principles of natural justice. In such circumstances, I am of the considered view that action of respondents in cancelling petitioners' provisional selection, and debarring them from appearing in any exam conducted by the Commission for three years, is violative of Article 14 of the Constitution of India. Orders impugned dated 27.10.2016 and 14.12.2016, accordingly, stands quashed.
30. It shall, however, be open for the respondents to verify identity of petitioners upon material and evidence admissible in law by following the principles of natural justice. The required exercise be undertaken preferably within a period of four months from the date of presentation of certified copy of this order, as petitioners have already lost sufficient time. Based upon such consideration, the respondents shall take a fresh decision in the matter relating to grant of appointment to the petitioners. "
The Division Bench in Special Appeal no.1045 of 2018, which arose out of the aforesaid decision, had noted hereunder:-
"In the case in hand, as stated by learned Single Bench, the requirement is only to adhere the principles of natural justice and, for that purpose, the respondent-petitioners should have been confronted with the expert's report.
At this juncture, we would also like to state that it is not the case of the appellant-respondents that the process of selection suffers from mass-irregularity, but of unfair practices adopted by certain individuals.
Looking to this background also, we are of considered opinion that while cancelling examination of the respondent-petitioners and further debarring him for three consecutive examinations the appellant should have supplied a copy of the opinion given by the handwriting expert. Non-supply of that is in violation of principles of natural justice. "
A careful reading of the aforesaid decisions indicates that this Court had quashed the decision of the respondents on two grounds (i) firstly, that the opinion of handwriting expert could not be construed as being conclusive, in as much as, the identity of the candidates who wrote written examination (including petitioner herein) with reference to their thumb impressions had not been ascertained by the respondents. It was opined that the handwriting expert's opinion could not be solely made basis to cancel the petitioner's provisional selection in absence of any explanation as to why thumb impression though available was not tallied. (ii) Secondly, it was found that the respondents had passed order debarring the petitioner from appearing in future examinations for three years which carried civil consequences and, being stigmatic in nature, opportunity ought to have been afforded to the petitioner to contradict the material on which opinion was formed.
While quashing the aforesaid order, liberty was granted to the respondents/commission to verify identity of the petitioners upon material and evidence admissible in law by following the principles of natural justice. In compliance of the order of this Court, the Commission had sent necessary material for obtaining report of the fingerprint expert. The report dated 27.5.2016 of the handwriting expert along with the fingerprint expert report and other material were supplied to the petitioner along with the show cause notice dated 19.9.2019. The handwriting expert report dated 27.5.2016 was obtained with regard to the documents marked as exhibits containing writing and signatures of the candidates as under:-
Documents Writing & Signatures marked i Document verification sheet dt.13.01.2014 in one sheet Q1 & Q2 ii Admission certificate for PET dt. 27.02.2013 in one sheet Q3, Q4, Q4/1, Q5 & Q6 iii Admission certificate for Medical Test dt. 13.01.2014 in one sheet Q7, Q8, Q8/1 & Q9 iv Admission certificate for Written Test dt. 12.05.2013 in one sheet Q10 to Q12 v Scanned copy of SSC Application Form in one sheet Nil vi Specimen writings and signatures/thumb impressions all in 07 sheets S1 to S40 The opinion formed by the handwriting experts is as under:
"2. The person who wrote the blue enclosed writings and signatures stamped and marked S1 to S40 also wrote the red enclosed writings and signatures similarly stamped and marked Q1 to Q4, Q4/1, Q5 to Q8, Q8/1 & Q9.
3. The person who wrote the blue enclosed writings and signatures stamped and marked S1 to S40 did not write the red enclosed writings and signatures similarly stamped and marked Q10 to Q12."
A further perusal of the said report indicates that the handwriting expert had also given reasons for the opinion formed in Para '3' of the said report (extracted above) as under:-
"That the person who wrote the blue enclosed writings and signatures stamped and marked as S1 to S40 did not write the red enclosed writings and signatures similarly stamped and marked Q10 to Q12 are based on the fundamental differences in handwriting characteristics.
The specimen writings and signatures marked S1 and S40 are freely written with smooth line quality and gradation of pressure. These writings and signatures are consistent inter-se, show natural variation and suitable for examination.
The questioned signatures are written slowly, the strokes are drawn, studied, lack of directness, careful joining. The standard signatures are freely written with smooth line quality. The questioned writings marked Q8 are written freely with the line quality and they are the penmanship of higher skilled writer.
The specimen writings and signatures do not agree with the questioned writings and signatures in the class characteristics such as skill, speed, size and proportion, alignment and slant.
They also show fundamental differences in the execution of letters in the signatures, the manner of commencement as well as shape of 'G', nature of rotundity of 'u', movement in the formation of 'd', shape of 'o' relative size and proportion of 'ar', shape of 'a', execution of 'e' and 'y' in the signatures are found different.
The manner of execution of 'e', 'r', 'f', 'm', 'd', 'l'; differences are also observed in the execution of words 'certify', 'that', 'the', 'whose', 'certificate', 'admission' are all found different.
All the aforesaid differences are fundamental in nature and beyond the range of the natural variation of the writer. I do not find any similarities in the execution of the letters. Considering the fundamental differences without any characteristic similarities led me to the aforesaid opinion."
The fingerprint expert in its report had matched the thumb impressions of the petitioner marked as Q to Q-5 on various documents as under:-
"1. A document verification sheet of Gudoo Kumar Purbey Roll No.3205013278 Recruitment for the post of constable (GD) in CAPFs and Rifle man in Assam Rifles 2013 dtd. 13.01.2014 bearing impression marked Q.
2. Staff Selection Commission (CR) Allahabad Recruitment for the post of constable (GD) in CAPFs and Rifle man (GD) in Assam Rifles Exam 2013 of Gudoo Kumar Purbey Roll No. 3205013278 dtd 27.02.2013 bearing impression marked Q-1.
3. An Admission Certificate (Commission's copy) of Staff Selection Commission (CR) Allahabad Rectt. Of Constable (GD) in CAPFs and Rifle man (GD) in Assam Rifles Exam 2013 (medical test) of Gudoo Kumar Purbey Roll No. 3205013278 dtd. 13.01.2014 bearing impression marked Q-2.
4. An Admission Certificate (Commission's copy) of Staff Selection Commission (CR) Allahabad Rectt. of Constable (GD) in CAPFs and Rifle man (GD) in Assam Rifles Exam 2013 of Gudoo Kumar Purbey Roll No. 3205013278 dtd. 12.5.2013 bearing impression marked Q-3.
5. Appendix "A-1" Physical Endurance Test for the post of Constable/GD in CAPFs for the year 2013-14 of Gudoo Kumar Purbey Roll No. 3205013278 bearing impression marked Q-4.
6. Medical examination report for combined Recruitment of Constable/GD in CAPFs for the year 2013-14 of Gudoo Kumar Purbey Roll No. 3205013278 bearing impression marked Q-5."
The sample paper bearing right and left thumb impressions of the petitioner were tallied with the above marked thumb impressions. The expert report with regard to the thumb impressions marked as 'Q-3', on the admit card of the written examination held on 12.5.2013 and Q-1 taken on 27.2.2013 at the first stage of the physical efficiency test, read as under:-
"The impression marked Q-3 (life size photo enclosed) on the face of an Admission Certificate (Commission's copy) of Staff Selection Commission (CR) Allahabad Rectt. Of Constable (GD) in CAPFs and Rifle man (GD) in Assam Rifles Exam 2013 of Guddo Kumar Purbey Roll No.3205013278 dtd. 12.05.2013 is sufficiently ink smudged and do not permit of comparison on their sufficient number of dependable ridge characteristic details but being of different in configuration of ridges is different from the Right and Left Thumb impressions of Gudoo Kumar Purbey Roll No.3205013278 on his sample paper.
The impression marked Q-1 on the face of Staff Selection Commission (CR) Allahabad Recruitment for the post of constable (GD) in CAPFs and Rifle man (GD) in Assam Rifles Exam 2013 of Gudoo Kumar Purbey Roll No.3205013278 dtd. 27.02.2013 is sufficiently ink smudged and do not permit of comparison in their sufficient number of dependable ridge characteristic details. Hence no opinion can therefore be given on it."
The above extracted part of the report had been read and reread during arguments by the counsel for the petitioner to assert that the report itself is contradictory in nature, in as much as, once the expert had found that the thumb impression marked as 'Q-3' was sufficiently ink smudged, the comparison of the same from the sample of right and left thumb impressions was not possible.
To test this argument of the counsel for the petitioner, the Court had carefully perused the original thumb impressions marked as Q-1, Q-2, Q-3, Q-4, Q-5 and the sample thumb impressions taken on 25.8.2015 from the original record produced by the Commission. The record was also shown to the counsel for the petitioner.
From a perusal of the above record, it can be seen that the left thumb impression of the petitioner taken on 27.2.2013 at the first stage of the physical efficiency test marked as 'Q-1', is sufficiently ink smudged, whereas the thumb impression marked as Q-3 was comparable in some respect. The opinion formed by the fingerprint expert that though Q-3 did not permit a comparison on sufficient dependable ridge characteristic details being sufficiently ink smudged but being different in configuration of ridges is different from the left and right thumb impressions of the petitioner on the sample paper, is found to be correct.
From the careful perusal of the original record, it cannot be said that the comparison of Q-3 with the left thumb impressions on the sample paper was not possible or the report of the expert is incorrect. The first limb of argument of the learned counsel for the petitioner regarding contradictions in the report of the fingerprint expert of thumb impressions marked as Q-3 and Q-1 is, therefore, repelled.
As far as the other argument with regard to the absence of any other material in support of the said expert report, it may be noted that even the handwriting expert in the Forensic Examination Report dated 27.5.2016 had found difference in the writing and signature in the admission certificate for the written test dated 12.5.2013 in one sheet, marked as Q-10 to Q-12 from the specimen writing and signature in seven sheets marked as S-1 to S-40. The comparison from the admitted signature/handwriting and thumb impressions of the petitioner on the sample papers taken by the Commission from that of the admission card for the written examination proved the allegations of impersonation. The expert's report, noted above, cannot be discarded on the plea that the invigilator in the examination hall on the date of the written examination held on 12.5.2013 had identified the candidate from the identity card submitted by him. The thumb impressions of candidates were taken on different dates at different stages of the examination to rule out all possible cases of impersonation. The evidence of fingerprint expert along with the report of handwriting expert proved the allegations of impersonation in all probability, in the facts of the present case.
On legal principles, the weight of evidence, in such an inquiry, has to be tested on the principles of preponderance of probability. The strict rule of evidence to weigh the material evidence on record, as applicable in criminal case of proof beyond all reasonable doubt, is not applicable here. It cannot be said that the material relied by the Commission is irrelevant, extraneous or unrelated to the issue. No malafide is pleaded. The fingerprint expert report along with the handwriting expert report form relevant material to form an opinion regarding impersonation and cannot be ignored as being merely an opinion.
Reliance placed on the decision of the Apex Court in S.P.S. Rathore vs Central Bureau of Investigation and another reported in (2017) 5 SCC 817 and Padum Kumar vs State of Uttar Pradesh reported in (2020) 3 SCC 35 is, thus, misplaced.
Dealing with the last argument of the counsel for the petitioner that the explanation offered by the petitioner and the contradiction shown by him in the expert report had not been dealt with by the respondents no.3, suffice it to say that having perused the material on record, the decision of the Committee formed by the Commission to examine expert's report and the representation moved by the petitioner, that there was sufficient material to hold that the petitioner had procured impersonation for being selected in the examination, cannot be faulted.
In view of the above discussion, no merit is found in the challenge to the decision of the respondents to cancel the candidature of the petitioner in the recruitment examination-in-question.
The writ petition is found devoid of merit and hence dismissed.
The original record be returned to the counsel for the Commission.
Order Date :-17.3.2021 Harshita