Central Administrative Tribunal - Allahabad
Shri Ajai Kumar S/O Shri Late Kunjal Lal vs Union Of India Through The General ... on 25 March, 2011
[RESERVED]
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH, ALLAHABAD.
ORIGINAL APPLICATION NO.1487/04
Dated this the 25 th day of March , 2011.
HONBLE SHRI S.N. SHUKLA, MEMBER (A)
HONBLE SHRI SANJEEV KAUSHIK, MEMBER (J)
Shri Ajai Kumar s/o Shri Late Kunjal Lal
R/o 114/3 Lukar Ganj, Allahabad. Applicant
(By Advocate: None present )
Versus
1. Union of India through the General Manager,
Northern Central Railway, Allahabad.
2. The Chairman, Railway Recruitment Board,
Allahabad.
3. The Divisional Railway Manager,
Northern Central Railway,
Allahbad. Respondents
(By Advocate : Shri P.Mathur, Standing Counsel for the Union of India.
O R D E R
PER MR. SANJEEV KAUSHIK, MEMBER (J):
By way of instant Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has impugned order dated 1.10.2004 passed by respondent No.2 whereby the candidature of the applicant has been rejected on the ground of adopting unfair means of impersonation and further debarred him from appearing from all Examinations to be conducted by the Railway Recruitment Board for life time. (Annexure A.1).
2. Brief facts of the case are that the respondents issued advertisement in Employment i.e. Employment Notice No.3/95-96 inviting application for the post of Assistant Station Master. The applicant being fully eligible in terms of the above stated advertisement applied to respondent No.2. The applicant was allowed to sit in the preliminary examination and thereafter he was sent a call letter on 24.11.2001 for main examination. He was allowed provisional Roll No. 3621326 (Annexure A.2). As per the Schedule fixed for the main examination the applicant appeared. The result of examination was declared in newspaper on 1.1.2002, he was declared successful (Annexure A.3). He was also sent a call letter by the respondent No.2 on 13.2.2002 calling for interview and psycho analysis test (Annexure A.4). It is further submitted by the applicant that when the final list of successful candidates were displayed the applicants name did not find mention there. The applicant was issued a letter on 2nd July 2002 wherein he was called for verification of documents. Accordingly he appeared before respondents on 5th August, 2002 for verification of relevant documents (Annexure A.5). When the applicant did not hear anything from the respondents in this regard then he stated to have made a representation on 13.7.2004 to Respondent No.2. Despite the above representation respondents did not disclose anything then the applicant approached this Tribunal by way of O.A. No. 960/2004 which was disposed of on 31.8.2004 with a direction to the respondents to dispose of pending representation of the applicant dated 13.7.2004 by means of a reasoned order within a period of two months from the date of communication of this order (Annexure A.7). In compliance of the order passed by this Tribunal the respondents No.2 passed an order dated 1st October, 2004 rejected his claim and cancelled his candidature and further he was debarred in appearing from any examinations conducted by the Railway Recruitment Board for life time. Hence the instant Original Application.
3. Upon notice the respondents filed detailed Counter Affidavit. In the Counter Affidavit the respondents admitted the fact that the applicant appeared in the examination and was declared successful in Written Examination. The respondents stated that since a large number of candidates appearing in the examination and as such to have a transparency in the selection and to eliminate chances of impersonation/unfair fraudulent means in the ensuing examination in order to protect the interest of the genuine and meritorious candidates, certain procedure has been adopted by the Railway Recruitment Boards by holding a two tier examination system and it is only after qualifying in the preliminary examination, an individual is permitted to appear in the Main Examination and on being found successful, is required to undergo Psyhological and interview and to complete certain requisite mandatory requirement for his empanelment. As per the procedure, test in English and in Hindi, candidate is required to give five signatures in his own handwriting in Hindi and English respectively. Apart from the same, a left thump impression of the candidate is also obtained on the application form. Apart from the aforesaid precautions, test in English and Hindi in candidates own running handwriting and one signature each in Hindi and English are taken in the question booklet and one signature in Hindi and English are taken in the answer sheets and attendance sheets respectively. Left thump impression is also taken on the question booklet. In the instant case the applicant had qualified in the preliminary examination and a such was entitled to appear in the main examination in which he was found successful and therefore, was required to undergo a Phsychological test and interview which is a mandatory requirement for his empanelment. It is further submitted that when the documents of the applicant was verified on 13.2.2002 at the time of Psychological test and interview it was detected that the signature and the hand writing of the examinee on the question booklet and on the answer sheets were not matching with the original. Therefore, as per the procedure, before taking final decision, all such doubtful cases are sent to the Government Examiner of the Questionable Documents which is the Govt. Agency for confirmation of the doubt. Accordingly the case of the applicant was forwarded and when it was found that the applicant used fraudulent means in the examination then his candidature was rejected in pursuance of Railway Board Letter date 9.3.2000 and was debarred from appearing in the Recruitment Board Examinations held by the Railway Recruitment Board. (Annexure A.1).
5. During the course of hearing nobody appeared on behalf of the applicant even on the revised call. Therefore, by exercising the powers under Rule 15 of the C.A.T. (Procedure) Rules 1987 we proceed to dispose of the instant O.A. on merits after hearing Shri P. Mathur, learned counsel for the respondents.
6. What we have gathered from the averments made by the applicant that he is against the action of the respondent canceling his candidature and also debarring him for life time in appearing from the Examination conducted by Railway Recruitment Board without affording opportunity of hearing to him.
7. Admittedly in case in hand the respondents have not alleged mass mal practice. Only one individual was allegedly found indulging in malpractice. Therefore the question in the instant case is whether the principle of natural justice is required to be followed by issuing notice to the applicant and to provide him personal hearing. It is well established that even the candidate selected put in merit list has no vested right to seek appointment against the vacancy against whom select list was prepared. Even the Govt. can cancel the Select List. But in the case in hand as observed above whole selection has not been cancelled only four candidates including the applicant were singled out an their candidature were later on cancelled. Though the respondents called for the expert opinion before cancellation of candidature, but in this process applicant nowhere has been associated. It is no where the case of the respondents that the applicant or the alleged impersonator was caught red handed by the Invigilator during the course of the Examination. Only the decision taken upon them has been conveyed. Admittedly there is no allegation of malafide against respondents, yet this Tribunal has to see whether any prejudice has been caused to the applicant, because by the impugned order not only his candidature for the Examination has been cancelled, he has been debarred from sitting in all Examinations to be conducted by the respondents only in the light if is to be seen that whether well established principles of natural justice has to be applied in case or not. It is held by Honble Supreme Court that an even order having civil consequence must be passed after providing opportunity to the concerned employee. Reliance is placed on Hon'ble Supreme Court in Sahara India (Firm), Lucknow Versus Commissioner of Income Tax, Central-I and another-(2008) 14 Supreme Court Cases 151; Harbanslal Sahnia and another Versus Indian Oil Corporation Limited and others-(2003) 2 Supreme Court Cases 107; Sidheshwar Sahakari Sakhar Karkhana Limited Versus Union of India and others-(2005) 3 Supreme Court Cases 369; and ABL International Limited and another Versus Export Credit Guarantee Corporation of India Limited and others-(2004) 3 Supreme Court Cases 553. All these decisions have a single underlying theme that even a pure administrative act that entails civil consequences shall be addressed with reasonableness and rules of natural justice would require a right of hearing by application of the principle of audi alteram partem. This fundamental breach partakes the character of violation of fundamental right for which the affected party certainly has the most efficacious remedy through an intervention of prerogative writs under Article 226. Principle of natural justice flow from rule which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary precedence that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those right. These rules are intended to prevent such authority from doing injustice.
8. What is meant by the term principles of natural justice is not easy to determine. Lord Summer (then Hamilton, L.J.) in R. v. Local Govt. Board (KB at p. 199) described the phrase as sadly lacking in precision. In General Council of Medical Education & Registration of U.K. v. Spackman1943 AC 627 Lord Wright observed that it was not desirable to attempt to force it into any Procrustean bed and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give a full and fair opportunity to every party of being heard.
9. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression civil consequences encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.
10. The complaint that before passing impugned order, he was not given opportunity to place his case before authority and he may have convinced the respondents and the impugned order may not have been passed. In nutshell, violation of principle of natural justice. He further submitted that on his back the documents were examined and the respondents themselves have come to the conclusion that the applicant has indulged in impersonation, result of which his candidature has been cancelled with further punishment of debarment from appearing in the examinations which is harsh and in violation of principle of natural justice.
11. On the other hand Shri P. Mathur, Learned Counsel for the respondents submitted that the Railway Board has circulated letter dated 9.3.2000 whereby taken a unanimous decision that if any candidate find indulging in malpractice then after got examining his paper and after affording an opportunity of hearing in respect of the defect; final order be passed debarring candidate from appearing in Examination conducted by the Railway Board. In the instant case on verification of documents, it was found that the handwriting of the applicant is not corresponding with the handwritings question paper then the same was forwarded to the Govt. Agency for getting expert opinion. After having the expert opinion a letter dated 7.2.2002 was sent to the applicant calling upon him to appear on 5th August, 2002 at 10.30 a.m. with relevant documents failing which the candidature will be cancelled. It is only after complying with the principle of natural justice the impugned order was passed which was subsequently confirmed by the appellate authority. There is no infirmity in the order and he supported the impugned order.
12. We have considered the averments made by applicant and have considered the submissions made by Learned Counsel for the respondents and perused the record. Admittedly candidature of the applicant has been cancelled by the respondents without asking any explanation from the applicant in this regard. The respondent themselves came to the conclusion that the applicant was involved in fraudulent means in the Examination. Though the respondents have sought expert opinion from the Govt. Agency but all these happened on the back of the respondents. Therefore allegation of arbitrariness has been leveled against the respondents. The respondents may have called the applicant before cancellation of his candidature and heard him and explain the material to be used against him. Since before passing impugned order no opportunity of hearing was granted to him, which is in violation of principles of audi alteram patt\ram. In the case in hand not only his candidature for the examination has been cancelled, he has been debarred in future in appearing in any examination to be conducted by the Respondents Board. The Honble Supreme Court in penthora of judgements has held as under:
13. In view of the above, impugned order dated 1.10.2004 is set aside. Thus, the O.A. is allowed. No order as to costs.
MEMBER (J) MEMBER (A) Sj* ?? ?? ?? ?? 9 O.A.NO.1487/2004