Central Administrative Tribunal - Kolkata
Soubhik Naskar vs Staff Selection Commission on 10 January, 2018
o.a. 1795.2016 CENTRAL ADMINISTRATIVE TRIBUNAL LIBRARY-
CALCUTTA BENCH Date of order:
No. O.A. 1795 OF 2016 present: l-lon'ble Ms. Manjula Das, Judicial Member Hon'ble Dr. Nandita Chatterlee, Administrative Member Shri Soubhik Naskar, Son of Subrata Kumar Naskar, Aged about 30 years, un employed youth, Residing Srijan Abasan, 48/819, Dr. S.P. Mukheriee Road, Dum Dum cantonment, Kotkata -700 028. Applicants Vs.
1. Union of India through the Secretary to the p.9?t Ot India, Ci \ NohBioCkf New elhilfl1001 '<__At .J .'
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2. Th&Regio\1atbctdZ
-, StaffiSeled(01d0mmI0n (Eate n Region)1 ! Nizam palace0i _MSp6UIl4mY (81h Floor), 234/41 AJC4bseROad, s e" 1 Kolkata - 700020.. •i / A,
3. The prinbiIChiefc0mis0tmt of Income Tax, est-Beflfga & Sikkim, Aayakar Bhawan, P-7, Chowringhee Square, Kolkata - 700 069.
Respondents Mr. S.K. Dutta counsel For the Applicant Mr. S. Paul, Counsel For the Respondents ORDER..
Per Dr. Nandita ChatterLeeAdm5Q Member:
Heard Ld. Counsel for both sides and examined the documents available on record.
This Original Application has been filed under Section 19 of the ii.
Administrative Tribunal 1985 seeking the following reliefs:-1
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o.a. 1795.2016 "a. An order quashing and/or setting aside the impugned order 10th May, 2016 holding the same as arbitrary, illegal and dated against the principles of equity and justice or as to this Hon'ble Tribunal may seem fit and proper.
An order quashing and/or setting aside the impugned communication dated 7.12.2012 which should be 7.12.2016 and the impugned notice dated 7.12.2016.
An order directing the respondents to grant all consequential benefits to the applicant.
An order directing the respondents to produce/cause production of all relevant records.
Any other order or further order/orders as to this Hon'ble Tribunal may seem fit and proper."
The case of the applicant as submitted by his Ld. Counsel, is that Ill.
nemployed youth belonging to SC Community, had the applicant, an u A #tAfl I .' (CGLE), zu appeared in the combineGradu ,1 was included in the after having qualified in'Tier lan
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successi;uli ca nd i d a tes t iiSt4 0 5ubsequently, however1 to the tter s qck and surprise of the applicant 4~\ / 0's.inclUding the Roll No. of the a list of withheld candidateS1with'thr applicant was published in tFie webite ofesp~ndent No.2 on 30.3.2013.
That, the applicant made attempts to obtain the reasons for such withholding of result through RTI but that the reply given was vague.
That, the applicant was served with a memorandum dated 4.6.2013 in which certain allegations were made against the applicant of, resorting to copying in the examination in association with other candidates.
That, the other candidates, whose results have been withheld, had also been served with similar show-cause noUce/mem0rda That, the applicant replied on 17.6.2013 to the show-cause notice dated 4.6.2013. Not having received any communication subsequent to his reply to the show-cause notice, the applicant approached the Tribunal by filing 2 o.a 1795.2016 O.A. No. 350/00801/2014. Prior to admission of the said O.A., the applicant was served with copy of the order dated 29.7.2014 whereby his candidature in CGLE-2012 was cancelled and he was debarred for a period of three years from the Commission's Examination w.e.f. 16.9.2012.
That, thereafter the applicant prayed to withdraw the earlier original application bearing No. 801/2014 while praying for liberty to file a fresh application challenging the respondents order dated 29.7.2014; the prayer was subsequently allowed by the Tribunal.
That, in the show-cause notice, no particulars of evidence had been furnished as to the malpractice/unfair means allegedly adopted by the applicant and as the candidate in collusion with whom he was alleged to have resorted in the malj*actice- was sitiihg away from him, such malpractice was not 6)sed4n a'n levi enceArnn he meanwhile, the
- .'% •1 C applicant had also appearedinCGLE-20T3,hence his Lbarment for three , law giOnIthe fact fa)the same has been years w.e.f. 16.9.2012aS bad, in given retrospective effect. Hence, the appltcaM.&ice1agaifl approached the Tribunal with O.A. No. 35W01129WhiOh%5 disposed of by the Tribunal by order dated 3.9.2014 by passing the following order:-
"5. Considering that, impugned order dated 29.7.2014 stands set aside and quashed. However, quashing of the impugned order will not debar the Staff Selection Commission to issue a fresh show-cause notice mentioning the details particulars of the name and other particulars of Shri G. Mondal as mentioned in the order impugned. So that the applicant may file appropriate reply to the show-cause notice. It is made clear that we have not gone into the merits of the case. All points are kept open for adjudication by the concerned respondents. The respondents are at liberty to issue a show-cause notice afresh giving the particulars of allegation within a period of 2 weeks and in the event of service of show-cause notice the applicant will file a reply to the show cause notice within a period of two weeks and in the event of service of show-cause notice the applicant will file a reply to the show cause notice within a period of two weeks thereafter and the respondents shall consider he same and a reasoned decision to be communicated to the applicant within two weeks from the date of taking such decision.
6. The O.A. is disposed of accordingly. No order as to costs."
o.a. 1795.2016 Thereafter, in compliance with the order of the Tribunal, the applicant immediately preferred a representation asking for certain documents on 20.10,2014 from the respondent authorities. That, the applicant received a communication dated 6.1.2015 whereby some theoretical method of determination of use of unfair means was supplied to the applicant and that such method was totally vague baseless as well as arbitrary.
That, the applicant thereafter preferred a representation dated 6.2.2015 in response to the communication of respondents dated 6.1.2015. That, in the meantime, the applicant has received an appointment order in the Bank of Baroda but for the purpose of taking up appointment in Income Tax Department od4he basis of an boff& %of appointment issued bank authorities subsequent to CGLE-2013 th'e £ ;-t4-i 9\nk authorities, the for an NOC. Upon accepting 5fhisjesignafiornby the 5-.. ..",/,, \\\y applicant joined the income Tax 'Depattmèn.Ofl 9.3.201 Order dated 10.5.2016 That, the applicant was'therefter servdwithfl, of the respondent authorities whereby n~/dnly his candidature of CGLE-2012 was cancelled but he had also been retrospectively debarred from appearing in the Commissions Examination for a period of three years from 16.9.2012 which meant that he would be also losing his job in the Income Tax Department consequent to CGLE, 2013. That, the respondent authorities also issued a communication dated 24.10.2016 proposing to cancel his appointment and asking for his explanation forthwith.
The applicant further approached the Tribunal by filing O.A. No. 1657 of 2016. As the Tribunal did not grant him any interim order to stay the communication dated 24,10.2016, the applicant approached the l-lon'ble 4 o.a. 1795.2016 High Court at Calcutta by filing a Writ Petition. The Hon'ble High Court quashed the termination notice dated 24.10.2016, directed the applicant to make a representation against the said communication dated 24.10.2016 and the respondent authorities to decide on the same. That, the applicant filed a representation dated 1.12.2016 but the Respondents send him a termination order dated 7.12.2012/7.12.2016 (A-26 to the O.A.).
The applicant thereafter withdrew O.A. No. 1657 of 2016 on 21.12.2016 with liberty to file fresh O.A. challenging the communication dated 24.10.2016 (A-24) as well as termination notice dated 7.12.2016 (Annexure A-26 to the O.A.); hence the present application.
The Respondents per contra, have argued that the applicant was IV.
issued a fresh show cause -notice dated . 8.10.2014'(Annexure R-ll to reply) i. t-- - IN 1 / 4, in accordance with TribSiial's;àrder dated 3ff9201 4t,Thereafter, in response ) to the said Show Cause Notie,.th1apPliàant
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ought:some documents vide .1 ,•'\\) his representation dated 20.102O14(AnneXUre R-ill-to reply) which was 'drY also furnished to himas available with tRe'Cbmmission vide their office letter No. 5/11/2013-Nom. Dated 6Y1.2015. (Annexure R-IV to reply) and disposed of his representation dated 6.2.2015 (Annexure R-V to reply) that prayed for dropping the proceedings against him in the matter. That the representation dated 6.2.2015 made by the applicant praying for dropping the proceedings against him in the matter had been carefully considered by the Commission, and the Commission found that the method of Post-Exa mi nation Scrutiny and Analysis conduct by 1BPS, in order to determine the use of unfair means, are based on the conclusion arrived at by the high level of matching of answer responses in the OMR answer sheets which are improbable, thereby indicating resort to unfair means. Matching of answers of the applicant in paper-i of Tier-Il of Combined o.a. 1795.2016 Graduate Level Examination, 2012 with the other candidates Shri Gopal Mondal have been recorded by the Respondents as under:-
Tier II Total Match Right Right Wrong Blank Blank (Paper-I) match Wrong match Match Test - I 34 12 02 20 Test - Il 48 26 10 12 The Commission, in view of the high level of matching of answers/ responses discovered by Post-Examination Analysis between the applicant and Shri Gopal Mondal in Paper I of Tier II of Combined Graduate Level Examination, 2012, decided to proceed with cancellation of candidature of the applicant for Combined Graduate Level Examination - 2012 and also re-imposed debarment on him from appearing the Commission's examination for a period ofahtee years,with &ffectfrom 16.9.2012 I.e. the date of Examination issued a Speaking Order bearing No. C-18012/7O/2014;Adnin Dated4O.5.2016.
10 The applicant filed O.A. No. 909 of 2O1'again á(4Jaiaking ttd r dated 10.5.2016 c issued by the Commission. In view of the reasoned order dated 10.5.2016 issued by the Commission debarring the appIicnt for a period of three years with effect from 16.9.2012 to 15.9.2015, the applicant was not eligible for appearing in the the CGL Examination, 2013 as the date of examinations of CGL Examination, 2013 was within the stated debarment period. Hence, his dossier was sought back from the Department of Income Tax with a request to withdraw his appointment order, if already issued vide this office letter No. 0310612015-Exam.1I dated 16.6,2016 (Annexure R-Vl to reply).
Pursuant to the reasoned order dated 10.5.2016 issued by the Commission, Department of Income Tax issued letter F. No. 5E/9/Apptt. Of TA12007-08/Part-X/15182 dated 241h October, 2016 to him calling for his explanation as to why his appointment as Tax Assistant in the Income Tax / 6 on. 11952016 Department should not be cancelled in view of the order dated 10.5.2016 issued by the Staff Selection Commission. Subsequently Notice of termination bearing S. No. 5E/9/Apptt. Of TA/2007-2008 Part-X/15541 dated 241h October, 2016 was issued by the Income Tax Department to the applicant. Thereafter the applicant withdrew O.A. No. 00909/2016 upon being so permitted by the Tribunal. The applicant further, filed O.A. No. 1657/2016 challenging both the orders of debarment issued by the Commission as well as the termination Notice issued by the Income Tax Department. As he failed to obtain any interim relief from the Central Administrative Tribunal in O.A. No. 1657/2016, he approached the Hon'ble High Court, Calcutta vide AST No. 321 of 2016, praying, inter alia, for tg interim stay of the order dated 10.5.2016 issie&by'the Commission as well ti. ,'•r>a. -
as the Termination Notice of th0e Income Tax Department dated 26.10.2016.
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The Hon'ble High Court vide ltgoider d1eW25.11.201t (Annexure R-Vll) directed the responde"nts which;readsasbndbr:- -I , r'jkfrj- I In these circumstañcè%:the order dated26th Odtober, 2016 which is V notice of termination"df'service, issued uhder Rule 5(1) of the said Rules, is set aside.. 'The petitioners viIl'sdmit his reply to the
-I- / show-cause notice, dated 24 flctobei, 2016 within one week from today. The respondent authoritierV1ii act on the reply to the show-cause notice within one week after it is submitted to them. The authorities will communicate to the petitioner any order which they may pass after the submission of his reply. However, they will not act upon the order, if it has an adverse effect on the Petitioner, for two weeks after it is communicated to the Petitioner. The other issues raised in this petition may be raised before the Tribunal in the pending original application In compliance with the order dated 25.11.2016 passed by the Hon'ble High Court, Calcutta , Income Tax Department issued Notice of Termination of service vide F. No. 5E/9/Apptt., of TA/2007-2008/Part-X/18604 dated 7th December, 2016. Subsequently the applicant withdrew the O.A. 1657 of 2016 and filed the instant O.A. No. 1795 of 2016 afresh against the order dated 10.5.2016 of the Commission and the Termination Notice dated 7
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1, o.a. 1795,2016 7.12.2016 issued by the Income Tax Department.
The singular issue that is required to be decided upon in the context of the instant application is, as to whether, the order dated 10.5.2016 of the respondent authorities (Annexure "A-23" to the O.A.) can be held to be arbitrary, illegal and against the principles of equity and justice and whether the consequent order dated 7.12.2016 (issuance incorrectly dated as 7.12.2012) deserves to be quashed on said grounds.
This instant matter has been taken up in various judicial fora including applications made before the Tribunal in O.A. No. 1129 of 2014, withdrawn O.A. 909/2016, withdrawn O.A. No. 1657 of 2016 and thereafter sibje'ct matter of adjudication filing of O.A. No. 1795 of 2016 whichis the ' before us. l):X Eti \ The Ld. Counsel for:the applicant has argued that,.given the appointment order dated 28.9.20154Annex6reA20tothe O.A. )tthe respondents, while / debarring him vide their O"rdedied 10 .5.2t((Anfle/ure A-23 to the O.A.) ' 7 from appearing in the Commission's examination fbr a period of three years w.e.f, 16.9.2012 and subsequent order of the respondent authorities dated 7.12.2012/7.12.2016 in consonance to the Hon'ble High Court's order dated 25.11.2016 cannot be legally upheld as because he was permitted to appear at the CGLE of 2013 by the respondent authorities and hence the respondent authorities cannot cancel his appointment based on an examination which has not been called into question. 8
o.a. 17952016 Accordingly we refer to the appointment order dated 25.9.2015 which is reproduced below:-
GOVERNMENT OF INDIA OFFICE OF THE PRINCIPAL CHIEF COMMISSION OF INCOME TAX, WEST BENGAL & SIKKIM, AAYAKAR BHAWANI P-7, CHOWRINGHEE SQUARE, KOLKATA - 700 069 Se/9/aPPTT. OF ta/2007-08/pTVIII/10125 Kolkata, the 28th Sept.2015 MEMORANDUM Soubhik Naskar (SC) (D.O.B 13.3.1986), Sb. Subrata Kumar Naskar, Srijan Abasan, 18/8/9, Dr. S.P. Mukherjee Road, Dum Dum Cantonment Kolkata - 700 028, a candidate sponsored by the SSC (Eastern Region) on the basis of Combined Graduate Level Examination, 2013, is hereby ppointment to the post of Tax informed that he/she has beenselected1foça Assistant in Pay Band-I (Rs. 5126020,2061i?rade Pay of Rs. 2,400) plus usual allowances as mayA3'e sanctidhedtby thSGo'ernment of India from ¶/' ¼4! "
time to time. The termsand cadditiOnsifOthe appointment are detailed below:-
If he/she accepts the offer on thOse terms and conditions, he/she should report himself / herselVfor dutytO 113'Ad&)joirci Corr1hiision of Income Tax, rs& s.)., ta1¼16RBr tF No,A 14), Aayakar Headquarters (Pe. 0th Bhawan, P-7, Chowriñghee.SqtaEY4,90 1 0 9 October, 2015 failing whichthis 1/ offer of appointment shall be considered as cancelled.
7-, No travelling or other allowances_wilVbe'paid to the appointee for obtaining the medical or other cèrtificatest1entioned below or for joining the post.
TERMS AND CONDITIONS OF THE SERVICE
1. The appointment is purely provisional and is subject to the satisfactory verification Caste, the character and antecedents report by the respective administrative authorities. In case of any negative verification, the services would be terminated without assigning any reason or notice.
2.FORM A & FORM A-I :- The appointment subject to the production of Medical Certificate of fitness in the prescribed FORM 'A' along with statement in FORM A-I (COPIES ENCLOSED) from any of the following authorities:-
In the case of male candidate:- A Civil Surgeon or a District Medical Officer or a Medical Officer of equivalent rank.
In the case of female candidate:- A Registered female medical practitioner possessing a medical qualification included in one of the schedules to the Indian Medical Council Act, 1956 (102 of 1956), Indian Medical Central Act, 1970 and Homoeopathy Central Council Act, 1973.
o.a. 1795.2016
3. FORM B:-
Two certificates of good character in the (enclosed) prescribed fprm (Form B) from two Gazetted Officers of the Central or State Government or one such certificate from a Stipendiary Magistrate, not related with the appointee by birth or marriage. Original certificates in proof of academic and other quaIificatiOn date of birth and caste certificate certificate of PH in case of PH category, pension papers in case of Ex-serviceman and Registration card of Employment Exchange (in original)shOUld be produced at the time of joining. Attest copies thereof should also be submitted.
FORM C:- The appointee must furnish a statement in the prescribed form (Form ci) (enclosed) giving full particulars of his previous employment if any for the last three years under the Government of India or under any State Government.
FORM G:- Before joining the appointee must give a declaration in the prescribed form (enclosed) to the effect that he/she does not have more than one wife/husband living.
FORM H:- A certificate in the enclosed prescribed from will have to be produced by an appointee, nsUpPod of the claim, if any, for being treated as a member Sd1btkiied Cte/? scheduled Tribes & OBC Community.
The appointee sho1IJ notfu?ni!iS orre t inf6r.mation on any point, .a.
r' -e which may consider him/her hable,iodisçj1inary actipn.
jhas f6ll right to withhold any It must be noted.fat the'4if\ Jo eptin Pivate Business and application from the appointeefoReP Industrial Firms and shall'havralso full discrlionto forward or to withhold any application for appointthent in other Go'erdiMnVffice5.
The appointee will be liable tobetransferted anywhere in West Bengal which includes Andaman & NicdbarIsland1d Sikkim and has to abide by the Rules governing the Central Govt. Employees and amendments thereof from time to time.
The services of the appointee are also liable to be terminated on one month's notice on either side or without notice If the appointee is a subject of Nepal or a resident of Union Territories of Pondicherry, Daman andDiu or a resident of Andaman & Nicobar Islands or of India origin repatriated from Ceylon/Burma and migrated to India or of Indian Origin migrated from Kenya, Uganda and the United Republic of Tanzania, a certificate to that effect must be produced at the time of joining.
The appointee will have to take an Oath of Allegiance to the Indian Republic and it Constitution at the time of appointment.
(DEBASHIS MAJUMDAR) JOINT COMMISSIONER OF INCOME TAX, HQRS. (PERS. & ESTT.)I KOLKATA (It>-
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o.a. 1795.2016
FOR PRINCIPAL CHIEF COMMISSIONER OF
INCOME TAX, (WEST BENGAL & SIKKIM)
The following are highlighted therefrom:
The appointment is purely provisional and is subject to the satisfactory verification Caste, the character and antecedents report by the respective administrative authorities. In case of any negative verification, the services would be terminated without assigning any reason or notice."
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"The services of the appointee are also liable to be terminated on one month's notice on either side or without notice."
It is seen that the applicant has accepted the said terms and conditions. Having done so he is, at a later stage, estopped from challenging the said terms and conditions at any forum.
VII. Next, we refer to theresfrot(de'flt'S, order dated 10.5.2016 so 't.-
I 0 impugned in the instant app cation, whichisrepro.duCed below:-
"No. C-i 8W 2f70I20i4-AdnJ18 4 1V oaa;\om May, 2016 :
ORDf'R,
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WHEREAS, Shri Soubhik - Naskar, sonhShriSubrata Kumar Naskar, residing at Srijan Abasati 48/13/9 Dr,S.RvMdkherjee Road, Dumdum Cantonment, Kolkáta, 'West Bengal 2106 028, who was a candidate(with Roll Nd>.4410509595)'of,Combined Graduate Level Examination, 2012, was issued - a-fresh Show-Cause Notice dated
8.10.2014 in compliance with the ORDER(ORAL) dated 3.9.2014 of Hon'ble Central Administrative Tribunal, Calcutta Bench in O.A. No. 350/01129/2014 furnishing therewith particulars of allegation and directing him to show cause as to why his candidature for the aforesaid examination should not be cancelled and he should not be debarred for a period for three years with effect from 16.9.2012 from appearing in examinations conducted by the Commission on the grounds of his indulgence in unfair means in association with other candidate Shri Gopal Mondal (roll No. 4410549295C son of Shri Ajit Kumar MOndal ViII-ghola Pa- Joynagar, P.S. - Ghatal, Paschim Medinipur, West Bengal-721 212 of the same examination, latest by 22.10.2014 vide this office Memorandum No. 5/1/2013-Nom. Dated 08.10.2014; AND WHEREAS, Shri Soubhik Naskar in response to aforesaid Memorandum dated 8.10.2014 sought documents concerning sitting arrangement, inspection report, evidence and report of expert and report of post-examination scrutiny and analysis vide his representation dated 20.10.2014 addressed to Regional Director, Staff Selection Commission, Eastern Region, Kolkata.
AND WHEREAS, Shri Soubhik Naskar was furnished vide SSC o.a. 1795.2016 office letter No. 5/1/2013-Nom. Dated 6.1.2015 the explanation/analysis of the Commission contained in its letter No. 13/88/2014-C1(1) dated 17.12.2014 as reproduced below by way of disposal of his aforesaid representation dated 20/10/2014:
In the Multiple Choice Objective Type Test used by SSC in Tier II of Combined Graduate Level Examination, 2012, there are 4 choices/alternative answers in each question out of which only one is right answer in each question and the other three are wrong answers. As far as possible all choices are made plausible enough such that in the event that the candidate does not happen to know the correct answer he would select one of three wrong answers by chance. Thus, the probability of picking a particular wrong answer is 1 out of 3 or 1/3 or 0.33. Similarly, if the other candidate of the pair also does not happen to know the right answers to the same question, he would also happen to select on the 3 wrong answers. Therefore, the occurrence of one question with identical wrong answers by a pair of candidates will be 1/9 = (1/3)2 = (0.33)2. Similarly the probability of a pair of candidates having 2 questions with identical wrong answers would be (0.33)2 multiplied by (0.33)2 = (0.33). If it is continued in the same way, the probability of the pair making wrong answers to 6 questions will be (0,33)12 I.e. 0.00000017. the probability of making wrong answers to 12 questions will be (0.33)24 I.e. 0.0000000000027: .lt means that one can be certain that such an event canno,t bbbur just bc'iiande.
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4. AND WHEREAS, the Coñhiiibn f4'that in case of the malpractices induld iri"by)thd"catdidats , \through Bluetooth technology, such candidates hormaliy.receive answers through hidden wireless device dfl theii b6d hidh are very difficult to detected by invigilation staff' a the fincPihk candidates have advance arrangernnt fngs ge{ the question paper solved through experts ih>vanous s6bjects\and sf \S transmit the right J answers to various candidates who -have1rranged in advance to receive such answers.
AND WHEREAS,'the Commissicfi, also finds from many other cases that some candidates even come to take examination with chits' having right answers procured by them a few minutes before the close of gates of examination venue and that such modus operandi has been repeatedly documented by investigating agencies in which cases such candidates have been caught many a times and FIR registered against such delinquent candidate.
AND WHEREAS, the Commission also finds from experience that it is very difficult to detect such small electronic devices and consequently difficult to collect concrete evidence to back the charges, having been left with the only possible method to detect indulgence in organized cheating through post examination analysis which is essential to ensure that cheaters and fraudsters are not able to enter Government service.
AND WHEREAS, further representation dated 6.2.2015 made by Shri Soubhik Naskar praying to drop the proceedings against him in the matter, has been carefully considered by the Commission, and the Commission finds that the method of post-examination scrutiny and analysis applied in the instant case, in order to determine the use of unfair means, are based on the conclusion arrived at by the high level of matching of answer responses in the OMR answer sheet which are improbable, thereby indicating use of unfair means. Matching of 12 0.8. 1795.2016 answers of Shri Soubhik Naskar in Paper I of Tier II of Combined Graduate Level Examination, 2012 with the other candidate Shri Gopal Mondal are as under:-
Tier II (Paper Total Match Right Right Wrong Blank Blank
-I) match Wrong match match Test! 34 12 02 20 Test II 48 26 10 12 AND WHEREAS, the Commission, in view of the high level of matching of answer responses discovered by post-examination analysis between Shri Soubhik Naskar and Shri Gopal Mondal in paper I of Tier II of Combined Graduate Level Examination, 2012, has decided to proceed with cancellation of candidature of Sri Soubhik Naskar for Combined Graduate Level Examination 2012 and to debar him from the Commission's examination for a period of three years, with effect from 16.9.2012 I.e the date of examination of Tier II of Paper I; NOW, THEREFORE, in compliance with the Order (Oral) dated 3.9.2014 of Hon'ble Central Administrative Tribunal, Calcutta Bench in O.A. No. 350/01129/2014,Shri, ,Soubhik Naskar, son of Sri Subrata Kumar Naskar, is herebyinformed tha'tFiis candidature for Combined Graduate Level Examintion20f2jh1'skbeenan'telled and he has been debarred from apperiig in4e\Oor rlLn'sIxa?riinations for a period of three years with ffect .irm' date of holding of V Tier II of the said examination-- "-- r --ic t T7n S- 9' Z1) ,.1r(tthlianoyopaonyay) I RegionaTlDiretor/SSC(ER), r Kolkata"
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- _, A fresh show-cause notice had been issued on 8.10.2014 in compliance with the order dated 3.9.2014 of the Tribunal in O.A. No, '1129 of 2014. The applicant had sought for certain documents vide his representation dated 20.10.2014 to which the respondent authorities, on 6.1.2015, inter alia, provided the analysis of the method of determination of means of unfair means and copy of attendance sheet to him. The applicant made a further representation dated 6.2.2015 by which he sought for more information with special focus on the siting plan but did not at any stage refute objectively the principle of the statistical method adopted to determine the incidence of adopting unfair means in CGLE, 2012.
The respondents in their reply, have referred to the validity of the
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ø.ã. 1795.2016 scientific /statistical method while establishing the case of unfair means has been tested in the following judicial forums:-
The Hon'ble High Court of Patna in its judgment dated 3.4.2012 stated that the in Civil Writ Petitiofl No. 618512008 methodology/formula developed by 1BPS is based on purely arithmetical calculation and no fault can be found against the said formula.
The fact that this manner of indulging in malpractices is rampant has been accepted by the Hon'ble Supreme Court in its recent judgment dated 15,6.2015 in Tanvi Sarwal v. CBSE Writ Petition (Civil) No. 298/2015 while annulling the All India Medical and Pre-Dental Examination, 2015, conducted by the Central Board of Secondary Examination.
In the malpractices such as this, which happen through Bluetooth and latest technological gadgets, it is not necessary for candidates to be sitting next to each other or in one room or within one venue or even in one city. The candidate indulging in such malpractices may be sitting in different cities in different venues and receiving answers through Bluetooth devices. .-
I In LPA 155/2013 in.the case'biVarun Bhardwaj v. State Bank of 'tf PoC Examination Analysis India and others'-1n sirnliar 'cbie conducted by IBI% fo dttir1da tiont'4ot unfair means by ble 'High Court of Delhi candidates during:examinatiofl thetl-Ion d decided on 24.11.2015 dsf5iiWs:k"4 E "In the present case, .thèpatjerhwhiCh- emerg d showed that the fn?41ers/matched with some appellant's results in/àt o other candidates vho alS'o apearedin4heMb Delhi centre. On further scrutiny, the reasonbleheps of the suspicid>1VQ'as strengthened by the manner of his attemptihg the answerCjhese in the opinion of the Court, were sufficient basis for SBkto66nclude that unfair means had been employed and withhold his result. The direction sought are, therefore, unavailable in exercise of judicial review discretion under Article 226 of the Constitution. As a result, this Court finds that the impugned judgment and order of the learned Single Judge does not call for interference. The appeal is, therefore, dismissed with any order as to cost."
any decision As the applicant or his Ld. Counsel has not cited before US of the Hon'ble Apex Court to the contrary and which may serve as ratio decidendi in this matter, we would be guided by the decision of the Hon'ble High Court at Delhi that the "direction sought are unavailable in exercise of judicial review discretion underArticle 226 of the Constitution."
The applicant had also raised the issue of jurisdiction when he had VIII.
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o.a. 1195.2016
claimed that his case of termination should not be made under CCS (Temporary Service) Rules, 1965 but that it can be effected only after following the procedure enumerated in CCS (OCA) Rules, 1965 as he has been appointed against a permanent post. It is evident from his appointment letter, however, that his appointment was purely provisional. His service as provisional appointee was liable to be terminated on one month's notice or without any notice and that his appointment was subject to verification of the character and antecedent report of the respective administrative authorities. Hence, the service of the applicant is governed by CCS (Temporary Service) Rules, 1965, his appointment being purely of a provisional nature.
IX. It has been alleged that the principles t6frjustice were denied to the J 4CTP a applicant. The administrative 4uthoñU s,,n~hkmeIy,/\fh`erevenue authorities, were guided by the SSC, t--i \ to conduct the r . 'dl - I examination and to make recommendations to the revenue authorities *L which is the requiring body1in this regard. On had debarred him consequent to a process'ththhad Eimkted as on 4.6.2013, it is nobody's case that the applicant was of the fact that he was under
a cloud.
Though the Tribunal had quashed the notice on 4.6.2013, the respondent authorities were given liberty to issue a fresh show-cause notice which they did on 8.10.2014. The applicant was perfectly aware that the process against his resort to unfair means was alive during the period that followed 8.10.2014 as because he had himself responded to their notices at various points of time thereafter.
Hence, the applicant was never denied the principles of natural justice;
the applicant himself had accepted the terms and conditions of his 15
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o.a, 1795.2016
appointment stating that such appointment was provisional and subject to verification of antecedents and he furnished no objective and scientific grounds to question the results of the statistical analysis or the scientific principle adopted. Regarding his insistent request for the sitting plan in the examination hall, it is noted in deference to the findings of the Hon'ble Courts that in the malpractices such as this, which happen through Bluetooth and latest technological gadgets, it is not necessary for candidates to be sitting next to each other or in one room or within one venue or even in one city.
The applicant has nowhere responded to the contents of the show-cause notice; the entire delay hence cannot be attributed to r, respondents, who were awaiting receipt of théreasoned reply which was never submitted by the aplicmnt 4 The applicant, having beétãware of;lhe entire ongoIng process against , when he left his his candidature in CGiE, 2Oir(4alcUlatedJSk Officer's job in a Nationalised 'Bank to repeat6dli$eek appointments as an Income Tax Assistant.
in our considered view, the respondent authorities have carried out the instructions of all the judicial fora; the analysis of unfair means is based on a scientific principle which has withstood judicial scrutiny; the applicant has been given opportunity at every stage to defend his case and the applicant had accepted voluntarily, the terms and conditions of an appointment order which was purely provisional, which was liable to be terminated at short notice and which actually called for verification of antecedents. It is nobody's case that the applicant was not aware of these proceedings against him. Hence, as natural justice has been meted out to him on all occasions and the respondent have ensurSfair and proper administration3..16
o.a. 1795.2016 of their Rules, the allegation of the impugned order being against the principles of justice does not hold water.
It is also seen from the reply of the respondents that show-cause X. notice of 4.6.2013 was served on all the three candidates including the applicant to explain why candidature should not be cancelled and why debarment should not be issued on ground of adopting unfair means.This has been admitted by the applicant in para 4(i) of the application. As equal treatment have been meted out to all candidates with fairness and impartiality and the applicant or his Counsel has not been able to produce before us a single order or judicial pronouncement whereby the said debarment was struck down by any other judicial forum, the conduct of the respondents and their decisions cannotjDe heldguilty of being against the Z?conong what is fair and principles of equity thardemt \ right.
Pk Upon a reasoned analysts of..thesubmissiOns made documents placed,
- ' Y h)it W\ / pleadings rendered and redords annexed, we cohclud6 as follows:-6
The Respondents have acted .*i thinkihe if5rimework of extant Rules and hence their actions cannot be held as illegal.
The actions of the respondents, having adhered to Rules and being in compliance of all judicial decisions cannot be alleged to be arbitrary.
At all stages, natural justice was accorded to the applicant to respond.
The applicant was totally aware of the proceedings and possible implications.
All candidates who have resorted to unfair means have been treated similarly hence the principles of equity has not been violated in this case.
The scientific principle behind the statistical analysis have withstood judicial scrutiny and has support in judicial pronouncement of the 1-lonble 17 0.3. 1795.2016 Apex Court.
XII. The applicant, therefore, has not been able to prove illegality, arbitrariness and violation of principles of natural justice and equity; hence, the O.A. fails to succeed and is dismissed on merit. Parties will bear their respective costs.4
(Dr. Nandita Chatterjee) (Manjula Das) Administrative Member Judicial Member sP