Central Administrative Tribunal - Delhi
Shri Kapil Dev vs Govt. Of Nct Of Delhi on 22 August, 2012
Central Administrative Tribunal Principal Bench OA No.1879/2011 Order reserved on : 13.08.2012 Order pronounced on : 22.08.2012 Honble Dr. Veena Chhotray, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Shri Kapil Dev, S/o Shri Shiv Charan, R/o D-98, Yadav Nagar, Samaypur, Delhi. applicant (By Advocate : Shri Ajesh Luthra) Versus 1. Govt. of NCT of Delhi, Through the Chief Secretary, 5th Floor, Delhi Sachivalaya, New Delhi. 2. Delhi Subordinate Services Selection Board, Through its Chairman, Govt. of NCT of Delhi, F-18, Karkardooma, Institutional Area, Delhi-92. 3. M.C.D., Through its Commissioner, Town Hall, Delhi. Respondents. (By Advocate : Mrs. P.K. Gupta and Shri R.K. Jain) ORDER Dr. Veena Chhotray, Member (A) :
The candidature of the applicant for the post of Teacher (Primary) in MCD in pursuance of a selection process initiated in the year 2008 has been cancelled on the grounds of involvement in malpractices (mismatch of handwriting) in the examination. Challenging the impugned order dated 10.2.2011, the OA seeks the following directions :-
(a) quash and set aside the impugned action of the respondents and
(b) direct the respondents to immediately further process the case of appointment of the applicant for post code 16/08-Post of Teacher (Primary) in MCD and issue necessary appointment orders with all consequential benefits.
(c) If deemed necessary in respect of prayers made above, to obtain the opinion of hand writing expert from any concerned Govt. Institute, like FSL, CFSL etc.
(d) award cost of the proceedings and
(e) pass any other order/ direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
2. The parties are being represented by Shri Ajesh Luthra, learned counsel for applicant and Mrs. P.K. Gupta with Shri R.K. Jain, learned counsel for respondents.
3. The brief facts are that as per the requisition of the user department MCD, the DSSSB had vide an advertisement No.02/08 under the post code 16/08 advertised 1000 vacancies of Teacher (Primary). The applicant had applied under the Unreserved category with the Roll No.01631552. The written examination was conducted on 05.02.2009 and the applicant who had secured 155 out of 200 marks was found to be in the zone of consideration. Accordingly, his dossier was put to scrutiny for verification. On examination of his application form and admit card, certain discrepancies were noted in his signatures . Accordingly, the candidature of the applicant was put in the list of pending cases for verification of genuineness along with similarly other cases.
4. As stated by the respondents in their counter affidavit, in order to look into such matters, a Committee of three Deputy Secretaries was constituted in the DSSSB. The petitioner was also called and the samples of his signatures and handwriting were taken before the Committee. However, these samples were not found to be tallying with the hand writing put up in the answer sheets of the written examination. It is also mentioned by the respondents that the applicant had earlier appeared against the post code 164-165 of 2007. The samples now taken in the presence of the Committee were also not tallying with the hand writing in the earlier examination. Further, there was a mismatch with the signatures appearing in the affidavit filed with the DA before the Tribunal. On these grounds, the conclusion was arrived at that the applicant had procured impersonation and had been involved in the misconduct in the examination. Resultantly, his candidature was cancelled vide the result notice dated 10.02.2011 (Annex.A-1). The relevant extracts are reproduced as below :-
Further selection of following Fourteen candidates (Roll numbers/Sr. No. in select list).who were declared provisionally selected to the post are hereby rescinded, as on physical verification of their signature/handwriting/ thumb impression with exam related documents, these candidates were found involved in malpractice in examination of the post codes or the candidates failed to respond to notices of the Board for appearing before the Committee. Pending result of three candidates (Roll number 01631552, 01618533 and 01620507) are hereby cancelled as the candidates too were found involved in malpractice in examination of the post code. The roll number of the applicant i.e. 01631552 was mentioned in the category of the three candidates whose results had been withheld earlier and now the candidature was cancelled.
5. The OA avers the impugned action to be arbitrary and illegal inasmuch as the applicant who was eligible for the post and had admittedly secured more marks than several others who had been selected, had been denied the appointment simply on certain suspicions. It is pleaded that the thumb impressions given in the examination records and before the Committee had matched. The sanctity of the conclusion arrived at by the so called Departmental Committee has also been questioned on the ground of the said Committee not comprising any handwriting expert, nor any such opinion having been obtained. The violation of principles of natural justice has been alleged inasmuch as a drastic step like cancellation of the applicants candidature had been taken without even issuing any Show Cause Notice and without giving an opportunity to him to defend himself.
6. Shri Ajesh Luthra, the applicants learned counsel would also draw our attention to a communication from the DSSSB in respect of the posts of the Fire Operators under the post code No.003/2009 (Annex.X-1). As per this communication, references have been made in respect of 14 candidates for obtaining opinion of the FSL in the context of inconsistencies observed in respect of signatures and handwriting etc. Besides, the learned counsel would also state that as per the additional affidavit filed by the respondents dated 09.04.2012, the proposal for initiating debarment proceedings against the petitioner has also been approved by the Competent Authority of DSSSB in the file. Further, Shri Luthra would state the present case to be a covered one and cite the decision of the Coordinate Bench of the Tribunal in the OA No.3389/2010 decided on 17.08.2011 (Shri Sushil Kaushik Vs. GNCTD and others).
7. The Senior Counsel Mrs. P.K. Gupta would defend the respondents. The learned counsel would seek to distinguish the present case from that of the OA No.3389/2010 inasmuch as it had involved challenge to an order debarring the applicant therein from appearing in any examination conducted by the DSSSB for the next five years. To counter balance the rival contentions, Mrs. Gupta would refer to OA No.1683/2011 decided on 11.11.2011 (Shri Vijay Kumar Vs. GNCTD & Ors.). This was a case of cancellation of candidature only and as per the Tribunals orders, the decision of the Departmental Committee had been upheld. For want of any allegation of malafide against the respondents authority or against the Members of the Scrutiny Committee, the view taken regarding the discrepancies and the cancellation of the candidature had been upheld.
8. To rebut the contentions of the respondents counsel, Shri Ajesh Luthra, the applicants counsel would also refer to recent decision of the Tribunal in the OA No.3558/2011 (Sandeep Versus GNCTD & Ors.) decided on 23.4.2012. In this case also, there was a cancellation of candidature and the view taken was that the applicant should have been put to notice and given a chance to prove his innocence even by permitting him to bring on record such material as may be relevant like the opinion of the handwriting and finger print expert.
9. Considering the respective submissions and the material on record, we are seized with the fact that such cases have been coming before the Tribunal in which the concerned candidates are challenging the orders of the DSSSB regarding cancellation of candidature coupled with or without the order of debarment of appearing in further examination for a further specified period. It is also noted that different views have been taken in the OAs filed. Apart from the three OAs mentioned in the body of the order, in the foregoing paragraphs, the OA No.1683/2011 (Shri Vijay Kumar Versus GNCTD & Ors.) mentions the OA No.3415/2010 and the OA No.65/2011 decided on 21.07.2011. The OA No.3415/2010 has also been referred in Sandeep Kumars case.
10. Of the cases cited before us, whereas in the OA No.3145/2010 (Sanjay Kumar) and OA No.3389/2010 (Sushil Kaushik), there were orders of debarment also, in the OA No.1683/2011 (Vijay Kumar) and OA No.3558/2011 (Sandeeep), the challenge was only to the cancellation of the candidature and the applicants in these OAs were aspirants for the posts in different departments under different post codes, though all were through different examinations conducted by the DSSSB. It is also noted that the learned Coordinate Benches of these Tribunal have been taking different views. To briefly summarize the view taken in these OAs ;
(i) In the OA No.3415/2010 decided on 21.07.2011, the impugned order dated 27.09.2010 regarding debarment had been quashed with liberty to the respondents to proceed afresh in the matter and pass final orders after putting the applicants to notice and giving them chance to prove their innocence, even by permitting to bring on record such material as may be relevant.
(ii) In the OA No.3389/2010 (Sushil Kaushik) decided on 17.08.2011 while dealing with the challenged order dated 27.09.2010 inflicting the debarment from appearing in any examination to be conducted by DSSSB for next five years, the learned Coordinate Bench had taken a view that the order, infact, seems to have been passed in a stereotype manner without specifying the category under which the alleged mismatch of handwriting fell. Besides, non issuance of Show Cause Notice, the applicant had also not given an opportunity to defend himself. The conclusive view taken was that in case of any doubt with regard to the handwriting, signature or thumb impression of the candidates respondents should have referred the matter to the Expert on the subject, namely, CFSL or some other institute to find out the truth. Accordingly, while quashing the impugned order, liberty was given to the respondents to pass fresh order in accordance with law, after giving Show Cause Notice and considering the reply and if need be, after referring the matter to the Expert on the subject.
(iii) However, diametrically different view was taken in the OA No.1683/2011( Vijay Kumar ) that the case of cancellation of candidature for the post of Grade-IV (Dass) under the post Code 38/2008, a distinction had been made between the imposition of debarment and mere cancellation of candidature. The learned Coordinate Bench had taken the view that A regular Committee of senior officers of the Board scrutinized the answer papers and other documents and, prima-facie, came to a conclusion that the handwritings/signatures did not match. There is no allegation against the respondent authority nor against the Members of Scrutiny Committee. Further, it was mentioned we are conscious of the fact that the respondent Board has the onerous responsibility of conducting numerous tests and ensuring safe guards against impersonation and cheating. It would be too much to ask them to obtain expert opinion in each case of mismatch of handwritings. With these observations, the OA had been dis- allowed.
(iv) OA No.3558/2011 (Sandeep) had been decided on the lines of the OA No.3415/2010. The learned Coordinate Bench had stated that if the order as impugned is to be reiterated, the same shall be speaking and containing reasons for returning the defence, if any, protested by the applicant.
11. Considering the facts and circumstances of the these precedent cases cited before us, we are of the view that in order to ensure uniformity in the matter, the issue needs to be considered by a Larger Bench. Accordingly, the following reference is framed for consideration :-
In matters of cancellation of candidatures on grounds of involvement in malpractices by discrepancies in handwriting whether reference to the handwriting expert is mandatory or respondents can take a decision after due consideration by the Departmental Committee.
Whether a distinction needs to be made in this context between simple cancellation of candidature or the candidature cancellation coupled with debarment from appearing in the examinations for a specified period.
12. The matter is submitted before the Honble Chairman for referring it to the Larger Bench.
( Dr. Dharam Paul Sharma ) ( Dr. Veena Chhotray )
Member (J) Member (A)
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