Punjab-Haryana High Court
Nitin Tyagi And Others vs Union Of India And Others on 28 April, 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CWP No. 7385-CAT of 2011
Date of Decision: April 28, 2011
Nitin Tyagi and others
...Petitioners
Versus
Union of India and others
...Respondents
CORAM: HON'BLE MR
MR. JUSTICE M.M. KUMAR
HON'BLE MR
MR. JUSTICE T.P.S. MANN
Present: Mr. D.S. Gurna, Advocate,
for the petitioners.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
M.M. KUMAR,
KUMAR, J.
1. The instant petition has been filed under Article 226 of the Constitution against the order dated 3.3.2010 (P-8) passed by the Chandigarh Bench of the Central Administrative Tribunal (for brevity, 'the Tribunal'). Having lost before the Tribunal some of those candidates have approached us who had taken the written test for engagement of apprentices for the year 2007-08. The written test was conducted on 25.5.2008. The petitioners, who had participated in the test were declared qualified on 15.6.2008 and were placed on the provisional panel for engagement of apprentices for the workshops at Jagadhri and Kalka, subject to passing of medical examination. One un-successful candidate, namely, Shri Neeraj Walia filed O.A. No. 433/HR/2008 before the CWP No. 7385-CAT of 2011 2 Tribunal for quashing the result which has announced the selection of the petitioners. The prayer made in the said original application was to get the evaluation in respect of the written test conducted by some independent agency. On 10.6.2009, the Chief Workshop Manager, Jagadhri Workshop, cancelled the panel after obtaining approval of the competent authority because serious irregularities and violations in the conduct of selection were detected by the Vigilance organisation of the respondent Railways. According to the aforesaid order de novo selection from the stage of written test is to be conducted (P-7).
2. Aggrieved by the order dated 10.6.2009 (P-7) the petitioners filed O.A. No. 472/HR/2009, which has been dismissed by the Tribunal. It is appropriate to mention that there are 12 irregularities listed in para 9 of the impugned order of the Tribunal which constitute the basis for cancelling of the written test. The first five of them are reproduced hereunder to show how the sanctity of the written examination in question has been vitiated and that the order passed by the Chief Workshop Manager, Jagadhri Workshop, cancelling the panel would be sustainable:
"(i) No signatures of invigilators were made any where on the question papers-cum-answer booklets during examination on any examination centre.
(ii) As per centre-in-charges reports, there was shortage in the number of question papers found in the sealed envelopes at some examination centres, than what written on the top of sealed envelopes. CWP No. 7385-CAT of 2011 3
(iii) Duplicate roll numbers were issued to some candidates as noticed from special reports of centre-
in-charges.
(iv) Only one Question paper was typed and further all booklets Xeroxed from Private Shop at Ambala Cantt. No serial numbering was done on Question papers to ensure the limited/strict usage of Question papers cum Answers sheets i.e. these could be replaced at later date being no serial numbering on these.
(v) The booklets consisted of individual sheets stapled together and the doubt is further reinforced, by non-uniform stapling observed in various booklets."
3. After noticing the aforesaid irregularities apart from seven others and Rule 219(i) of the Indian Railways Establishment Manual, Volume-I (for brevity, 'the Railway Manual'), the Tribunal has reached the conclusion that if certain errors are detected or irregularities have come to light then the examination or the selection process could always be cancelled. The respondents are found to have acted within law by exercising their right to cancel the provisional panel. The Tribunal further found that within the requirement of Rule 219(i) of the Railway Manual the panel was approved by the Chief Workshop Manager, Jagadhri Workshop and the cancellation was ordered by the Chief Mechanical Engineer/Principal, Head of the Department, Northern Railway, New Delhi. The Tribunal rejected the argument that the persons who indulged in malpractice could have been segregated CWP No. 7385-CAT of 2011 4 from the ones who had not, by observing that after perusal of the points raised in the vigilance report (R-1) it is patent that some of the mistakes/discrepancies were detected in all examination centres. For the sake of illustration it has been pointed out by the Tribunal that the signatures of the Invigilators were not found anywhere on the question paper-cum-answer booklets in any of the examination centres, which lead to the inference that such answer sheets might have been smuggled. Likewise, in some of the examination centres the number of question papers were found short in the so called sealed envelopes than the number such envelopes had carried at the time of sending those envelops to centres. It also led to a suspicion that envelopes had been tampered with and some question papers had been stolen from the envelopes. The mass copying/tutoring during the examination has also not been ruled out.
4. We have heard learned counsel for the petitioners at a considerable length and are of the view that once all pervading mal-practices vitiating the sanctity of the examination have been found then it would be safe for the competent authority to exercise the power vested in it under Rule 219(i) of the Railway Manual. A perusal of the provision of Rule 219(i) of the Railway Manual would be necessary for deciding the controversy which reads as under:-
"219(i) After the competent authority has accepted the recommendations of the Selection Board, the names of candidates selected will be notified to the candidates. A panel once approved should normally CWP No. 7385-CAT of 2011 5 not be cancelled or amended. If after the formation and announcement of the panel with the approval of the competent authority it is found subsequently that there were procedural irregularities or other defects and it is considered necessary to cancel or amend such a panel, this should be done after obtaining the approval of the authority next higher than the one that approved the panel."
5. A perusal of Rule 219(i) of the Railway Manual would show that if subsequently it is found that there was procedural irregularities or other defects leading to the formation of an opinion to cancel or amend such a panel, this could be done but after obtaining approval of the authority next higher than the one who approved the panel. In the present case the panel was approved by the Chief Workshop Manager, Jagadhri Workshop and cancellation was approved by the Chief Mechanical Engineer/Principal, Head of the Department, Northern Railway, New Delhi. Accordingly it is found to be consistent with the provisions of Rule 219(i) of the Railway Manual.
6. We are further of the view that once the vigilance has recorded a credible finding that the question paper-cum-answer booklets were without signatures of the Invigilators then the sanctity of the examination would be vitiated more so when a number of question paper-cum-answer booklets have been found missing in the sealed envelopes which were carrying a larger number of such booklets. The credible conclusion reached by the Vigilance Department even if are not conclusive, should be CWP No. 7385-CAT of 2011 6 accepted because benefit of doubt must go in favour of the institution rather than in favour of the individuals. If there was malpractice and some persons could have qualified the examination on the basis of aforesaid malpractices then it would be highly stigmatic for the system. It would be better to err on the side of cancelling such suspicious result of an examination rather than sweeping under carpet the ugly aspect of accepting the same and erring on the other side. Once the sanctity of the examination is vitiated the scrapping of the same is still within the parameter of the right of the respondents. The writ petition does not merit admission and the same is liable to be dismissed.
7. For the aforesaid reasons, this petition fails and the same is accordingly dismissed.
(M.M. KUMAR)
JUDGE
(T.P.S. MANN)
April 28, 2011 JUDGE
PKapoor