Central Administrative Tribunal - Delhi
Muni Raj Sharma vs Staff Selection Commission on 16 April, 2024
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Item No. 64/ C-4 O.A. No. 4098/2017
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 4098/2017
This the 16thday of April, 2024
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K Gupta, Member (J)
Muni Raj Sharma
R/o BamanBadoda (gram)
Tehsil-Gangapur City,
SawaiMadhopur,
Rajasthan-322201
...Applicant
(By Advocate: Mr Ajesh Luthra with Ms. Vaishali Sulkhlam)
Versus
1. Union of India
Through its Secretary
Department of Personnel & Training,
Ministry of Personnel, Public Grievance & Pension
North Block, New Delhi
2. Staff Selection Commission
Through its Chairman (Head Quarter)
Block No. 12, CGO Complex,
Lodhi Road, New Delhi-110504.
...Respondents
(By Advocate: Mr.K.M Singh)
2
Item No. 64/ C-4 O.A. No. 4098/2017
ORDER (ORAL)
Hon'ble Mr. TarunShridhar, Member (A) The applicant participated in the Combined Graduate Level Examination (CGLE)-2016 and appeared in Tier 1 examination on 06.09.2016 & in Tier 2 on 30.11.2016. Thereafter, his name being in the list of the candidates qualified in the Tier 2 examination, the applicant appeared in Tier 3 examination & CPT and Typing Test on 19.03.2017 & 19.04.2017 respectively.
His case is that in the Tier 3 examination although he secured 69 marks, he was awarded zero marks and hence deprived of selection pursuant to the said examination.
2. The applicant resorted to the provisions of the Right to Information Act (RTI) to ascertain the reason as to why he was not given the benefit of his merit in the CGLE and denied appointment. He was informed, vide communication dated 22.09.2017, that he had failed to adhere to the instructions governing the examination by omitting to affix his signatures on the cover page of the answer sheet of Tier 3 examination.
Aggrieved by this action of the respondents he has approached the Tribunal praying for the following relief in this OA:
a) Quash and set aside the impugned action/order of the respondents rejecting the applicant's candidature reflected in their impugned decision placed at ANNEXURE P-1(Colly.) to the extent they relate to the applicant;3
Item No. 64/ C-4 O.A. No. 4098/2017
b) Direct the respondents to evaluate the answer sheets of the applicants for Tier-3 and further consider the applicant's case for appointment as per their merit position along with others.
c) Accord all consequential benefits.
d) Award costs of the proceedings and damages for mental torture and harassment; and
e) pass any such other and further order/s, direction/s which this Hon'ble Court deems fit and proper in the facts and circumstances of the case, and in the interest of justice.
2. Learned counsel for the applicant argues that the subject of this OA has engaged the attention of this Tribunal in an earlier round of litigation in a bunch of OA's which are as follows:
1. OA No. 4005/2017 2. OA No. 946/2020 3. OA No. 1362/2020 4. OA No. 2090/2020 5. OA No. 3516/2017 6. OA No. 2371/2021 7. OA No. 973/2020 8. OA No. 2040/2022 9. OA No.1927/2020 10. OA No.3929/2017 4Item No. 64/ C-4 O.A. No. 4098/2017
3. Learned counsel for the applicant clarifies that the subject of those OAs too was the Combined Graduate Level Examination (CGLE) of different years including of 2016 and all facts, circumstances and issues are identical. The applicants in those bunch of OA's too were denied the benefit of their successful participation on the singular ground of omission on their part to affix their signatures on the answer sheet of tier 3 examination.
The said OA's were decided by a common order dated 11.01.2023.
4. Shri Luthra, learned counsel for the applicant, further submits that a challenge was put to the order of the Tribunal by way of a Writ Petition in the Hon'ble High Court by the respondents however, without any success. Therefore, he prays that the present OA be decided on the same analogy.
5. Shri K M Singh, learned counsel for the respondents, firmly contests the OA and submits that there may be some similarity between this OA and the bunch of OA's decided on 11.01.2023, however, specific facts and circumstances in each case have to be appreciated. He submits that the reply given to the RTI application of the applicant makes it clear that it was only to save precious time that all the answer sheets were evaluated, however, the applicant had rendered himself ineligible on account of violation of statutory instructions governing the examnation. He 5 Item No. 64/ C-4 O.A. No. 4098/2017 further submits that there were as many 485 candidates whose candidature has been rejected on account of violation of one or another condition, and showing any indulgence to the applicant would amount to discriminatory treatment against the others.
He argues that this would also be in contravention to the law laid down by the Hon'ble Apex Court in K Manjusree vs State of Andhra Pradesh and Another (2008), a reference to which has been made in para 19 of the counter reply.
6. Learned counsel for the respondents goes on to state that time and again the Hon'ble Courts have felt that statutory and mandatory instructions cannot be compromised with and in case of violation of such rules and instructions, no indulgence should be shown.
7. Drawing support from the various judgment he draws our attention to para 19 to 25 of the counter reply which are reproduced below:
"19. That all candidates who appeared and qualified as per conditions mentioned in the Recruitment Notice as well as Question and Answer Booklet, wrote the examination in accordance with the mandatory said instructions, therefore relaxing the same even for a single candidate would amount to changing of Rule of the Game/selection process midway which is not permissible, as per the law laid down by Hon'ble Supreme Court of India in K Manjusreevs State of Andhra Pradesh and Another (2008) 3 SCC 512.6
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20. It is further submitted that in a similar matter where also a candidate failed to comply with the provisions of Notice of the Examination approached the Court for relief. The Hon'ble High Court, Allahabad relied upon the decision of the Punjab High Court in the case of Dr. M. Vennila VS. Tamil Nadu Public Service Commission [2006 LAB.I. C. 2875] that "The cumulative effect of the above well enunciated principles of law, is that the terms and conditions of the brochure where they used pre-emptory language cannot be held to be merely declaratory. They have to be and must necessarily to be treated as mandatory. Their compliance would be essential otherwise the basic principle of fairness in such highly competitive entranceexaminations would stand frustrated" dismissed the Writ Petition No. 48846/2006 vide Order dated 28.08.2012 and held that strict adherence to the terms and conditions is paramount consideration and the same cannot be relaxed and refused to interference under Article 226 of Constitution of India. The copy of Order dated 28.08.2012 is enclosed herewith as Annexure R/3.
21. On the question of mandatory nature of the information brochure, the full bench of Punjab and Haryana High Court in Indu Gupta vs. Director, Sports Punjab, Chandigarh, AIR 1999 P&H 319 (FB), held that the instructions contained therein must necessarily be treated as mandatory to ensure fairness in the examination. The relevant portion of the said judgement is reproduced herein below for ready reference:-
"11. The cumulative effect of the above well enunciated principles of law, is that the terms and conditions of the brochure where they used pre-emptory language cannot be held to be merely declaratory. They have to be and must necessarily to be treated as mandatory. Their compliance would be essential otherwise the basic principle of fairness in such highly competitive entrance examinations would stand frustrated. Vesting of discretion in an individual in such matters, to waive or dilute the stipulated conditions of the brochure would per se introduce the element of discrimination, arbitrariness 7 Item No. 64/ C-4 O.A. No. 4098/2017 and unfairness. Such unrestricted discretion in contravention to the terms of the brochure would decimate the very intent behind the terms and conditions of the brochure, more particularly, where the cut off date itself has been provided in the brochure. The brochure has the force of law. Submission of applications complete in all respects is a sine qua non to the valid acceptance and consideration of an application for allotment of seats in accordance with the terms prescribed in the brochure.
22. The provisions of the Notice of Examination are binding both on the Commission and on the applicant and adherence to the rules and regulations are mandatory to preserve and protect the sanctity of the examination. The above statement was also upheld by the Hon'ble Punjab & Haryana High Court in Civil Writ Petition No. 13688/01 decided on 06.12.2001 wherein the Hon'ble High Court observed as under:-
"...........it is a settled rule of law that terms and conditions of brochure are binding and must be adhered to by all concerned. The obligations placed upon an applicant/candidate as the brochure has to be discharged in the form and manner prescribed therein",
23. More recently while disposing a similar case in Secretary, T.N. Public Service Commission vs. A.B. Natarajan, (2014) 14 SCC 95 the Apex Court held as under:-
"The candidates who had applied for Class I post, if selected, were to be Class I officers of the State of Tamil Nadu. Not following the instructions given to them while appearing in the examination, which had been conducted for their selection, would either mean that they were so careless that they did not read or bother about theinstructions to be followed or they wanted to give some indication to the examiner about their identity. In either case, such a candidate cannot be selected. A candidate, who is so careless that he does not bother about his own interest, cannot be expected to become a good officer. Interest of the candidate is to get through the examination and for that purpose he has to follow the instructions. By 8 Item No. 64/ C-4 O.A. No. 4098/2017 not following the instructions, he does not take care of his own interest. So, if he has written the answer books carelessly without bothering about the instructions given to him, he is a careless person who must not be appointed as an officer and if he has done it deliberately, then also he should not be appointed as an officer because one who plans such illegalities even before joining his service, cannot be expected to become a fair and straightforward officer. So, in either case, such a candidate cannot be selected for appointment as an officer and that too a Class I officer of any State." The admitted case of the candidates before the Tribunal was that they had committed mistakes/errors in filling the requisite details as per instructions printed on the answer sheet. Applying the rationale of the aforesaid judgement, it was apparent that since the candidates themselves were careless in not following the instructions of the examination given by the Commission, they had no right or authority in law to demand evaluation of their candidature.
24.Because in a similar matter, where also a candidate was awarded 'ZERO' marks due to wrong coding/non coding of particulars in OMRAnswer Sheet approached the Hon'ble High Court, Allahabad, the Hon'ble Allahabad High Court, while dismissing the Writ Petition No. 24372/2012 filed by ShriBrijKishorJaiswal, vide its Order dated 28.05.2012 clearly observed as under:-
"Sri BrijKishorJaiswal, Roll No. 3010032175 has wrongly coded his Test Form No. in paper-I of Tier-II examination on his OMR Answer Sheet of the said Examination. Therefore, as per provisions of the Notice of Examination and instructions in the OMR Answer Sheet, he has been awarded Zero marks in paper-I. In view of the aforesaid instructions there is no fault on the part of the respondent authorities. The petitioner himself has wrongly coded his test form No. in Paper-1 of Tier-II Examination on his OMR Answer Sheet."
25. In another matter while dismissing Writ Petition No. 2903/2014 filed by ShriAbhay Kumar, the Hon'ble 9 Item No. 64/ C-4 O.A. No. 4098/2017 Allahabad High Court vide its Order dated 18.02.2014, clearly observed as under:-
"In view of the fact that the petitioner had not followed the instructions mentioned on the OMR Sheet and failed to mention his roll number in the OMR sheet, I do not find any error in the decision of the respondent in not declaring the result of the petitioner." "
8. He also draws support from another judgment of the Hon'ble Apex Court in case titled Bedanga Talukdar Versus Saifudaullah Khan and Others (2011), paras 29 & 31 of which are reproduced below:
"29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation a in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be b necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete.Relaxation of any condition in advertisement without due publication 10 Item No. 64/ C-4 O.A. No. 4098/2017 would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.
31. In our opinion, the High Court was in error in concluding that Respondent 3 had not treated the condition with regard to the submission of the certificate along with the application or before appearing in the preliminary examination, as mandatory. The aforesaid finding, in our opinion, is contrary to the record. In its resolution dated 21-5-2010, the Commission has recorded the following conclusions:
"Though Shri S. Khan had mentioned in his letter dated 10-12-2009 that he was resubmitting the identity card with regard to locomotor disability he, in fact, had submitted the documentary proof of his locomotor disability for the first time to the office of the APSC through his above letter dated 10-12-2009. However, after receiving the identity card the matter was placed before the full Commission to decide whether the Commission can act on an essential document not submitted earlieras per terms of advertisement but submitted after completion of entireprocess of selection.
The Commission while examining the matter in details observed thatShri S. Khan was treated as general candidate all along in theexamination process and was not treated as physically handicapped withlocomotor disability. Prior to taking decision on Shri S. Khan it was also looked into by the Commission, whether any other candidate's any essential document relating to right/benefits, etc. not furnished with the application or at the time of interview but submitted after interview was accepted or not. From the record, it was found that prior to Shri S. Khan's case, one Smt Anima Baishya had submitted an application before the Chairperson on 26-2- 2009 claiming herself to be an SC candidate for the first time. But her claim for treating herself as an SC candidate was not entertained on the grounds that she applied as a general candidate and the caste certificate in support of her claim as SC a candidate was furnished long after completion of examination process."11
Item No. 64/ C-4 O.A. No. 4098/2017
9. We have gone through the pleadings on record carefully. A careful reading of the judgment of this Tribunal dated 11.01.2023 in the bunch of OA's referred to earlier leaves us in no doubt that there is striking similarity which the present OA bears with those OA's. Further, we find that the said judgment also takes into account the various pronouncements including the judgment of the Hon'ble Apex Court Bedanga Talukdar Versus Saifudaullah Khan and Others(supra) upon which the learned counsel for the respondents has drawn much reliance.
10. Even at the cost of making this order very voluminous, let us reproduce the order of this Tribunal dated 11.01.2023 verbatim:
"The moot point involved in all the aforesaid OAs are the same, therefore, with the consent of learned counsel(s) for the respective parties, these were heard together and we are deciding all these cases by a common judgment. For the purpose of adjudication of the core issue, we are taking up OA No.973/2021 as lead case with the consent of the learned counsel(s) for the respective parties. Written submissions have also been filed by the respective parties.
2. In all the aforesaid Original Applications, the applicants are aggrieved by rejection of their candidature for CGLE 2018/Multi Tasking (Non- Technical) Staff, 2019, for respective post(s) on the ground that they failed to put their signatures on the answer book for Tier -II (Non-Technical) (Computer based) examination and CGLE 2018 candidates in Tier III (Descriptive) examination even though they have put their thumb impression. Therefore, answer sheets of some of the applicants have been evaluated and others have not been evaluated.12
Item No. 64/ C-4 O.A. No. 4098/2017
3. There are another set of applicants whose answer sheets have been evaluated and were declared qualified in Tier III (Descriptive Paper) but their candidatures have been rejected in terms of para 10 of Impugned Communication dated 01.04.2021 (in OA No.973/2021) inter alia holding as under:-
"10. Candidature of the following forty eight (48) candidates who were declared qualified in Tier-III (Descriptive Paper), have now been rejected in the final result on account of „Without Signature‟/ „Without LTI‟ / Incorrect Roll Number in their Answer Books of Tier-III, in strict compliance of the mandatory instructions. The Roll Numbers of these candidates are given below:
1402500029 1601002856 2002023703 2002024285 2201003791 2201020408 2201029614 2201038498 2201044134 2201084605 2201123469 2201147907 2201149204 2201154495 2201177520 2201203707 2201285605 2201318955 2201330394 2201335063 2201354222 2201369133 2201391971 2401002593 2402015194 2405029785 2405089396 2405093436 2405101169 2405106941 2406009607 3009004926 3010000140 3010301217 3013311721 3205605230 3206321789 3206815266 4205050555 4410018933 6001201898 6006204094 6007202203 8001002515 8007003557 8601067104 8601078186 9211000058
11. Result of eight candidates bearing Roll numbers 220115113, 2201167451, 2201356143, 2201413501, 2201415112, 2402009006, 2411005235 and 7001719272 has been kept withheld on account of suspected malpractices. In addition, result of one candidate bearing Roil No. 1601003341 has been kept withheld due to pending Court case."13
Item No. 64/ C-4 O.A. No. 4098/2017
4. At the admission stage, this Tribunal has granted interim relief vide record of proceedings dated 07.05.2021 in OA NO.973/2021 inter alia to the effect that "any appointment pursuant to the impugned notification dated 01.04.2021 shall be subject to the outcome of the present OA". It is noticed that in all other cases also, the stay has been granted by this Tribunal except in OA No. 1927/2020. For the sake of convenience and brevity the tabulated chart of the pending OAs and their status thereto depicts hereunder:
S.No. OA No. & Status of Interim order Category Number of evaluation applicants
1. 4005/2017 and Tier-III exam interim No 5 applicants not granted on signatures in evaluated 16.11.2017 Tier-III examination
2. 3516/2017 and Exam Interim No one applicant evaluated granted on signatures in 06.10.2017 Tier-III exam
3. 3929/2017 and 2 Evaluated Interim was No applicants granted on signatures in 10.11.2017 Tier-III exam
4. 946/2020 and one Tier-II exam Interim No applicant not granted on signatures in evaluated 05.11.2020 Tier-II exam
5. 1362/2020 and Not Interim No one applicant evaluated granted on signatures in
09.11.2020 Tier-III exam
6. 2090/2020 and 49 Not Interim No applicants evaluated granted on signatures in 26.02.2021 Tier-III exam
7. 1927/2020 and 2 Not No interim No applicants evaluated was granted signatures in Tier-II exam
8. 973/2020 and 18 Evaluated Interim No applicants granted on signatures in 07.05.2021 Tier-III exam 14 Item No. 64/ C-4 O.A. No. 4098/2017
9. 2371/2021 and Not Interim No one applicant evaluated granted on signatures in 29.10.2021 Tier-II exam
10. 2040/2022 and Not Interim No one applicant evaluated granted on signatures in 03.08.2022 Tier-III exam
5. In OA No. 973/2021, there are 18 applicants, who are seeking following relief(s):
"a) Quash and set aside the impugned para 10 of result notice dated 01.04.2021 (Annexure A/1) to the extent it relates to the applicants and
b) Direct the respondents to forthwith further consider and appoint the applicants in accordance with the service preferences submitted by them and their respective merit position.
c) Accord all consequential benefit including monetary and seniority benefits.
d) Award costs of the proceedings and
e) Pass any order/relief/direction(s) as this Hon‟ble
Tribunal may deem fit and proper in the interests of justice in favour of the applicants."
6. The sum and substance of all these cases is failure on the part of applicants/ candidates to put signatures on answer sheets/ booklets either in Tier II or Tier III examination conducted by Staff Selection Commission (In Short "SSC). However, the applicants have put thumb impression in answer booklets.
7. Brief Facts:
7.1 On perusal of the records of the case, it would reveal that it is not a matter of dispute that for Non Technical posts, there was three Tier pattern of examination i.e. 15 Item No. 64/ C-4 O.A. No. 4098/2017
(i) Tier I- Computer Based Examination
(ii) Tier II- ( Descriptive) ( English)
(iii) followed by document verification process (DV) ( if found on merit list) 7.2 Clause 14.8 and 14.9 of the admission notification prescribed as under:-
"14.8 In addition to the Admission Certificate, it is mandatory to carry at least two passport size recent colour photographs, Original valid Photo-ID proof such as:
14.8.1 Aadhaar Card/ Printout of E-Aadhaar, 14.8.2 Voter's ID Card, 14.8.3 Driving License, 14.8.4 PAN Card, 14.8.5 Passport, 14.8.6 School/ College ID Card, 14.8.7 Employer ID Card (Govt./ PSU/ Private), etc. 14.9 PwD candidates availing the facility of scribes as per paras 8.2 and 8.4 shall also be required to carry required Medical Certificate/Undertaking/ Photocopy of the Scribe's Photo ID Proof, as specified therein. Candidates without above noted documents will not be allowed to appear in the examination."
7.3 Following Clauses are also relevant for adjudication of the case, which are reproduced as under:
"17.14 Success in the examination confers no right of appointment unless Government is satisfied after such enquiry as may be considered necessary that 16 Item No. 64/ C-4 O.A. No. 4098/2017 the candidate is suitable in all respects for appointment to the service/ post.
17.15 The candidates applying for the examination should ensure that they fulfill all the eligibility conditions for admission to the examination. Their admission at all stages of the examination will be purely provisional, subject to their satisfying the prescribed eligibility conditions. If, on verification, at any time before or after the written examination, it is found that they do not fulfill any of the eligibility conditions, their candidature for the examination will be cancelled.
xxx xxx xxx
19. Action against candidates found guilty of misconduct: If candidates are found to indulge at any stage in any of the malpractices listed below during the conduct of examination or thereafter, their candidature for this examination will be cancelled and they will be debarred from the examinations of the Commission for the period mentioned below:
xxx xxx xxx
20. Commission's Decision Final: The decision of the Commission in all matters relating to eligibility, acceptance or rejection of the applications, penalty for false information, mode of selection, conduct of examination(s), allotment of examination centres and preparation of merit list & force allocation, debarment for indulging in malpractices will be final and binding on the candidates and no enquiry/correspondence will be entertained in this regard.
xxx xxx xxx
23. Important Instructions To Candidates:
a) BEFORE APPLYING, CANDIDATES ARE ADVISED TO GO THROUGH THE INSTRUCTIONS GIVEN IN THE NOTICE OF EXAMINATION VERY CAREFULLY.17
Item No. 64/ C-4 O.A. No. 4098/2017
(b)THE CANDIDATE MUST WRITE HIS NAME AND DATE OF BIRTH STRICTLY AS RECORDED IN THE MATRICULATION/ SECONDARY CERTIFICATE. IF ANY VARIATION IN THE NAME AND DATE OF BIRTH IS OBSERVED AT THE TIME OF DOCUMENT VERIFICATION, HIS/ HER CANDIDATURE WILL BE CANCELLED.
(c) CANDIDATES ARE ADVISED IN THEIR OWN INTEREST TO SUBMIT ONLINE APPLICATIONS MUCH BEFORE THE CLOSING DATE AND NOT TO WAIT TILL THE LAST DATE TO AVOID THE POSSIBILITY OF DISCONNECTION// INABILITY OR FAILURE TO LOGIN TO THE SSC/WEBSITE ON ACCOUNT OF HEAVY LOAD ON THE WEBSITE DURING THE CLOSING DAYS.
(d) The Commission will not undertake detailed scrutiny of applications for the eligibility and other aspects at the time of written examination and, therefore, candidature will be accepted only provisionally. The candidates are advised to go through the requirements of educational qualification age, etc. and satisfy themselves that they are eligible for the post(s). Copies of supporting documents will be sought at the time of Document Verification. When scrutiny is undertaken, if any claim made in the application is not found substantiated and/ or the candidate is found ineligible, the candidature will be cancelled and the Commission's decision shall be final.
xxx xxx xxx
(k) Applications with blurred/ illegible
Photograph/ Signature will be rejected summarily.
xxx xxx xxx
(n) The candidates must carry two passport size recent colour photographs and a latest photo bearing identification proof such as Aadhaar Card/printout of E-Aadhaar, Driving License, Voter Card, PAN Card, Identity Card issued by University/ College/ Government or any other office where the candidate may be working, etc in original to the Examination Venue, failing which they will not be allowed to appear for the same. PwD 18 Item No. 64/ C-4 O.A. No. 4098/2017 candidates availing the facility of scribes as per paras 8.2 and 8.4 shall also be required to carry required Medical Certificate/ Undertaking/ Photocopy of the Scribe's Photo ID Proof, as specified therein."
8. The learned counsel for applicants in support of their case have submitted that they are entitled to relief(s) on following points:-
8.1 It is submitted that cancellation of their candidature vide impugned para 10 of result notice dated 01.04.2021 is illegal. No individual error has also been spelled out. Besides, the error if any committed by applicants while filling up particulars on the opening sheet of their respective answersheet(s) is unintentional and inadvertent, due to examination related stress and hurry. The error is non-essential and the SSC itself has ignored the same and evaluated the answer-sheet.
8.2 Even if the applicants have defaulted, SSC has still evaluated the answerbook. This shows that there is no impediment in identification or evaluation of answerbook in the event a candidate erroneously omits to sign or put his left thumb impression or does not correctly mention his roll number. Not only such answerbooks have been evaluated, but marks have also been announced. Based on marks obtained in Tier-II, the final score of applicants has also been declared alongwith others. The merit of applicants has been thus arrived at and determined by SSC.
Pursuant to merit so determined and announced, the applicants have been subjected to all next stages of selection process including Computer Proficiency Test and Data Entry Skill Test and upon qualifying therein, document verification of applicants has also been conducted along with others and they have been allowed to submit their service preference also. Thus, the instructions contained on the answerbook 19 Item No. 64/ C-4 O.A. No. 4098/2017 envisaging award of zero marks and cancellation of candidature in the event of omission to follow the same are no more applicable at this belated stage. The said instructions do not require any compliance, at this belated stage.
8.3 During the Tier III stage examination, candidates are required to append their signatures and left thumb impressions at three places - (i) Attendance sheet (ii) Declaration form and (iii) the opening sheet of answerbook. All this is done in the presence of invigilators. In an event, a candidate omits to either sign on the opening sheet of his answerbook, his Left Thumb impression is still thereon the opening sheet, apart from his signatures as well as LTI on the undertaking form and the attendance sheet. Similarly, if a candidate omits to put his left thumb impression on the opening sheet, his signatures are still there on the opening sheet and additionally on the undertaking form and also the attendance sheet alongwith his Left Thumb Impressions. Thus, the omission of signature or LTI (as the case may be) is not fatal. It is relevant to note that affixation of left thumb impression even in the absence of signatures, is a valid and legal mode of execution of a document as held by Hon'ble Kolkata High Court in the case of Suchitra Karati vs. Sumitra Das, FMA No.99/1998 dated 25.02.2009.
8.4 In Kritika Raj Dabas vs. State Selection Commission, OA No.1413/2015 dated 07.12.2015, this Tribunal granted relief to the candidate who had committed an error in mentioning her roll number. The Hon'ble Delhi High Court affirmed the Order of this Tribunal vide judgment dated 19.05.2016 in Writ Petition (Civil) No. 4519/2016. SLP too was dismissed. The said order was passed by keeping in view that the answerbook had been evaluated by SSC itself, despite its instructions to the contrary.
8.5 It is further relevant to point out that SSC has rejected 4560 candidatures towards the instant 20 Item No. 64/ C-4 O.A. No. 4098/2017 selection process on the ground of candidates adopting 'unfair means' or to say candidates revealing identity in the answerbook, which too is violation of the exam-related instructions of SSC. However subsequently, SSC revisited and recalled its earlier decision of rejection of candidatures and vide notice dated 05.08.2020 (Annexure A16) allowed all such candidates to participate further in the instant ongoing selection process. It is submitted that dual standard policy of SSC cannot be countenanced in law.
8.6 On identical issues, OA No. 263/2017 titled Avinash Chandra Singh & Ors. vs. Staff Selection Commission, this Tribunal had restrained the respondents from issuing any appointment letter vide interim order dated 23.01.2017 and thereafter allowed the OA vide orders dated 21.02.2017. The aforesaid judgment has been upheld by Hon'ble Delhi High Court in CWP No. 6086/2017 decided on 29.08.2017 and later, SLP filed by SSC has been dismissed on 22.11.2019.
9. The applicants pray for condonation of the minor error inadvertently committed by them. The applicants are unemployed and recently completed their studies. They have done fairly well in this highly Competitive Selection process. They have proved their merit. They pray that they may not be excluded from selection and denied appointment merely on hyper technical grounds.
10. Reliance is placed on decision of Hon‟ble High Court of Kolkata in Suchitra Karati (supra), the relevant part of the order reads as under:
"Before concluding, this Court also feels that another aspect is required to be considered in the facts of the instant case. This is a case where creation of a document by misrepresentation is not alleged. As such, under what circumstances those 21 Item No. 64/ C-4 O.A. No. 4098/2017 documents were created is not a material consideration here. Here the Court is required to find out as to whether those disputed deeds were executed by Jugal babu or not. Execution of a document can be made in various modes. A document may be executed by the executants by putting his signature on such document. A document may be executed by the executants by putting his left thumb impression therein. Both the aforesaid modes of execution are valid and accepted. Normally, it is not expected from a literate person to execute a document by putting his left thumb impression. But the departure from this rule cannot vitiate a document, if it is found that the executant executed the disputed document even by putting his left thumb impression therein."
11. Applicants have further relied on the decision of this Tribunal in OA No. 2063/2012 dated 13.02.2013. Relevant part of the order reads as under:
"26. The applicant himself committed a mistake by not coding his Ticket number correctly on his OMR Answer Sheet cannot throw blame on the Invigilator by stating that it is for the Invigilator to verify whether all the particulars have been filled properly or not before affixing his signature on the OMR Answer Sheet.
27. However, as the applicants OMR Answer Sheet for Paper-1 of Tier-II examination has already been evaluated by the OMR machine, and awarded 129 marks to him for the said paper, and as per the marks announced by the respondents vide Annexure A5 and Annexure A6, the applicant is eligible to be placed in the merit list for the post of Inspector (Central Excise) against the vacancy of Inspector (Central Excise) which was directed to be kept vacant by this Tribunal and as held by the Hon‟ble High Court of Delhi in Neeraj Kumar‟s case (supra), that the instructions regarding filling up of the OMR Answer Sheets, in the absence of allegations of any mal-practices, are merely directory and not mandatory and in view of the observations of the 22 Item No. 64/ C-4 O.A. No. 4098/2017 Hon‟ble Apex Court in Sandeep Kumar‟s case (supra) that the approach should be to condone minor indiscretions made by young people, we are of the considered opinion that the OA deserves to be allowed.
28. In the peculiar facts and circumstances of this case and for the aforesaid reasons, the OA is allowed and the respondents are directed to consider the case of the applicant for appointment to the post of Inspector (Central Excise) or to any other post, as per his merit, after taking into the marks awarded to the applicant for Paper-1 of Tier-II examination as per Annexure A5 coupled with the marks awarded to him under Annexure A6, if otherwise eligible, within a period of 60 days from the date of receipt of a copy of this order.
29. However, it is made clear that the applicant will get all his benefits such as salary, seniority, etc. prospectively, i.e., from the date of appointment only."
12. Applicants have further relied on decision of Coordinate Bench of this Tribunal in OA No.1802/2012 dated 30.10.2013 titled Ajay Kumar Kajla vs. Union of India. Relevant part of the order reads as under:
"12. We, therefore, direct the respondents to evaluate Part II of answer sheet of the applicant, accord marks and declare it. If the applicant scores above the cut off marks, he should be invited for PET/Medical Test/interview and if he qualifies in them, appointed as IO in NCB. This exercise should be completed within a period of two months from the receipt of a copy of this order."
13. Applicants have further relied on decision of Coordinate Bench of this Tribunal in OA No.1413/2015 dated 07.12.2015 titled Ms. Kritika 23 Item No. 64/ C-4 O.A. No. 4098/2017 Raj vs. Staff Selection Commission. Relevant part of the order reads as under:
"20. From the aforesaid legal back ground, it is clear that applications or candidatures or selections normally shall not be rejected by the authorities, if any minor mistakes made by the youngsters in the competitive examinations, if otherwise establishes the identification of the person concerned, who applied for the post under consideration, in response to the relevant advertisement.
21. In view of the above legal position and in view of the fact that one post of Assistant in CSS was kept unfilled by virtue of the Interim Orders of this Tribunal and the appearance of the applicant before the Central Excise authorities was also made subject to outcome of this OA, and as she has written her name correctly on the relevant paper- Module 3, which was also evaluated and awarded marks 86 out of 100, we are of the considered view that the ends of justice would be met if the respondents are directed to allot the post of Assistant in CSS to the applicant.
22. In the circumstances and in view of the above discussion, the OA is allowed and the respondents are directed to allot the post of Assistant in CSS to the applicant, if she is otherwise eligible, and the consequential orders for her appointment shall be issued, within four weeks from the date of receipt of a copy of this order. No costs."
14. Applicants have also relied on decision of Hon‟ble High Court of Delhi in WPC No.6086/2017 dated 29.08.2017 titled Union of India and another vs. Avinash Chandra Singh and others. Relevant part of the order reads as under:
"10. In the case of the said two respondents, there is slight distinction inasmuch, as, the said candidates had mentioned the ticket number incorrectly in the answer book as taken note of hereinabove. We have already noticed that the said 24 Item No. 64/ C-4 O.A. No. 4098/2017 ticket number is of no relevance to the process of evaluation of the answer script and it also has no bearing for the purpose of identifying the answer with the particular candidate. In fact, the opening sheet of the answer book of respondent No. 13 shows that the mistake in the writing of the ticket number by respondent No. 13 was corrected by the personnel of the petitioner itself. This shows that the petitioner was well aware of the correct ticket number which should have been filled in the opening sheet. Despite this being the position, the petitioner did not evaluate the answer scripts of respondent Nos. 13 and 62, which, in our view, is wholly unjustified. The wrong mention of the ticket number in the opening sheet of the answer book is as inconsequential, if not more, as the failure of the some of the candidates in not tick-marking the medium in which the answer scripts was answered.
11. We are, thus, of the view-for the reasons contained in our decision dated 10.08.2017 rendered in Writ Petition (C) No. 4829/2017, titled, "Union of India & Ors. Vs. Sumit Kumar" and WP(C) No. 5948/2017, titled, "Union of India & Ors. Vs. Nitish Kumar" that the decision of the Tribunal in the Original Application of the respondent i.e. O.A. No. 263/2017 is unexceptionable, and does not call for interference."
15. Learned counsel for applicants have further relied upon the decision of Hon‟ble Supreme Court in SLP (Civil) Dy.No.(S)18743/2018 dated 22.11.2019 titled Union of India and others vs. Sumit Kumar. The judgment is reproduced below:
"Delay condoned.
The Special Leave Petitions are dismissed.
Pending application(s), if any, stands disposed of accordingly."25
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16. The learned counsel(s) for the respondents in respective Original Applications vehemently opposed for grant of relief(s) to the applicants. The bone of contention urged to deny the relief inter alia is as follows:-
16.1 All the applicants are candidates of CGLE- 2018, the Notice of which was published on the website of the SSC on 05.05.2018. It is a four tier examination. Applicants appeared in the Tier-III level of the CGLE 2018 on various examination centres even in various states. According to one of the mandatory instructions inscribed on the question paper-cum-answer book of Tier-III level of CGLE-2018 itself, the candidates were required to write their Roll number, put their signatures and left thumb impression at the specified space on the first page of their question paper-cum-answer books. The instructions that were to be abided by the Candidates in Tier-III level of CGLE-2018, are as follows:-
"Question Paper-cum-Answer Books not bearing candidate's Roll No., Signature and Left- hand Thumb Impression, wherever requred will not be evaluated and/such candidates shall be awarded Zero 'marks."
16.2 These are mandatory instructions to ensure identity and authenticity of the authors of the Answer, Books of the candidates. However, the Applicant did not follow the Mandatory instructions and thus did not affix their signatures/ write correct Roll No. at the very first page of their Answer-Books either deliberately or due to their carelessness.
16.3 The very first page of the Question Paper- cum-Answer Book also carries the following mandatory instruction:
26Item No. 64/ C-4 O.A. No. 4098/2017 "Candidates are strictly advised not to write any personal identity (real or imaginary), e.g. Name, Roll No., Mobile No., Address etc. (other than the name and address given in the question) inside the Answer-Book. Otherwise their Answer-Book will not be evaluated and they shall be awarded zero marks."
16.4 By indicating personal identity inside the Answer-Book, candidate makes his/her Answer Book identifiable at the time of evaluation and thus vulnerable to misuse. Candidates failing to adhere to this mandatory instruction are categorized under UFM' i.e. "Unfair Means and rejected by awarding zero marks.
16.5 The Commission stands by its position that as per the instructions on the Question-cum-Answer Books, the Petitioner ceased to have a right for evaluation of their Answer Books as they did not comply with the instructions of putting signature on their Answer Book. The mandatory instruction cannot be treated as directory, lest the entire selection would suffer from the vice of arbitrariness.
16.6 It may be mentioned here that these instructions are in vogue since long. It is submitted that Roll Number, Signature and Left and Left Thumb Impression are the most basic inputs required from the candidates on the Answer Books and the absence of any of them may lead to challenging the basic authenticity of the Answer Books written by the particular candidate. On the first page of the Question Paper-cum-Answer Books, two personal information are required to be written by the candidates in their own handwriting in addition to their Left Hand Thumb Impression, namely, Roll No. and signature. In the absence of any of them, the very authentication of the Answer Book and its content may come under question. The candidates not writing their Roll 27 Item No. 64/ C-4 O.A. No. 4098/2017 Numbers, not putting their signatures and left-Hand Thumb impressions have been summarily rejected from the selection process of the Commission. There were 378 more candidates who were rejected on the same ground of violating aforesaid mandatory instructions inscribed on the first page of Question Paper-cum-Answer Books in Tier-III of CGIL Examination, 2018.
16.7 Mere merit of candidates cannot be taken as an excuse for covering up major mistakes like forgetting to put signatures on their Answer Books. It is pertinent to mention here that competitive Examination is not limited to take examination only rather it is a composite process which involves other formalities as well that eventually make an examination. Similarly, in the examination in question, Rules/instructions whether they are part of the Notice or inscribed on the Answer sheet, jointly form an examination process that demands serious observation of these rules/instructions on part of candidates and Commission's as well as. As such, these rules/instructions are also a part of the examination process. If any candidate has not followed the instructions deliberately or is so careless that he/she even forgets to put signature on the Answer Book of the Examination, he/she has no right to be considered for selection, especially when he/she is selected through such competitive examinations to hold sensitive posts in the Government of India.
16.8 In order to maintain the sanctity of its examinations, the Commission enforces on the candidates strict adherence to the mandatory instructions issued for the Examinations. The rules, guidelines, instructions and provisions given in the Notice of the Examination and also on the Question Paper-cum-Answer Books are treated as sacrosanct and all candidates are required to scrupulously follow the guidelines. The Commission conducts its Examinations only within the framework of these 28 Item No. 64/ C-4 O.A. No. 4098/2017 rules, guidelines and instructions which are applicable uniformly to all candidates. If such mistakes, committed by the Applicant in contravention to the instructions/rule positions, are overlooked/condoned, the whole sanctity of the instructions and eventually of the Examination, would be lost and it would also be discriminatory to the candidates who followed these instructions meticulously.
16.9 As regards the claim of the applicants that the Left Hand Thumb Impression (LTI) of the applicants affixed on the Answer Book as well as in the attendance sheet can be verified by the SSC, it may be mentioned that it is impractical for the Commission to get verification of candidates on the basis of thumb impression, at various intermediary stages of examinations. LTI of the Petitioner affixed on the Answer-book, cannot be verified by the Commission as this will require collection of samples of LTI as well as assigning the work to the Forensic Laboratories which are already overburdened with criminal investigations. It is further stated that the Commission conducts examinations for around 1.5 crore candidates every year and it is not possible for the Commission to adopt this route in a large number of cases wherever candidates failed to put their signature. The entire Schedule of its examinations and the recruitment thereafter would never be completed if such process were to be adopted by the Commission. Thus, it is impractical for the Commission to get verification of candidates on the basis of thumb impression, at various intermediary stages of examination.
17. Reliance is placed on following case laws:
i) I.A. No. 5-8 in Civil Appeal Nos. 8343-8344 OF 2011 -[Arising out of S.L.P (C) No.20152-20153 of 2010] Bedanga Talukdar vs. Saifudaullah Khan & Ors. dated 28.9.2011 wherein it is held that the 29 Item No. 64/ C-4 O.A. No. 4098/2017 case of power of relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved in the relevant rules and/or in the advertisement. In the present case, no such rule has been brought to our notice.
ii) The State of Tamil Nadu & Ors vs G. Hemlatha & Anr., Civil Appeal No.6669 of 2019 wherein it is held that candidate for judicial post wherein, she complained that the Commission wrongfully invalidated her Law Paper-1. The High Court summoned the answer sheets and found that the Respondent had underlined the answer sheet with pencil at several places in Law Paper).
(iii) In the case of Dr. M. Vennila Vs. Tamil Nadu Public Service Commission, Writ Petition No.32383/2005 dated 12.06.2006, the Hon‟ble High Court of Madras was of the view that It is not in dispute that the applicants therein are highly qualified medical practitioners and after successful in their course, they registered their names in the Medical Council of India.
(iv) WP (C) no.427/2021 - Rashmi Kumari vs The Regional Director (NR) SSC decided on 18.1.2021 by the Hon‟ble High Court of Delhi at New Delhi, it is held as under:
"3. It is the case of the petitioner that her paper-II answer sheet of the Multi Tasking (non-technical) Staff examination, 2019 has not been evaluated only on the ground that she has not signed the answer sheet though she has put her thumb impression on the same.30
Item No. 64/ C-4 O.A. No. 4098/2017
4. Mr. Bajaj who has taken instructions states that the case of the petitioner is not the solitary case. The answer sheets of approximately 700 candidates have not been evaluated on the same ground.
According to him the instructions on the answer sheet clearly states that the candidates must the answer sheet, Dispute that if any candidate has not signed the answer sheet, the same is not evaluated. He further states that the next procedure is that of the verification of the documents to assess the eligibility of the candidates for said examination and that process has been initiated on January 04, 2021 and shall continue till January 22, 2021.
5. It is too late for the petitioner to approach this Court as according t him the results for the said examination were declared somewhere in the month of October, 2020."
18. The subject matter in all the Original Application(s) not only raises a interesting but also possess a larger issue of immense public interest/importance as to "Whether the genuineness of admitted card at the stage of Tier II/III of recruitment examination can be doubted only because the candidate who has affixed his or her thumb impression on the same instead of signing it, in presence of invigilator, therefore, his or her candidature is liable to be rejected?"
19. Analysis:
31Item No. 64/ C-4 O.A. No. 4098/2017
19.1 In the present case, in OA Nos. 973/2021,
3929/2017, 3516/2017, the answers sheets have been evaluated and in all other OAs, the answer sheets have yet to be evaluated.
19.2 In above backdrop, with a view to address the question posed above, we would like to see what specialist in the field of Forensic Science had to say about Science of Finger Prints. „The Science of Fingerprint identification is an exact forensic science and does not admit of any mistake or doubt.‟ (S Murtaza Fazal Ali, J.) 19.3 In 1788 a German anatomist Johann Christoph Andreas Mayer was the first European to conclude that fingerprints were unique to each individual.
19.4 In 1858 Sir William James Herschel initiated fingerprinting in India. In 1877 he first instituted the use of fingerprints on contracts and deeds to prevent the repudiation of signatures in Hooghly near Kolkata. (William J Herschel (1916). The Origin of Finger-Printing. Oxford University Press). He registered government pensioners' fingerprints to prevent the collection of money by relatives after a pensioner's death. William James Herschel (November 25, 1880). "Skin furrows of the hand".
19.5 In 1880 Henry Faulds suggested, based on his studies, that fingerprints are unique to a human (Stan Z. Li (2009). Encyclopedia of Biometrics:
I - Z Volume 2).
19.6 In Questioned Documents. Albert S. Osborn.
Nelson-Hall Co., Chicago, III., 1929 Second Edition, founded as under :-
"Questioned document examination and finger print examination both are significant branches of forensic science.32
Item No. 64/ C-4 O.A. No. 4098/2017 according to principle of handwriting science no two person can write same with similar writing characteristics and same person cannot write exactly same twice. Fingerprints are unique in nature as every individual has his/her fingerprint to provide its own identity. The finger contains a complicated structure of ridges with sweat glands at regular intervals. The patterns remain as such of any individual from birth to death and do not change with growth except size.
Questioned document examination of disputed document is bases on the comparison and analysis of significant individual characteristics features identification in between questioned and standard handwriting content. The various cases related with fraud and forgery and falsification of documents has come in knowledge in daily life which affects everyone in society."
19.7 The State Of Bombay vs. Kathi Kalu Oghad And Others, 1962 SCR (3) 10, the Constitution Bench of the Hon‟ble Apex Court had held that Section 73 of the Indian Evidence Act empowers the court to, obtain specimen writing or signature and finger impressions of an accused person for purposes of Comparison. There was no infringement of Article 20(3) of the Constitution in compelling an accused person to give his specimen handwriting or signature, or impressions of his thumb, fingers, palm or foot to the investigating officer or under orders of a court for the purposes of comparison. Held, further, that the provisions of S. 27 of the Indian Evidence Act did not offend Art. 20(3) unless compulsion was used in obtaining the information.
33Item No. 64/ C-4 O.A. No. 4098/2017
19.8 The reference is drawn to Kathi Kalu
Oghad (supra) in present case to say that one cannot obivate from the fact that there is also IV Tier in examination process i.e. the stage of document verification itself. In the event, the respondents have some doubt about any of the applicant(s) their being a prima facie or even iota of evidence so as to impersonation, cheating by any candidate, the said candidate can be given a chance to prove his or her innocence by asking for speciemen signature as well as finger prints for purpose of comparison. Subject to the said verification, the successful candidate can be issued offer of appointment after obtaining the expert opinion or finger print report. But without giving a reasonable opportunity by mere explanation by respondent(s) in rejecting his or her candidature(s) shall not be sufficient to pre-judging his or her character.
19.9 In terms of Section 4 of the Indian Evidence Act, whenever it is provided by the Act that the Court shall presume a fact, it shall record such fact as proved unless and until it is disproved. Applying the said definitions of "proved" or "disproved" under Section 5 of the Indian Evidence Act to the instructions for both applicant(s) and invigilator(s) , the Court shall presume that the same were done in accordance with same. It is trite in law that in the case of mandatory presumption, the burden of proof on the respondents in such a case would not be as light.
19.10 As the presumption is raised under Section 114 of the Indian Evidence Act and cannot be held to be discharged merely on the fact that the explanation offered by the respondents is reasonable. When there is a statutory presumption in favour of the applicant(s) as mode and manner in which the recruitment examination was conducted in presence of the invigilator appointed by the respondents who would have verified the credential of the such candidature 34 Item No. 64/ C-4 O.A. No. 4098/2017 while allowing to take exam and following the instructions during the said process, it has to be rebutted by proof and not by a bare explanation. Unless the explanation is supported by proof such as case of any incident of impersonation, cheating, possession of un- allowed material, mobile phone FIR or criminal action etc, the presumption created by the provision/executive instructions cannot said to be rebutted.
19.11 In a recent decision i.e. Civil Appeal No.5823/2011, Lachhmi Narain Singh (D) Through LRs & Ors. Versus Sarjug Singh (Dead) Through LRs. & Ors. decided on 17.8.2021, while upholding the genuineness of cancellation deed , the Hon‟ble Apex Court, observed as under :-
"18. The key characteristic of thumb impression is that every person has a unique thumb impression. Forgery of thumb impressions is nearly impossible. Therefore, adverse conclusion should not be drawn for affixing thumb impression instead of signing documents of property transaction. Therefore, genuineness of the Cancellation deed cannot be doubted only due to the fact that same was not signed and Rajendra as a literate person, affixed his thumb impression. This is more so in this case since the testator‟s thumb impression was proved to be genuine by the expert. "
20. The purpose of exam invigilation is to ensure that all candidates are under active surveillance for every moment of the duration of the examination. Invigilators should also try to provide a suitably pleasant and supportive atmosphere for candidates. However, they must also ensure and prevent any kind of communication between candidates (by copying, whispering or any kind of signal, exchange of paper or objects) and any kind of access to books, papers or electronic media of any kind (unless specifically authorized) for the exam 35 Item No. 64/ C-4 O.A. No. 4098/2017 duration. Invigilators also need to ensure the security of the examination hall before, during and after the examination. From the moment the question papers are given out until all answers are collected, exam invigilators should patrol vigilantly. Particular emphasis should be given to multiple-choice and short-answer questions. The main goal should be to prevent possible candidate malpractice and administrative failures. Some of the other general duties may include:
a) Implementing the exam rules and regulations and remaining vigilant throughout the examination duration.
b) Assisting the candidates before, during and after the examination by directing them to their seats, advising them about possessions permitted at examination venues and dealing with queries raised by candidates etc.
c) Checking attendance during examinations, recording details of late arrivals and ensuring that proper seating plans are followed.
d) Escorting candidates during water breaks or washroom breaks as required and detecting any unauthorized materials inside the examination hall.
e) Delivering and collecting scripts carefully at the start and end of the examination in accordance with strict examination procedures.
f) Assisting with the packing of examination scripts, stationery and other equipment from the examination venues.
g) Supervising candidates in leaving the examination venues in a quiet and disciplined manner and ensuring that candidates do not remove equipment or stationery from the examination venue without the permission of the authority.36
Item No. 64/ C-4 O.A. No. 4098/2017
h) After the examination is over, the exam
invigilators should collect the scripts, question papers, stationery and other reference booklets from the candidates and check that all the required information (name, candidate number, venue, date etc.) have been filled out by the candidates on their scripts properly. When all the scripts are collected, invigilators should release candidates and direct them towards the exit of the examination hall in complete silence.
21. There are well defined instructions to invigilators, Overall Incharge, Observer-cum- Coordinator, Chief Invigilator, SSC team during their visit for any of the centre(s) by the respondents.
22. Any failure to carry out the above instructions on the part of invigilator, the respondents are also collectively and contributory liable for negligence. Therefore, it is not only administrative failure but also system failure for which the candidates cannot be blamed alone.
23. There is nothing on record to show that any disciplinary action has been taken against any of the invigilator for that matter against Overall Incharge, Observer-cum- Coordinator, Chief Invigilator, SSC team during their visit for any of the centre(s) for not following the instructions. Hence, presumption can be safely drawn that the examination was held in mode and manner prescribed under Instructions for examination without any incident of impersonation, cheating, possession of un- allowed material, mobile phone etc, more particularly in favour of the applicant(s). To the contrary, the booklet bears the signatures of the invigilator. Now, it cannot even lie the mouth of the respondents to contend or dispute the fact invigilator or Overall Incharge, Observer-cum- Coordinator, Chief Invigilator of Examination Center has not followed the above instructions.
37Item No. 64/ C-4 O.A. No. 4098/2017
24. The case laws relied upon the respondent‟s counsels cannot be applied to facts and circumstances of the present case in as much as in the said judgments the Hon‟ble Court were correct in applying law of following mandatory instructions at initial stage of examination. The Courts had not occasion to examine the role of the invigilators or Overall Incharge, Observer-cum- Coordinator, Chief Invigilator of Examination Center. The Courts had no occasion to deal with the situation to say the least what is sacrosanct to the candidates to follow instructions is equally applicable to the invigilators who have more and greater responsibility to hold examination in free and fair manner. The imposition of conditions cannot be loop sided. There is no sufficient evidence to establish against the applicants that they had used unfair means, impersonated and cheated in examination. There is no FIR or criminal action registered either till date. In present case, it is not even the case of the respondents that the applicant(s) have neither put signatures nor thumb impression.
25. The Rule of Fair play would demand that having allowed the candidates to get the evaluation the answer sheets at the II tier or III Tier Stage and/or to say the least, wherein, the invigilator has put his signatures after verifying the credentials of candidate(s), it would not be incumbent upon the respondents to contend that the guidelines at each and every stage of selection has not been followed so as to create element of doubt unless and until there is strong suspicious doubt about the credibility of candidature. In the facts and circumstances of the present case in hand, failure to follow the instructions in not signing but put a thumb impression cannot be said to be too fatal to deny the applicants a chance to prove their innocence, more particularly in the light of the fact that thumb impression is more scientific and reliable than signature. No adverse inference can be drawn at this stage.
38Item No. 64/ C-4 O.A. No. 4098/2017
26. Conclusion:-
In view of the aforesaid discussion in detail, the impugned rejection order dated 01.04.2021, more particularly para 10, in OA No.973/2020 and the impugned order(s) of rejection of candidature in the respective OAs are quashed and set aside. All the OAs are allowed with the direction that the Competent Authority amongst respondent shall process the answer booklets and evaluate the same qua the applicants wherever they have not evaluated either in Tier-II or III examination.
27. In the event, the applicants stand on the merits of the respective examination either in Mutli Tasking (Non-Technical) Staff, 2019, examination or CGLE- 2018 examination, they shall be offered the offer of appointment as per the respective merits as per rules and instructions.
28. We direct the respondents to process the candidatures of the applicants in case they are ineligible for any other reasons. The answer sheets of the candidates who have not been evaluated shall be evaluated within the period of two months from the date of receipt of the certified copy of this judgment. In the event, the applicants are found eligible on merits list in Tier II (non-technical)/Tier III, then there cases shall be scrutinized in order of merits. Thereafter, further process of taking up Tier-IV (technical) shall be taken up for successful candidates (if not undertaken) within a period of two months from date of declaration of results of Tier III of above applicant(s) strictly as per merits for relevant examination year.
29. It is made clear that the applicant(s) who are issued offer of appointment shall not be entitled to any arrears of salary. It is also made clear that the date of appointment shall be prospectively applied for grant of consequential relief(s). It is further directed that 39 Item No. 64/ C-4 O.A. No. 4098/2017 successful applicants as per merits shall be adjusted against either existing and/or anticipated vacancies for the year 2022-2023 and/or by creation of supernumerary posts as per administrative convenience.
30. Needless to say that in any event the above exercise shall be completed within a period of four months from the date of receipt of the certified copy of this judgment.
31. Pending MAs, if any, are disposed of accordingly.
No order as to costs."
11. We have gone through the judgment of the Hon'ble High Court in Writ Petition 12354/2023 vide which the aforesaid order was put to challenge. The Hon'ble High Court had given specific consideration to the fact that even though the applicant has omitted to affix his/her signatures, the invigilators too were guilty of carelessness by signing and attesting the said answer sheet. The Hon'ble High Court has questioned that in case there was a lapse on the part of the applicant why were the answer sheets accepted and why were they evaluated later on. There was no satisfactory answer to these questions as can be deciphered from the following relevant extract of the order of the Hon'ble High Court:
18. We are also in agreement with the findings of the learned Tribunal that even though the opening page of the answer sheets were not signed by the respondents, the answer sheets were duly 40 Item No. 64/ C-4 O.A. No. 4098/2017 accepted by the invigilators without noticing that they were unsigned. In fact, the petitioners have no justification as to why the invigilators, who had themselves signed on these very opening sheets, did not notice the omission by the respondents at the time of the examination and as to why they accepted the answer sheets without directing them to sign on the same before permitting them to leave the examination centre. We cannot lose sight of the fact that we are dealing with the future of young candidates who, perhaps on account of the anxiety to appear in such a competitive exam and the requirement to sign at multiple places, inadvertently omitted to sign the opening sheet where they duly affixed their thumb impression.
This lapse on part of these young candidates has to be seen in the context of the requirement to sign at the multiple places during the exam when the candidates are already under stress as also the fact that the answer sheets without their signatures at the opening page were duly accepted by the invigilators. It would, therefore, not be incorrect to say that if there was a lapse on part of the candidates, there was an equal or if not greater lapse on the part of the invigilators as well, who were duty bound to ensure that only properly filled answer sheets are accepted.
19. We have also considered the decision of the Apex Court in Karnataka Public Service Commission (supra), relied upon by the petitioner. In the said decision, the Apex Court held that it may not always be necessary to follow the principles of natural justice while rejecting the candidature of the candidates. This issue, we find does not even arise in the present case and therefore, the decision in Karnataka Public Service Commission (supra) would not be applicable to the facts of the present case."
41Item No. 64/ C-4 O.A. No. 4098/2017
12. We have also considered the decision in Bedanga Talukdar Versus Saifudaullah Khan and Others (supra) relied upon by the petitioner and find that in the said case, the Court was dealing with the question as to whether the nature of the reservation provided in the advertisement for examination, can be altered subsequently. The answer, we find, is a clear 'no'. We fail to appreciate as to how this judgment is applicable to the present case.
13. In view of what has been outlined above, and in strict adherence to the principles of judicial propriety and discipline, we find no reason to take a view which would be at divergence from the earlier order passed by the Coordinate Bench, which has been reproduced verbatim above. Therefore, the present OA is allowed with a further direction to the respondents that answer sheet of Tier 3 examination of the applicant too shall be evaluated by awarding the marks obtained by him subsequent to the evaluation which has already been done.
14. If after awarding of these marks, the applicant's name finds a place in the merit list of CGLE 2016, he shall be extended an offer of appointment with all consequential benefits on notional basis with effect from the date other similarly placed successful candidates of CGLE-2016 have been appointed and on actual basis w.e.f the date he assumes charge of the position.
42Item No. 64/ C-4 O.A. No. 4098/2017
15. Respondent No. 2 shall ensure that in the event the applicant's name being placed in the merit list, the necessary dossiers are forwarded to the appropriate Departments within a period of four weeks from the date of receipt of a certified copy of this order. Thereafter, the Respondent No. 1 shall ensure that the concerned User Department extends the offer of appointment within a further period of four weeks. If required, the Respondent No. 1 may direct the concerned user department to create a supernumerary post for the applicant to ensure that the directions contained above are fully complied with.
16. There shall be no order as to costs.
( Pratima K Gupta) (Tarun Shridhar) Member (J) Member (A) /ks/