Rajasthan High Court - Jaipur
Babu Lal Kumawat vs Union Of India And Ors on 12 April, 2019
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 6068/2017
Babu Lal Kumawat S/o Shri Bajrang Lal Kumawat, Gram
Charanwas, Post Hudil, District Nagaur-341509, Rajasthan Roll
No. 4123011691
----Petitioner
Versus
1. Union Of India Through Secretary, Ministry Of Railways,
Govt. Of India, New Delhi.
2. The Director General, Railway Protection Force,
Government Of India Ministry Of Railways, New Delhi-
110001.
3. The Chief Security Commissioner, North Eastern Railway,
Gorakhpur.
4. Chief Secretary Commissioner, North Western Railway,
Jaipur.
----Respondents
For Petitioner(s) : Mr. Sanjay Rahar, Ms. Chhavi
Chaturvedi
For Respondent(s) : Mr. PC Sharma
HON'BLE MR. JUSTICE ALOK SHARMA
Order
Date of Order :: 12/04/2019
Pursuant to the employment notice no. 1/2011, the
petitioner applied for the post of Constable in Railway Protection
Force under OBC male category. Having passed the written
examination, he was called for PST/PET on 12.6.2014. The
petitioner participated in the PST/PET and was called for
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interview at Railway Protection Force Reserve Line, Loco Colony,
Hasanpura, Jaipur and for medical test. Thereafter the
respondents declared the final list, wherein the petitioner secured
normal 60% and GTO 59.23 % and the last candidate in OBC male
candidate who was selected secured 45% marks. Subsequently
the respondents offered appointments to the selected candidates,
but the petitioner despite being highly meritorious was not, for the
reason that his Left Thumb Impression (LTI) on the application
form did not match with LTI on OMR / Viva Voce sheet. Hence the
present writ petition.
Counsel for the petitioner submitted that on account of
mismatching the LTI of 58 persons, FIR No 476/2014 was lodged
at Police Station, Sadar, Jaipur Metropolitan for the offence under
Section 419 IPC, where a notice under Section 41A CrPC was
issued. The petitioner appeared before the police and after
investigating the matter, the police submitted the negative final
report in the matter observing as under:
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"Jh ckcwyky dqekor iq= Jh ctjax dqekj dqekor jktLFkku
vaxqy fpUg laxzgky; t;iqj dh fjiksVZ dk voyksdu fd;k x;k
rks ijh{k.k fjiksVZ esa QkeZ ij ck;s gkFk dk vaxqBk fu"kkuh gksuk
crk;k x;k gSA bl izdkj Jh ckcwyky dqekor }kjk dksbZ Ny o
izfr:i.k djuk ugh ik;k x;kA**
Counsel for the petitioner submitted that in this view of
the matter, no offence under Section 419 IPC being made out
against the petitioner, he as a duly selected meritorious candidate
was entitled to be given appointment on the post of Constable in
Railway Protection Force Pursuant to the employment notice no.
1/2011 as those less meritorious have been already so appointed.
Reply to the writ petition has been filed. The factum of
the petitioner's merit and his selection has not been denied.
Neither it has been denied that the petitioner despite his merit on
the final select list was denied appointment on suspicion of fraud
for reason of the mismatch of his left thumb impression in the
application form on the one hand and OMR sheet / Viva Voce
sheet on the other. It has also not been denied that following
police investigation in the FIR lodged inter-alia against the
petitioner for alleged fraud by impersonation the petitioner has
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been wholly exonerated and no fraud but only carelessness of
affixing his right thumb impression not left thumb impression on
his application form found. Hence no fraud or misrepresentation is
attributable to the petitioner. It has been however submitted that
the selection process had already been completed and after
rejection of the petitioner's candidature in the year 2014, he has
only filed the writ petition in the year 2017. And in this view of the
matter, the writ petition be dismissed.
Heard. Considered.
Admittedly, the report of finger print expert of Railways,
on the basis of which the petitioner's selection to the post of
Constable rejected was not furnished to the petitioner. Therefore,
the petitioner had no opportunity to controvert it. The respondents
were expected to confront the petitioner with material relied upon
against him. After the report of finger print expert adverse to the
petitioner was received neither was he given any notice, nor the
content of report disclosed. Instead FIR was lodged against the
petitioner. In the FIR lodged by the respondents against the
petitioner and others, no offence under Section 419 IPC has been
found to be made out and resultantly the police submitted a
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negative report qua the petitioner in the matter. The nature of
expert's report of the Railways otherwise not being conclusive, it
could not solely be relied upon to cancel the petitioner's
candidature.
As a matter of fact, no adverse report was ever
received at the time of examination process and it is at a
subsequent point of time (i.e. at the time of final selection) that
allegation of impersonation was first made. The respondents'
action was plainly not in conformity with the principles of natural
justice. The allegation of impersonation against the petitioner was
founded only on the mismatch of thumb impressions on the
application form on the one hand and OMR sheet / Viva Voce
sheet on the other. No mismatch of the signatures of the
petitioner was in issue. The issue is however so settled in the
petitioner's favour with the filing of the negative final report by the
police in the FIR alleging impersonation against the petitioner.
The petitioner appears to be an innocent victim of his careless
mistake of affixing his right thumb impression on the application
form instead of the left thumb impression. The issue having now
been settled on police investigation to deny the petitioner an
appointment despite selection would be harsh. As far as the issue
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of laches is concerned, I am of the considered view that it cannot
entail denial of relief to the petitioner in the facts of the case.
Laches is an equitable doctrine not a legal prohibition foreclosing a
legal right. It operates largely where third party rights intervene
for the lethargy / delays of one denied a right. Nothing on record
brought by the respondents suggests that in the event the
petitioner were to be now appointed as Constable in terms of his
merit at the selection to the post of Constable following the order
dated 24.7.2014 it would adversely affect a third party.
In such circumstances, I am of the considered view that
action of respondents in cancelling petitioner's candidature for
being appointed as Constable despite being meritorious and due
selection is violative of principles of natural justice and in the facts
obtaining wholly unjust.
In this view of the matter, impugned order dated
24.7.2014, on the basis of which the petitioner's candidature was
not considered for being appointed to the post of Constable due to
mismatch of his thumb impressions on the application form on the
one hand and on the OMR sheet / Vive Voce Sheet on the other, is
quashed and set-aside. The respondents are directed to consider
the petitioner's candidature as per his merit in the select list for
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being appointed on the post of Constable. In the event of, no
vacancy of Constable pursuant to the employment notice no.
1/2011 is now available with the respondents, they are directed in
the interest of justice to create a supernumerary post of Constable
and appoint the petitioner on the said post as the petitioner from
a poor social and economic background has already suffered
disproportionately on account of rejection of his candidature due
to mismatching of his thumb impression on the application form
on the one hand and on the OMR sheet / Vive Voce Sheet on the
other. However, the petitioner would be entitled to service benefits
from the date he joins duty pursuant to the order of appointment,
subject to the requisite training to be undergone by him with the
next batch of constables.
Writ petitions stands disposed of accordingly.
.
(ALOK SHARMA),J DILIP KHANDELWAL (Downloaded on 28/06/2019 at 12:26:09 AM) Powered by TCPDF (www.tcpdf.org)