Central Administrative Tribunal - Delhi
Sunil Kumar vs M/O Railways on 4 September, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 1445/2015
With
OA 2294/2015
OA 2030/2015
Reserved on 29.08.2018
Pronounced on 04.09.2018
Hon'ble Ms.Nita Chowdhury, Member (A)
Hon'ble Mr. S.N.Terdal, Member (J)
OA 1445/2015
Sunil Kumar, Aged 26 years,
Roll No. 40316995, Control No.12329601
Group D, Subject Appointment,
S/o Sh. Niranjan Singh,
Village Dudhar, Post- Gangeru,
Dist- Shamli, U.P.-247775. .. Applicant
(By Advocate: Mr. Nitin Kumar Gupta)
VERSUS
1. Union of India
Through Secretary,
Ministry of Railways, Rail Bhawan,
New Delhi.
2. Railway Recruitment Cell,
Through Assistant Personnel Office, RRC
Northern Railway, Lajpat Nagar-1,
New Delhi-110024
3. General Manager,
Northern Railway, Head Quarter Office,
Baroda House, New Delhi. ... Respondents
(By Advocate: Mr.Kripa Shankar Prasad)
OA 2294/2015
Jitender, Aged 37 years
Roll No. 51003169, Control No. 16019222
Group D, Subject Appointment,
S/o Sh. Banwari Lal, VPO Sundrah,
Tehsil Kanina, Dist. Mahendergarh,
Haryana-123034. ... Applicant
(By Advocate: Mr. Nitin Kumar Gupta)
2
OA 1445/2015 with OA 2294/2015 & OA 2030/2015
VERSUS
1. Union of India
Through Secretary,
Ministry of Railways, Rail Bhawan,
New Delhi.
2. Railway Recruitment Cell,
Through Assistant Personnel Office, RRC
Northern Railway, Lajpat Nagar-1,
New Delhi-110024
3. General Manager,
Northern Railway, Head Quarter Office,
Baroda House, New Delhi. ... Respondents
(By Advocate: Mr. S.M.Arif)
OA 2030/2015
Chandrakant Tyagi, Aged 30 years
Roll No. 40003773, Control No. 11048033
Group D, Subject Appointment,
S/o Sh. Ramnarayan Tyagi,
Village Bhikanpur, Post Etmadpur,
Dist. Agra, U.P.-283202. ... Applicant
(By Advocate: Mr. Nitin Kumar Gupta)
VERSUS
1. Union of India
Through Secretary,
Ministry of Railways, Rail Bhawan,
New Delhi.
2. Railway Recruitment Cell,
Through Assistant Personnel Office, RRC
Northern Railway,
Lajpat Nagar-1,
New Delhi-110024
3. General Manager,
Northern Railway, Head Quarter Office,
Baroda House, New Delhi. ... Respondents
(By Advocate: Mr.Kripa Shankar Prasad)
3
OA 1445/2015 with OA 2294/2015 & OA 2030/2015
ORDER
Hon'ble Mr. S.N.Terdal, Member (J):
Heard Shri Nitin Kumar Gupta, counsel for applicants and Shri Kripa Shankar Prasad and Mr.S.M.Arif, counsel for respondents, perused the pleadings and all the documents produced by the parties, prayers in all the OAs
2. The applicant prayed the following reliefs in the OAs. "OA No.1445/2015
"(a) Quash and set aside the result dt. 16.04.2015 passed by Respondents canceling the candidature of the applicant and debarring the applicant from further examinations;
(b) Direct the Respondents to declare the result of the written examination dt. 23.11.2014 of the Applicant;
(c) Remove the name of Applicant from the list of rejected candidates and declare the Applicant herein eligible for appearing in the PET scheduled between 21.04.2015 to 25.04.2015 or at any time directed by this Hon'ble Tribunal in the Employment Notice No.220-E/Open Mkt/RRC/2013 under OBC Category as per his merit;
(d) Pass any such other and further order(s)/direction(s) as this Hon'ble Court may deem fit and proper.OA No.2294/2015
(a) Quash and set aside the result dt. 16.04.2015 passed by Respondents canceling the candidature of the applicant and debarring the applicant from further examinations;
(b) Direct the Respondents to declare the result of the written examination dt. 30.11.2014 of the Applicant;
(c) Remove the name of Applicant from the list of rejected candidates and declare the Applicant herein eligible for appearing in the PET scheduled at any time directed by this Hon'ble Tribunal in the Employment Notice No.220-
E/Open Mkt/RRC/2013 under OBC Community/OH
Category as per his merit;
(d) Pass any such other and further order(s)/direction(s) as
this Hon'ble Court may deem fit and proper.
4
OA 1445/2015 with OA 2294/2015 & OA 2030/2015
OA 2030/2015
(a) Quash and set aside the result dt. 16.04.2015 passed by
Respondents canceling the candidature of the applicant and debarring the applicant from further examinations;
(b) Direct the Respondents to declare the result of the written examination dt. 23.11.2014 of the Applicant;
(c) Remove the name of Applicant from the list of rejected candidates and declare the Applicant herein eligible for appearing in the PET at any time directed by this Hon'ble Tribunal in the Employment Notice No.220-E/Open Mkt/RRC/2013 under OBC Category as per his merit;
(d) Pass any such other and further order(s)/direction(s) as this Hon'ble Court may deem fit and proper.
3. As could be seen the identical reliefs are prayed for as such all the three OAs are dealt with and disposed of by this common order.
4. For the sake of convenience, the facts stated in OA no. 1445/2015 are stated herein below.
The relevant facts are that the Railway Recruitment Cell issued an advertisement on 30.12.2013 vide Employment Notice No. 220-E/Open Mkt/RRC/2013. The applicants in all these OAs applied in response to the said advertisement and they appeared in the written examination held on 23.11.2014 and the respondents declared the result of the said written examination. But, however, all these applicants were shown in the said result dated 20.02.2015 as "your result has been withheld". The applicants made enquiry, visited the office of the respondents, moved RTI application and thereafter filed Original Applications before this Tribunal. In the meantime when the applicants checked the website of the respondents on 16.04.2015 they came to know that their candidature had been rejected on the ground of copying & malpractice using bluetooth, microphone & 5 OA 1445/2015 with OA 2294/2015 & OA 2030/2015 internet devices and on the above said ground the candidature of these applicants were cancelled and they were permanently debarred from taking any examination to be conducted in future by Indian Railway. The relevant portion of the reason given by the respondents is extracted below:-
"4. There have been some information that candidates have used unfair means while writing their papers which include copying, or scoring through fraudulent activities by using various means like Bluetooth, microphone and high fidelity scanner and clandestine devices. Thus, as per standard test procedure of examination evaluation, to detect copying or scoring through fraudulent activity through various means most noticeably such as Bluetooth enabled devices, high fidelity question scanner and other clandestine devices, viz. Bluetooth ear plugs, some scientific test checks were conducted on the answers pattern of such candidates whose result was withheld.
5. These results in the form of algorithm system of checking were further sent to the Apex Institution of Government of India for statistical analysis and conclusion. It has been advised by the expert of this Institute that your answers have been found with the matched pattern since you have also left blank for the same question nos. of the examination and you have also been found matched pattern with others for wrong answers option given by them. Further it has been advised by the expert of the said Institute of Government of India that you copied the answers."
Aggrieved by the said cancellation and debarring the applicants permanently, the applicants have filed these OAs.
5. The counsel for the applicants vehemently contended that no Show Cause Notice (SCN) was issued to the applicants and as such there is violation of principles of natural justice and, therefore, the order passed by the respondents be set aside with respect to each of 6 OA 1445/2015 with OA 2294/2015 & OA 2030/2015 the applicants. In support of his contention, the counsel for the applicants relied upon the judgment of Hon'ble High Court of Delhi in the case of Staff Selection Commission & Anr. Vs. Sudesh (Writ Petition (C) No.9055/2014). But, however, on closer scrutiny it is seen that the candidates involved in the above said case of Sudesh, were held qualified in the examination and were subjected to interview and were subsequently they were finally declared selected. Subsequently their results were withheld as such SCN was issued canceling the candidature. Whereas, in the present cases, the entire selection process was not over, their results were withheld immediately after the written examination and they were not even called for Physical Endurance Test (PET). As such the principles laid down by the Hon'ble High Court in the above said case of Sudesh cannot be applied to the facts of this case.
6. The respondents have elaborated in their counter affidavit the background and the reason for withholding the result and subsequently canceling the candidature and debarring the applicants. The relevant portion of the counter affidavit is extracted below:
"5. That Railway Recruitment Cell, Northern Railway has been entrusted with the responsibility to recruit candidates for the Group D posts where minimum educational qualification has been prescribed as only 10th pass without having any technical education. Hence number of aspirants exceed beyond one could foresee. It can be gauged from the following statistics:-
Recruitment Number of Number of application
Year vacancies received
2010 11439 1402406
2012 7368 1593796
2014 5679 1631131
7
OA 1445/2015 with OA 2294/2015 & OA 2030/2015
Because of this huge difference between vacancies and number of aspirants, scope arises for mafia to en cash the scarcity and mint money by trapping innocent candidates in their trap. There is no dearth of IT equipments to induce these candidates in mass copying with promise to get employment by wrong methods. It is sincere endeavor of the respondents to keep the recruitment process just, fair and impartial. This menace, if not tackled while it is at nascent stage, will go out of promotion as anyone got selected by using unfair means would have multiplier effect on the recruitment process. From lakhs of candidates who took examination in different spells, the miscreants have been picked up by using scientific methods taking help of IT and apex institute of the Govt. of India. During the written examination candidates were given 100 questions with four proposed answers, where only one proposed choice was correct. To indicate the correct answer candidates had to darken a bubble of right choice. Therefore, possibility of some bunch of candidates striking the same answer for same question, including right/wrong/unattempt sitting in different classroom/centers seems to be unacceptable unless it is guided by use of common source of unfair means. This derived scientific analysis indicates that number of candidates using these unfair means was on the increasing trend as the examination progress in the subsequent phases. Because of it Respondents have forbidden all the aspirants in Employment Notice that any candidate caught using unfair means would be dealt with severely an action as deemed fit, including criminal action, would be taken by RRC. Hence Respondents were not precluded from taking action against such miscreants. Had the action taken not been restored to, applicant and other such candidates would have occupied the position of genuine, honest and laborious candidates and this would have disturbed the equilibrium. Thus action of Respondents has been justifiable and cannot be termed as arbitrary, illegal and discriminatory. Hence Respondents are not further required to prove the applicant's guilt to hilt. When the applicant had not desisted from using unfair means even after being forbidden through employment notice, the applicant does not deserve any sympathetic consideration or they do not deserve any leniency from the Hon'ble Tribunal as it would entice other such candidates to indulge in unnecessary litigation.
6. That in pursuance to Employment Notice No. 220-E/Open Mkt./2013 dated 30.12.2013 published in Employment News dated 11-17 January 2014, a recruitment process to fill up 5679 vacancies in Group-D in Pay Band of Rs.5200-20200 +GP Rs.1800/- for various divisions Workshops Units was initiated. In the said notification detailed information for the candidates was given. Notification clearly stipulates how to apply, general conditions and invalid applications etc. General condition of the notification also stipulates that mere selection and empanelment does not confer any right of appointment to the candidate. Admission of the candidate at all stage of recruitment will be 8 OA 1445/2015 with OA 2294/2015 & OA 2030/2015 purely provisionally subject to satisfying the prescribed conditions. It has clearly been stipulated that calling of candidates for written examination/document verification does not automatically confer any right upon candidate for his Medical Examination or his appointment on any post of Northern Railway. It was also informed to all concerned that candidates are advised to remain in touch with RRC website for various informations. The said notification under Para 11 also states that misconduct on the part of the candidates at any part of the recruitment process is strictly prohibited and indulgence in the above practices will result in the rejection of the candidature at any time. It was also stated that action as deemed fit necessary including criminal action will be taken by the RRC against candidates found guilty of submitting fabricated forged, tempered certificates and using unfair means during his written examination or PET etc.will be covered in the misconduct.
7. That the applicants appeared in the said selection. The result of the said examination was declared on 20.02.2015 in such a way that result of individual candidate can be seen in the form of his status i.e 'Shortlisted', not Shortlisted" and "withheld" for further stage/process of selection after entering his Roll Number and Control Number in the given space on the RRC Website. This method has been adopted to protect the result file of all shortlisted Candidates from unauthorized access as a safety measures. Sh. Sunil Kumar's result status was shown as "Withheld" for next stage of recruitment process as result of some candidates, including him, was with held for internal enquiries after it was noticed that some unfair means were used by the candidates during the written examination. To find out the copying or scoring through fraudulent activities by using various means like blue tooth, microphone and high fidelity scanner and clandestine devices, some scientific test checks were conducted on the answering pattern on such candidates whose result was withheld. These checks in the form of algorithm system of checking were further sent to the most reputed institution, run by Govt. of India, for statistical analysis and conclusion. The said institute of Govt. of India has confirmed the use of unfair means by this category i.e. 'withheld, excluding 5 candidates. For the reason to maintain the fairness, integrity and trust of the examination, competent authority i.e. Chairman/RRC has decided to cancel the candidature of such candidates, including the candidature of the applicant, for the said examination with decision to debar all of them including the applicant from appearing Railway Examinations and taking a lenient view towards such candidates decided not to initiate criminal proceedings. This position was uploaded on RRC Website on 15.04.15, which is the main source of communication with the candidates as notified in the Employment Notification, for the information of all concerned."9
OA 1445/2015 with OA 2294/2015 & OA 2030/2015 To support his contentions the counsel for the respondents also relied upon the following judgments/orders.
(1) Varun Bhardwaj Vs. State Bank of India & Ors (LPA 155/2013) ( Delhi High Court) (2) Prakash Chand Meena Vs. UOI & Ors (OA 416/2015) with OA 2064/2015 (Amit Kumar Vs. UOI & Ors) (CAT (PB) (3) Shyam Kumar Vs. UOI & Ors. (OA 3447/2015 CAT (PB) (4) OA 291/00359/2015- CAT Jaipur Bench He has also brought to our notice the interim order passed by this Tribunal in OA no. 2561/2016, wherein even interim relief prayed for by the applicants therein was not granted by this Hon'ble Tribunal. The Hon'ble High Court of Delhi at para 23 and 24 of the above referred Varun Bhardwaj's case held as under:
"23. In the present instance, we are of the opinion that the rules of natural justice have not been contravened by the SBI. The above judgment of Palak Modi¸ and the facts that led to such judgment are clearly distinguishable from the case at hand. As we have seen, the application of the principles of natural justice, though vital, ultimately turns on the facts of every individual case. It is not every time a particular action has a consequence that is not LPA 155/2013 Page 16 favourable to the petitioner that the rules may be relied upon as a fallback to nullify such action. First, the petitioner has no vested right to an inquiry, he being merely an entry-level candidate and not employed in any manner by the SBI. He is therefore not entitled to the same terms of service that the petitioners in Palak Modi (supra) could claim by virtue of them actually being employed. His right extends, and is limited to, a fair opportunity to attempt the examination and therefore have a fighting chance at being employed by SBI. His decision to squander away this opportunity by employing unfair means in his attempt at the examination cannot be countenanced simply because the SBI did not first approach him when they discovered that his answers matched perfectly with two other candidates. There is in fact, no need for the SBI to do so. The object of the examination being to select the candidates suitable for such initial appointment, veritable evidence that the petitioner does not fall within that category, does not become unreliable or contrary to the principles of natural justice merely because the petitioner did not have the opportunity to represent against them.10
OA 1445/2015 with OA 2294/2015 & OA 2030/2015
24. The Court is conscious that technology often empowers citizens; at the same time it has the potential to facilitate misuse. In the context of the facts of this case, this Court is not persuaded with the appellant's submission that without tangible material or evidence, the SBI could not have inferred the employment of "unfair means" by candidates generally and the petitioner in particular. Use of electronic devices to transmit information - either in the form of text messages or by use of hidden listening devices which go undetected may be hard to establish. That does not mean that LPA 155/2013 Page 17 patterns which are discernible and are thrown up on application of scientific formulae or statistical models, which leads to further examination of the primary material should be eliminated by the Courts. In the present case, the pattern which emerged showed that the appellant's results in respect of wrong answers matched with some other candidates who also appeared in the New Delhi centre. On further scrutiny, the reasonableness of the suspicion was strengthened by the manner of his attempting the answers. These, in the opinion of the Court, were sufficient basis for the SBI to conclude that unfair means had been employed and withhold his result. The directions sought are, therefore, unavailable in exercise of judicial review discretion under Article 226 of the Constitution. As a result, this Court finds that the impugned judgment and order of the learned Single Judge does not call for interference. The appeal is, therefore, dismissed without any order as to costs.
7. In view of the principles laid down by the Hon'ble High Court and the Tribunals in the above stated cases referred to by the counsel for the respondents, we are of the opinion that the applications are liable to be dismissed.
8. Accordingly, these OAs are dismissed. No order as to costs.
(S.N.Terdal) (Nita Chowdhury ) Member (J) Member (A) 'sk'