Central Administrative Tribunal Principal Bench: New Delhi
OA No.695/2015
Reserved on :08.12.2015 Pronounced on:06.05.2016
Hon’ble Shri Sudhir Kumar, Member (A) Hon’ble Shri Raj Vir Sharma, Member (J)
1. Krishan S/o Shri Hemraj Village PO Rewari Khera, Tehsil Bahadurgarh Distt Jhajjar, State of Haryana 124504. Roll No.50064110.
2. Sateesh Singh S/o Shri Chander Pal Singh Village Chhaprouli, Patti Dhandhan (Arya Nagar), Distt. Bagpat U.P. 250617. Roll No.20004908.
3. Sudhir Kumar S/o Shri Bhoop Singh Village PO Mehrana, Distt Jhajjar, Haryana Pin 124139. Roll No.20043181.
4. Surender S/o Shri Gulab Singh Village Rewari Khera, Tehsil Bahadurgarh Distt Jhajjar, State of Haryana 124504. Roll No.20070402. ...Applicants.
(By Advocate:Shri Harsh Vardhan Sharma)
Versus
1. Secretary, Ministry of Railways Rail Bhawan, Raisina Road, New Delhi-110001.
2. Assistant Personnel Officer, RCC Railway Recruitment Cell, Northern Railway, Lajpat Nagar-I, New Delhi-110024. ...Respondents.
(By Advocate: Shri Shailendra Tiwary)
(OA No.695/2015)
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ORDER
Per Sudhir Kumar, Member (A):
The four applicants of this OA are before this Tribunal, because their candidature with the Railway Recruitment Cell (RRC, in short) for its Open
Recruitment Examination has been rejected, in spite of all the four applicants having claimed to have qualified at all the stages of recruitment, and without explaining the disqualification, if any, which has been alleged to be not only illegal, but also against the basic principles of natural justice, besides being arbitrary, and based on the whims and fancies of the respondents.
2. The facts of the case lie in a narrow compass. In response to the
Advertisement issued through Annexure-A, the applicants had applied to the
RRC, Northern Railway, and the Admit Card had been issued to them. A written examination was conducted, and all the four applicants qualified in the said examination, and they were later even called for verification of their documents, and medical examination etc. though through letters Annexure-
B (Colly). However, when the results were announced the computer downloaded copy of the results having been annexed at pages 21, 25, 31 and 35 of the Paper Book, the applicants found that their cases had been rejected, by showing the legend in the status column as “Case rejected by the Experts”. Thereafter, the applicants represented to the respondents through letter dated 04.02.2015 (Pages 37 to 40 of the Paper Book) by
Speed Post, but they received no response. Hence this O.A.
3. The applicants have submitted that the respondents neither provided any specific reason as to on what basis, their cases were rejected, nor any opportunity was provided to them to explain anything before their (OA No.695/2015)
(3) disqualification, and in such circumstances, the action of the respondents was hit by bias, mala fide , unreasonableness and lack of objectivity.
4. The applicants have taken the ground that they are fit, and upto the mark of the standard prescribed by the respondents in their recruitment notice, and were entitled for being selected, and placed in the order of merit, and the said act of the respondents is prejudicial to their interests, and the rejection of their candidature was an infringement of their fundamental rights guaranteed by the Constitution. In the result, the applicants have prayed for the following reliefs, and interim relief, though the interim relief was never granted to them:
“8. Relief Sought
A) To issue an appropriate order or direction to Respondents to call the records in relation to the recruitment process under advertisement No.220-E/Open Mkt/RRC/2012 of the applicants; and
B) To issue an appropriate order or direction to the Respondent to consider the applicants/petitioners in merit in the final selection list for the posts advertised under advertisement No. 220-E/Open Mkt/RRC/2012 in accordance with law; and
D) Pass such and other orders, as this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case.”
“9. Interim Order, if any, prayed for
a) issue appropriate order and/or directions to Respondents to STAY the selection procedure for the post advertised under advertisement No.220-E/Open Mkt/RRC/2012
b) issue appropriate order and/or directions to Respondents to allow the petitioners be consider provisionally for the group D post advertised under advertisement No.220-E/Open Mkt/RRC/2012 till the disposal of this O.A.”
(OA No.695/2015)
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5. The respondents filed their counter reply on 10.07.2015. They took a preliminary objection that no cause of action had accrued in favour of the applicants to file the present OA, as no statutory, constitutional, or enforceable right of the applicants had been infringed by the respondents, and, therefore, the OA deserves to be dismissed. They had also raised a further preliminary objection that the OA is bad for non-joinder of the necessary parties, inasmuch as the applicants have not impleaded any person, who is likely to be adversely affected, if their prayers are allowed, as an opposite party respondent, and, therefore, the O.A. deserves to be dismissed in limine.
6. It was further submitted by the respondents that the Employment
Notification, in pursuance to which the applicants had applied for, had clearly stipulated that the candidate should fill up the Application Form in his/her own handwriting. It was further made clear that the admission of the candidate at all stages of recruitment will be purely provisional, subject to his satisfying the prescribed conditions. It was admitted that the present applicants had appeared in the Written Examination, followed by the Physical
Efficiency Test, both of which were qualifying in nature. Thereafter, they were called for the verification of documents, and Medical Examination.
During that process, it was decided by the Three Member Committee of the
Railway Officers to make a reference for matching of the hand- writing/signatures of the applicants on the relevant papers i.e. Application
Form, OMR Sheet and the Document Verification Proforma.
7. It was pointed out that the Document Examination Expert had advised that the writing/signatures of the applicants on the relevant documents do not match, and, accordingly their cases were rejected by the Competent (OA No.695/2015)
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Authority, i.e. Chairman/RRC, and their status was uploaded on the RRC website. It was reiterated that since the candidature of the applicants at all stages was only provisional, and, therefore, on receipt of the Document,
Expert’s report regarding mis-match of the handwriting/signatures of the candidates, the status was appropriately uploaded on the website of the
RRC/Northern Railway, regarding the rejection of their candidature on the basis of the Documents Verification report, as submitted by the Forensic
Document Expert, duly nominated by the Government of India. It was submitted that the plea of the applicants in the present O.A. cannot be accepted, as the respondents have acted as per rules, and any deviation from the same for any specific individuals, would not be justified, and is against the uniform policy adopted by the Administration.
8. In regard to the plea of the applicants that they had not been granted any opportunity of hearing, and that the respondents had not followed the principles of natural justice before cancellation of their candidature, the respondents had cited the following three cases in support of their contention that there was no need to provide them any opportunity of hearing in the given circumstances:-
1) Chairman Board of Mining Examination and Chief Inspector of Mines, and Another vs. Ramjee, AIR 1977 SC 965.
2) Umrao Singh Chaudhary vs. State of Madhya Pradesh & Another, (1994) 4 SCC 328.
3) Syndicate Bank & Others vs. Venaktesh Gururao Kurati, JT (2006) 2 SC 73.
9. The respondents had, therefore, prayed that the OA is bereft of any merit, and the same may be dismissed. (OA No.695/2015)
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10. The applicants filed their rejoinder on 02.12.2005, more or less reiterating their contentions, as already made out in the OA, and submitting that the respondents have not brought forward any proof that any
Committee of the Railway Officers, as stated by the respondents, had ever been constituted, and any papers had been sent for examination by Forensic
Document Expert, nominated by the Government of India, and as to whether any report of any such expert exists or not. It was reiterated that the rejection of their candidatures was purely based on the whims and fancies of the respondents, and no explanation on that report had been sought from them, before taking any adverse decision, and that the respondents have failed to observe the principle of natural justice audi alteram partem in rejecting their candidatures, and that they have not been given a fair opportunity of hearing. It was also submitted that the respondents have suppressed important facts and documents, and have neither produced any expert report, nor explained their actions. It was, therefore, submitted that the action taken by the respondents in cancelling their candidatures lacks transparency, and that they have even suppressed or concealed the important facts from this Tribunal and they have failed to produce any report of the Expert or of any Committee before this Tribunal. It was, therefore, again prayed that this Tribunal may refer their papers and documents to any prestigious scientific laboratory like Delhi Police F.S.L., or C.F.S.L., for comparison of the thumb impressions and handwriting of applicants, in order to rule out any ambiguity, and had prayed that the OA deserves to be allowed.
11. Heard. During the course of arguments, learned counsel for the applicants relied upon four judgments. Firstly, the Kolkata High Court in (OA No.695/2015)
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W.P.C.T No.182/2013 in the matter of Pappu Prasad vs. Union of India &
Others, has held as follows:
“This Court on the earlier occasion while deciding the similar matter specifically held that the candidate concerned should be given an opportunity of hearing and also opportunity of cross examining the handwriting expert before imposition of the penalty.
The respondent authorities undisputedly cancelled the candidature of the petitioner without observing the principles of natural justice specially by not granting an opportunity of hearing and also refusing to grant opportunity of cross examining the hand writing experts who allegedly found mismatch of the hand writing/signature of the petitioner with the application form.
...... (Not produced here)
The respondent authorities should have granted an opportunity to the petitioner to cross examine the concerned handwriting expert before taking the decision regarding the cancellation of the candidature of the said petitioner on the ground of mismatch of handwriting/signature with the application form.
For the aforementioned reasons, we are unable to uphold the decision of the respondent authorities regarding cancellation of the candidature of the petitioner and refuse to affirm the decision of the learned Tribunal, as mentioned in the judgement and order dated 19th March, 2013.
Therefore, we set aside the impugned judgment and order dated 19th March, 2013 passed by the Central Administrative Tribunal in O.A. 490 of 2012 and also quash the decision of the respondent authorities regarding cancellation of the candidature of the petitioner for recruitment to Group 'D' post against employment notice no. 0106 on the ground of mismatch of handwriting/signature with the application form.” (OA No.695/2015)
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12. Secondly, in the matter of Raj Narayan Paswan & Others vs.
Union of India & Others the Kolkatta High Court in W.P.C.T
No.293/2013 has held as follows:
“The respondent authorities herein undisputedly, cancelled the candidatures of the petitioners without observing the principles of natural justice by not giving an opportunity of hearing to the said petitioners and also refusing to grant opportunity of cross- examining the handwriting experts who allegedly found mismatch of the handwriting/signature/LTI of the petitioners herein with the respective application forms.
Following the earlier decision of the Division Bench of this court in W.P.C.T. 178 of 2013, we also set aside the impugned judgment and order dated 19th March, 2013 passed by the Central Administrative Tribunal in O.A. 1171 of 2012 along with other original applications and also quash the decision of the respondent authorities regarding cancellation of the candidatures of the petitioners for recruitment to Group 'D' post against employment notice No. 0106 on the ground of mismatch of handwriting/signature/ LTI of the petitioners with the respective application forms.
The respondent authorities are directed to take appropriate decision in respect of the petitioners afresh without any further delay after granting a reasonable opportunity of hearing to the concerned candidates namely, the petitioners herein and also granting an opportunity of cross-examining the handwriting experts who found mismatch of the handwriting/signature/LTI of the said petitioners with the respective application forms.
Needless to mention that the respondent authorities will also communicate the decision to the petitioners herein immediately after de novo consideration of the matter in terms of this order.”
13. It was further cited that in the matter of Shushil Kaushik vs. Govt. of NCT of Delhi & Others decided on 17.08.2011 in OA No.3389/2010, this
Tribunal has held as follows:
“8. Perusal of order of debarment dated 27.9.2010 shows it is a general order referring to some of the candidates whose handwriting/signature/thumb impression did not match with the samples taken by the Committee from the (OA No.695/2015)
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candidates. However, it nowhere states as to in which category applicants case falls in; whether his handwriting did not match or his signature did not match or his thumb impression did not match. Even otherwise, it is specifically stated by the counsel for the applicant that before passing such an order, no show cause notice was given to the applicant as a result he could not even defend himself effectively before the Board. Definitely the order passed on 27.9.2010 has serious implications affecting his career for all times to come, therefore, the least that was required was to give him a show cause notice so that he could have defended himself. Debarring a person from appearing in any examination to be conducted by DSSSB for next 5 years is definitely a very harsh decision which could not have been passed without affording an opportunity to the applicant. Even otherwise, perusal of order shows respondents have not even mentioned specifically as to what was the mismatch in the case of applicant; whether it was with regard to his hand writing, signature or thumb impression. This order, in fact, seems to have been passed in a stereotype manner without even giving the basic details to the each candidate, therefore, it gets vitiated on this ground also. Even otherwise, in case respondents had any doubt with regard to the handwriting, signature or thumb impression of the candidates, they should have referred the matter to the Expert on the subject, namely, CFSL or some other institute to find out the truth after taking sample of handwriting, signature or thumb impression from the candidates. Not having done so, we are satisfied that order dated 27.9.2010 cannot be sustained in law. The same is accordingly quashed and set aside. However, liberty is given to the respondents to pass fresh orders in accordance with law after giving show cause notice to the applicant and after considering his reply and if need be, after referring the matter to the Expert on the subject. This shall be done within a period of 2 months from the date of receipt of a copy of this order so that the applicant knows his fate.”
14. Lastly, it was cited that in the matter of Sanjay Kumar vs. Govt of
NCT of Delhi & Others decided on 21.07.2011 in OA No.3415/2010 & OA
No.65/2011, this Tribunal has held as follows:
“5.Having heard the learned counsel representing the parties and with their assistance examining the records of the case, we are of the view that unless the applicants were issued show cause notice and heard in the matter, the orders as impugned in the present OAs could not be (OA No.695/2015)
(10) passed. It is no doubt true that the allegations made against the applicants are of serious nature. Impersonation in examination is out and out cheating, which would not only make an undeserving candidate to hold a public post, but the same would be also at the cost of someone who may be deserving to hold the post. The matter indeed needed to be taken seriously, but we are of the firm view that such an action, which, as mentioned above, has not only resulted in non appointment of the applicants, but would also debar them from appearing in any examination to be conducted by the respondent Board for the next five years, is too severe a punishment to be inflicted without giving even a chance to the concerned candidate to prove his innocence. We would, at this stage, not like to comment with regard to observations made in the impugned order as that may, in the ultimate analysis, when the matter is re-decided, prejudice the case of one or the other party. Suffice it may, however, to say that from the impugned order and the counter reply filed on behalf of the respondents, it appears, even though prima facie, that the signatures and/or thumb impression of the candidates were not examined by any handwriting and finger-print expert. Our observation made above is only with a view to point out that there could be moot points to be urged by the applicants while calling in question the impugned orders.
6. We, as mentioned above, would not like to go into the controversy on merit at this stage and our observations made above, as mentioned, are prima facie or tentative. Inasmuch as, adverse order with deterrent consequences, such as debarring the applicants to appear in any examination of the respondent Board for the next five years, have been passed without even putting the applicants to notice, the same needs to be set aside on the ground that it violates the principles of natural justice. That being so, we set aside the impugned order dated 27.9.2010, with liberty to the respondents to proceed afresh in the matter and pass final orders after putting the applicants to notice and giving them chance to prove their innocence even by permitting to bring on record such material as may be relevant, and opinion of handwriting and finger print expert. Surely, if the orders as impugned are to be reiterated, the same shall be speaking and containing reasons for rejecting the defences, if any, projected by the applicants.
7. The two Original Applications are disposed of in the manner fully indicated above, leaving, however, the parties to bear their own costs.”
(OA No.695/2015)
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15. We have given our anxious consideration to the facts and the law concerning this case. From the aforesaid cited judgments, it is seen that while in Pappu Prasad vs. Union of India & Others (supra) an adherence to the principles of natural justice, even in case of suspected impersonation, had been given importance by the Kolkata High Court, and the same course of action had been followed by the same High Court in Raj Narayan
Paswan & Others vs. Union of India & Others. In Sushil Kaushik vs.
Govt. of N.C.T. & Others in OA No.3389/2010, a Coordinate Bench of this
Tribunal had struck down the debarment of a person from appearing in any examination to be conducted by the DSSSB for the next 5 years as definitely a very harsh decision, but liberty had been given to the respondents to pass fresh orders, in accordance with law, after giving a Show-Cause Notice to the applicant, and after considering his reply, and if need be, after referring the matter to the Expert on the subject. It appears, therefore, that the applicants of the present case cannot be provided shelter behind the order passed in Sushil Kumar’s case (supra). In Sanjay Kumar vs. Govt. of
N.C.T. of Delhi & Others (supra), this Tribunal had decided the case without going into the controversy on merits, and on the basis of observations, which were prima facie or tentative, because in that case also an order of debarment from appearing for the next five years had been passed in the case of the applicants. No such orders have been passed in regard to the applicants before us. Therefore, it is clear that benefit of this cited judgment also does not enure to the applicants before us.
16. We have also examined the law, as laid down by the Supreme Court in the three judgments cited by the learned counsel for the respondents in their counter reply. In the matter of Chairman Board of Mining (OA No.695/2015)
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Examination and Chief Inspector of Mines, and Another vs. Ramjee
(supra), the Supreme Court has held as follows:
“14...... But then we cannot look at law in the abstract or natural justice as a mere artifact. Nor can we fit into a rigid mould the concept of reasonable opportunity. Shri Gambhir cited before us the decisions in Teredesai(1); Management of DTU(2) and Tandon(3); and one or two other rulings. The ratio therein hardly militates against the realism which must inform reasonable opportunity' or the rule against bias. If the authority which takes the final decision acts mechanically and without applying its own mind, the order may be bad, but if the decision-making body, after fair and independent consideration, reaches a conclusion which tallies with the recommendations of the subordinate authority which held the preliminary enquiry, there is no error in law. Recommendations are not binding but are merely raw material for consideration. Where there is no surrender of judgment by the Board to the recommending Regional Inspector, there is no contravention of the canons of natural justice. We agree with Shri Gambhir that the adjudicating agency must indicate in the order, at least briefly why it takes the decision it does unless the circumstances are so clear that the concluding or excretal part of the order speaks for itself even regarding the reasons which have led to it. It is desirable also to communicate the report of the Inquiry Officer, including that part which relates to the recommendation in the matter of punishment, so that the representation of the delinquent may be pointed and meaningful.
15. These general observations must be tested on the concrete facts of each case and every miniscule violation does not spell illegality. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.”
(Emphasis supplied) (OA No.695/2015)
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17. In Umrao Singh Chaudhary vs. State of Madhya Pradesh (supra), the Supreme Court had held as follows:
“4. Though the contention of mala fides has been repeated by the learned Senior Counsel, when we pointed out, that the petitioner had not made any specific allegation against any specified officer or holder of the office, nor impleaded any officer or holder of the office as a party respondent, in fairness, the learned Senior Counsel did not pursue the line of argument. Nonetheless it was contended that the petitioner was entitled to be afforded an opportunity of being heard before passing the impugned notification and the order passed in violation thereof offends the principle of natural justice. We find no force in the contention. Section 14 engrafts an elaborate procedure to conduct an enquiry against the Vice-Chancellor and after giving reasonable opportunity, to take action thereon for his removal from the office. Section 52 engrafts an exception thereto. The condition precedent, however, is that the State Government should be satisfied, obviously on objective consideration of the material relevant to the issue, as on record, that the administration of the University cannot be carried out in accordance with the provisions of the Act, without detriment to the interest of the University, and that it is expedient in the interest of the University and for proper administration thereof, to apply in a modified form, excluding the application of Sections 13 and 14, etc. and to issue the notification under Section 52(1). By necessary implication, the application of the principle of natural justice has been excluded. In view of this statutory animation the contention that the petitioner is entitled to the notice and an opportunity before taking action under Section 52(1) would be self- defeating. The principle of natural justice does not supplant the law, but supplements the law. Its application may be excluded, either expressly or by necessary implication. Section 52 in juxtaposition to Section 14, when considered, the obvious inference would be that the principle of natural justice stands excluded. (OA No.695/2015)
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5. Obviously for this reason, to satisfy ourselves whether the notification is founded upon any record and whether the reasons given in support thereof, are relevant to the issue, the record was summoned, and has been made available to us. The note placed before the Governor also was placed. It is an elaborate note, pregnant with material details touching the maladministration of the University. From the record we have seen that the Government considered the above material and the Governor after due satisfaction had exercised the power under Section 52(1). Though the High Court held that the action under Section 52 is legislative action, it is obviously illegal in the light of the decision of this Court in S.R. Bommai v. Union of India' wherein this Court considered the presidential proclamation under Article 356 and held that the action is not beyond the ken of judicial review. The action 1 (1994) 3 SCC 1 under Section 52 is only statutory action, but subject to judicial review. However, the court would not sit in appeal over the opinion of the State Government. The statute gives power to the State Government. The Governor exercised his power with the aid and advice of the Council of Ministers in issuing the notification under Section 52. Therefore, though it was a statutory notification, the condition precedent is that the satisfaction of the State Government, i.e., the Governor, with the aid and advice of the Council of Ministers is of the situation mentioned in Section 52(1) and for reasons to be recorded therein, for better administration of the University, the State Government was satisfied that a situation had arisen in which the administration of the University could not be carried on in accordance with the provisions of the Adhiniyam and for better administration whereof and to prevent the detriment to the interest of the University, the State Government issued the notification "for the reasons mentioned therein" and directed that the provisions mentioned therein under Sections 13 and 14 shall not apply. When those facts are present and the State Government were satisfied of the situation contemplated under Section 52(1), though the court may differ from that formation of satisfaction when the court is called upon in an appeal against the said satisfaction and may come to a different conclusion, we would not be justified to differ from the conclusion in our judicial review under Article 136 or of the High Court under Article 226 of the Constitution. Though the Academic Council etc. had been dissolved, the correctness thereof is not the subject- matter of this special leave petition. We are not called upon to enter into that question. Therefore, from the (OA No.695/2015)
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records we are satisfied that the State Government were justified in issuing the notification under Section 52(1) of the Adhiniyam
(Emphasis supplied)
18. In Syndicate Bank & Others vs. Venkatesh Gururao Kurati,
(supra), the ratio arising from that judgment also is that to sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him from non-observance of principles of natural justice. We do not find that the applicants before us have been able to discharge this onus cast upon them.
19. In the instant case, in Para-11 of the Advertisement itself, the
“misconduct” had been prescribed, as follows:
“11. Misconduct:
11.1 Candidates are warned that they should not furnish any particulars that are false or suppress any material information while filling up Application Form.
11.2 Candidates shall not bring or attempt to bring any political or other influence to further his/her interest in respect of recruitment.
11.3 Misconduct on the part of the candidate at any part of the recruitment process is strictly prohibited.
11.4 Indulgence in the above practices will result in the rejection of the candidature at any time.
11.5 Action as deemed fit necessary including criminal action will be taken by the RRC against candidates found guilty of submitting fabricated/forged/tampered certificates, using unfair means during written examination or PET, misbehaviour at venues of written exam centres or where PET is conducted etc.”
20. It is settled law that fraud certainly vitiates every single right and remedy that may have accrued to the applicants otherwise. In this case, (OA No.695/2015)
(16) impersonation on behalf of the four applicants before us has been established by the respondents, through the opinion of the hand-writing
Expert. Such being the case, the applicants cannot be allowed to plead before this Tribunal that they still had a right of audi alteram partem, and nemo judexin parte sua, when the facts as discerned by the duly appointed forensic Hand-writing and Document Expert find that there was a mis-match in the hand-writing, and signatures etc., in all the documents submitted on behalf of the applicants, at various stages of the recruitment process.
Therefore, the applicants cannot now claim for being granted the right of being heard, as pleaded by them under the principles of audi alteram partem and nemo judexin parte sua.
21. We are in respectful agreement with the observations made by the
Hon’ble Apex Court in the above three judgments cited by the respondents, before which the two Kolkata High Court judgments cited by the applicants cannot stand. We also hold that the principles of natural justice cannot be invoked in such cases if a fraud on the part of the applicants, or on their behalf, has been established, and they cannot be allowed to plead that still they ought to have been provided a right of fair hearing, under the Latin maxims cited by them. Therefore, we find no merit in the case of the applicants, and the OA is dismissed, but there shall be no order as to costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A)
/kdr/