Vikas Kumar vs Union Of India And 2 Ors.
2015 Latest Caselaw 1831 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 28
 

 
Case :- WRIT - A No. - 7386 of 2015
 

 
Petitioner :- Vikas Kumar
 
Respondent :- Union Of India And 2 Ors.
 
Counsel for Petitioner :- Rahul Srivastava,Mr. Umesh Narain Sharma
 
Counsel for Respondent :- A.S.G.I.,S.C.,S.K. Pandey
 

 
Hon'ble Mahesh Chandra Tripathi,J.

1. Heard Shri Umesh Narain Sharma, Senior Advocate assisted by Shri Rahul Srivastava for the petitioner and Shri Sanjeev Kumar Pandey for the respondents.

2. By means of present writ petition, the petitioner has prayed for quashing the order dated 13.1.2015 passed by the Deputy Director, Staff Selection Commission (Central Region), 8-AB, Beli Road, Allahabad-respondent no.3 on approval of the Regional Director, Staff Selection Commission (Central Region), 21-23, Lowther Road, Allahabad-respondent no.2. He has further prayed for direction commanding the respondent nos. 2 and 3 to issue necessary directions to the office of Commissioner of Customs (General), New Custom House, Ballad Estate, Mumbai regarding issuance of appointment letter to him in pursuance of his final selection on the post of Tax Assistant in the office of Commissioner of Customs (General), New Custom House, Ballad Estate, Mumbai.

3. The matter was again taken up on 11.3.2015 and this Court had passed the following orders:-

"Heard Shri Umesh Narain Sharma, Senior Advocate assisted by Shri Rahul Srivastava for the petitioner and Shri Sanjeev Kumar Pandey, learned counsel for the respondents.

This Court vide order dated 6.2.2015 had passed the following orders:-

"Sri Sanjeev Kumar Pandey, learned counsel has put in appearance on behalf of the respondents by filing his parcha today, is taken on record.

Heard Sri Umesh Narain Sharma, assisted by Sri Rahul Srivastava, learned counsel for the petitioner and learned counsel for the respondents.

Sri Umesh Narain Sharma, learned Counsel has placed reliance upon the judgment of the Delhi High Court passed in Writ Petition (C) No.7484 of 2013 dated 17.12.2014 Ashwani Kumar vs. Union of India and others.

Learned Counsel for the respondents prays for and is granted two weeks' time to seek instructions in the matter.

Put up this matter as fresh on 23rd February, 2015."

Again the matter was taken up on 23.2.2015 and on the said date, a last opportunity of two weeks' and no more time had been granted to learned counsel for the respondents to obtain instructions in the matter.

Today when the matter was taken up, learned counsel for the respondents prays for an adjournment on the basis of a letter dated 20.2.2015 sent by Shri A.K. Jha, Assistant Director (Legal) and while seeking adjournment, no affidavit has been filed in the matter.

Put up this matter as fresh on 30.3.2015.

It is directed that meanwhile, if the order dated 6.2.2015 has not been complied with, Shri A.K. Jha, Assistant Director (Legal) shall remain present before this Court on the next date. 

4. Thereafter, the matter was again taken up on 4.8.2015 and this Court had passed following order:-

"In para-19 of short counter affidavit, it has been averred that the Commission has taken a decision to assail the judgment of Hon'ble Delhi High Court dated 17.12.2014 in Writ Petition (C) 7484/2013 by means of SLP. This affidavit was sworn in the month of March, 2015 and considerable time has been lapsed in between.

Learned counsel for the contesting respondents prays for and is allowed three days time to obtain instructions whether any SLP has been filed or not.

List this matter again on 10.8.2015 in the top 10 cases of the cause list." 

5. It appears from the record that the petitioner is a resident of District Vaishali and belongs to Other Backward Classes category in the State of Bihar. The petitioner has qualified more than 15 competitive examinations conducted by various Selection Commissions/Boards. He applied for and was declared qualified in the final result of Combined Graduate Level Examination-2012 declared on 8.2.2013, conducted by Staff Selection Commission (North Eastern Region), Guwahati. The petitioner was recommended to be appointed on the post of Tax Assistant in the office of Commissioner of Customs (General), New Custom House, Ballad Estate, Mumbai.

6. A show cause notice dated 3.1.2013 was issued to him alleging, that the petitioner had committed fraud and malpractice in Sub Inspector in CPO's, Assistant Sub-Inspector in CISF and Intelligence Officer (IO) in Narcotics Control Bureau (NCB) Examination-2011 and accordingly, he was directed to show cause as to why his candidature for Examination-2011 may not be cancelled. The petitioner appeared in person before the respondents on 23.1.2013. He was directed to sign 40 times in Hindi as well as in English on blank sheets of paper. His left and right thumb impression were also taken by the respondents. By the Office Memorandum dated 6.2.2013 the candidature of the petitioner for the Examination-2011 was cancelled and the petitioner was debarred for a period of five years from the date of written examination dated 28.8.2011 of the Examination-2011 from appearing in any of the examinations conducted by the Commission. Being aggrieved by the aforesaid show cause notice dated 3.1.2013 and the final order dated 6.2.2013, the petitioner filed a Writ Petition No.57401 of 2013. The said writ petition was allowed on 27.5.2014 by quashing the impugned orders therein and the respondents were directed to reconsider the matter after disclosing the material to the petitioner on the basis of which the charge of impersonation is sought to be sustained and pass a final order after giving opportunity to the petitioner to submit a detailed reply.

7. In the meantime, the office of the Commissioner of Customs (General), New Custom House, Ballad Estate, Mumbai on the basis of final result dated 8.2.2013 for the post of Tax Assistant, sent a call letter dated 9.11.2013 to the petitioner for appearing before the authority concerned for the purpose of verification of documents as well as medical examination. The petitioner appeared before the Commissioner of Customs (General), New Custom House, Ballad Estate, Mumbai and produced the required documents. He was also medically examined and declared fit. When the appointment letter was not issued to him, he made a representation before the respondent no.4 on 26.6.2014. A show cause notice was issued to the petitioner on 9.9.2014, by which the earlier charge of impersonation was changed to the charge of malpractice/unfair means. Inspite of the order of this Court dated 27.5.2014, no material/evidence was served upon the petitioner alongwith the show cause notice dated 9.9.2014. The petitioner filed a detailed reply dated 30.9.2014, denying all the allegations levelled against him.

8. Being aggrieved by the inaction of the respondents, the petitioner again preferred a Writ Petition No.62827 of 2014 challenging the show cause notice dated 9.9.2014. The said writ petition was disposed of on 24.11.2014 with a direction to the respondents to consider the reply of the petitioner dated 30.9.2014 and pass order within two months. The petitioner preferred Special Appeal No.1146 of 2014 challenging a part of the order dated 24.11.2014 by which this Court directed the respondents to lodge a first information report against the petitioner. The Special Appeal is still pending. By the impugned order dated 13.1.2015 the candidature of the petitioner for the Examination-2011 has been cancelled and he has been debarred for a period of three years since 28.8.2011 from appearing in any of the examinations conducted by the Staff Selection Commission on the ground of cheating with one Ashwani Kumar.

9. It has been averred in the writ petition that Ashwani Kumar, who has been named alongwith the petitioner, was also issued an order dated 9.2.2013 while he was already inducted into the service and was also serving as Assistant Sub Inspector (Executive) in Central Industrial Security Force. By the order dated 9.2.2013 the services of Ashwani Kumar were terminated and he was further debarred to appear in any of the examinations conducted by the Staff Selection Commission. Shri Ashwani Kumar challenged the said order dated 9.2.2013 before Delhi High Court by way of Writ Petition (C) No.2514 of 2013. Several other candidates, who were facing the similar stigma, also preferred writ petitions before Delhi High Court. The Writ Petition (C) No.2514 of 2013 filed by Ashwani Kumar as well as the bunch of writ petitions were heard by Delhi High Court and vide order dated 30.5.2013 all the writ petitions were allowed and the order dated 9.12.2013 was set aside. Thereafter, the respondents again issued a show cause notice to Ashwani Kumar, alleging malpractice and unfair means in the examination. The aforesaid show cause notice was again assailed by Ashwani Kumar before Delhi High Court in Writ Petition (C) No.7484 of 2013 (Ashwani Kumar vs. Union of India and others). Hon'ble Delhi High Court, after hearing the parties vide order dated 17.12.2014 allowed the aforesaid writ petition and set aside the impugned orders dated 9.10.2013 and 21.11.2013 therein and also directed the respondents to allow the petitioners to continue the service so allotted to them.

10. Learned counsel for the petitioner submits that the impugned order has been passed without furnishing any evidence or material whatsoever to the petitioner. The petitioner has also not been afforded any opportunity of hearing to defend his case.  Whole proceeding has been carried out at the back of the petitioner in an ex-parte manner. For the first time after four years the respondents have passed the impugned order dated 13.1.2015 on the ground of cheating with one Ashwani Kumar. He submits that since Ashwani Kumar has already been held to be innocent by the Division Bench of Hon'ble Delhi High Court  and the impugned orders issued by the respondents have been quashed by the Delhi High Court, the charges levelled against the petitioner are absolutely false and frivolous.

11. Learned counsel for the petitioner has also placed his reliance on a Division Bench judgment of Delhi High Court in Writ Petition (C) 9055/2014 and C.M. No.20669-670/2014 (Staff Selection Commission & another vs. Sudesh) decided on 19.12.2014. In the aforesaid writ petition, the Staff Selection Commission challenged the common order dated 30.7.2014 passed by the Central Administrative Tribunal in OA No.930/2014 (Sudesh vs. Staff Selection Commission & ors) by which the Tribunal allowed the Original Application and quashed the second show cause notice dated 28.1.2014 issued to the applicant for adopting malpractice/cheating in Tier-II examination. The Tribunal directed the petitioner to declare the result of the respondent applicant and other applicants appeared in Combined Graduate Level Examination-2012 and to allocate them the service for which they are found eligible on the basis of pure merit. The Delhi High Court dismissed the writ petition and held in paragraph 12 to 16 as follows:-

"12. We have heard learned counsel for the petitioner, perused the impugned order and the relevant record and considered the submissions. The first show-cause notice was quashed by the Tribunal, firstly on the ground that it lacked in material particulars inasmuch, as, it did not contain any details of the alleged malpractice/ copying and the modus operandi allegedly adopted by the applicant in coming to the conclusion that the applicant had resorted to any malpractices/ copying in the Tier-II examination. It is, precisely, for this reason that the Tribunal required the furnishing of details, as aforesaid in paragraphs 20 to 24 of its order dated 22.11.2013. The rationale behind the petitioner SSC being required to furnish the details was simply that the applicant and other candidates could not be condemned on the basis of vague and non-specific allegation of a serious nature, which impinge on their candidature and future prospects. If, according to the petitioner, malpractice/ cheating had been resorted to by the applicant and the other candidates, it was essential that such candidates were, at least, informed of the basis on which it had been concluded, or a prima-facie view formed, that such malpractices/ act of cheating had been undertaken. The petitioner should have given the reasons for its said conclusions, by disclosing as to what was the analysis undertaken by the experts/ outside agency; what was the pattern discerned by the outside experts upon analysis of the answer-sheets of all such candidates, and; that the disclosed pattern could lead to a reasonable inference ? with a very high probability/ near certainty of cheating/ malpractice. Without such disclosure, the applicant and other candidates were left in the dark, not knowing how to meet the serious allegations made against them, except by simply denying the same ? which they did.

13. A comparison of the two show-cause notices issued gives the impression that the petitioner merely window-dressed the earlier show-cause notice, and served the same upon the applicant again. In fact, there was hardly any difference in the two. The show-cause notice dated 28.01.2014 issued to the respondent-applicant in its entirety reads as follows:

? SHOW CAUSE NOTICE

1. Whereas Shri Sudesh, Son of Shri Parvinder Kumar R/o H.No.228, Gali No.2, Ambedkar Nagar, Haiderpur, Delhi was a candidate of Combined Graduate Level Examination 2012 which was notified in the Employment News dated 20.04.2012 and appeared with Roll number 2201520498 for the said examination.

2. Whereas Shri Sudesh was provisionally called for Computer Proficiency Test (CPT)and interview cum personality Test of the aforesaid examination and appeared in the said CPT and Interview on 12.11.2012 and 01.01.2013 respectively.

3. Whereas the Commission, the Competent Authority in the matter, has made a conscious decision with a view to protecting the integrity of the selection process and to prevent candidates who are prima facie found to indulge in unfair means in such examination from entering into government service through such manipulative practices.

4. Whereas the Commission gets regular post-examination scrutiny and analysis of performance of the candidates in objective type multiple choice question papers conducted with the help of experts who have proven expertise in such scrutiny and analysis and had undertaken such scrutiny and analysis in the case of written examination papers of the aforesaid examination.

5. Whereas incontrovertible and reliable evidence has emerged during such scrutiny and analysis that Shri Sudesh had resorted to malpractice/unfair means in the said papers in association with other 46 candidates/ candidates in Paper I of Tier II and 44 with other candidates/ candidates in Paper II of Tier II.

6. Now, therefore, Hon?ble CAT, New Delhi directed vide its order dated 22.11.2013 in OA No. 2404/2013. Sh. Sudesh son of Sh. Parvinder Kumar is hereby informed that he had restored to malpractice with the candidates as per list enclosed.

7. In view of the above he is directed to show cause within 10 days of issue of this detailed show cause notice as to why his candidature may not be cancelled and he may not be debarred from the Commission?s examination for the next five years.?

14. Though the same makes a mention in paragraph 6 of the list of candidates ? in collusion with whom the applicant allegedly resorted to malpractice, once again, the petitioner failed to provide the basis for the allegation of malpractice/ copying.

15. In our view, therefore, the Tribunal was justified in quashing the second show-cause notice which suffered from the same lacunae of being vague and devoid of any relevant particulars, and there was no purpose in permitting the petitioner to deal with the replies and pass any further order on the basis of such a vague show-cause notice. The said show-cause notice did not fulfill the basic requirements of principles of natural justice inasmuch, as, the respondent-applicant could not effectively have met the allegations made against him ? except to deny the same (which he did), in view of the show-cause notice itself being completely vague and devoid of particulars.

16.Consequently, we find no merit in the present petition and dismiss the same."

12. Shri Sanjeev Kumar Pandey, learned counsel for the respondents, on the other hand, submits that the petitioner appeared and was selected in the final result of Combined Graduate Level Examination-2012.  He was issued the show cause notice dated 9.9.2014 as to why his candidature in recruitment of SI in CPOs ASI in CISF & Intelligence Officer (IO) in Narcotics Control Bureau (NCB) Examination, 2011 should not be cancelled and also why he should not be debarred for a period of three years from appearing in any of the examination conducted by the Staff Selection commission. He filed a Writ Petition No.62827 of 2014, which was disposed of on 24.11.2014 with direction to decide the reply of the petitioner dated 31.9.2014 within two months. The Commission has carefully considered the reply dated 31.9.2014 of the petitioner. In the written examination for Paper-II, the petitioner and Shri Ashwani Kumar were seated in the same venue in one row, one after the other. There was very high matching of answers of both the candidates. The extant of such matching, including matching of wrong answers, cannot happen by chance and clearly establishes collusion among the candidates to copy or to get the answers from a common source. The Commission has come to the conclusion that the petitioner resorted to malpractice/unfair means in the same Examination and cancelled the candidate of the petitioner in the said examination. The petitioner was also debarred for a period of three years from the date of examination i.e. 28.8.2011 from appearing in any of the examination conducted by the Staff Selection Commission. The petitioner filed a Writ Petition No.62827 of 2014, which was disposed of on 24.11.2014. In compliance of the order of this Court dated 24.11.2014, the representation of the petitioner has been rejected. The petitioner filed a Special Appeal No.1146 of 2014 against the order dated 24.11.2014, which is still pending. Meanwhile, the petitioner filed the present writ petition claiming the same benefit as provided to Shri Ashwani Kumar. The Commission is considering to file a SLP against the judgment dated 17.12.2014 before Hon'ble Supreme Court.

13. It is apparent from the record that Ashwani Kumar had filed the writ petition before the Delhi High Court impleading the respondents as opposite parties and the issue before the Delhi High Court was exactly the same as in the present case. The Delhi High Court vide order dated 17.12.2014 allowed the writ petition filed by Ashwani Kumar  and since Ashwani Kumar has already been held to be innocent by the Division Bench of Delhi High Court and the impugned orders issued by the respondents have been quashed, the charges levelled against the petitioner cannot be sustained. Moreover, Ashwani Kumar has already been given an appointment on the basis of selection held in the year 2011, whereas in the subsequent year in 2012 the petitioner has been selected and the impugned order has been passed on the ground of cheating with one Ashwani Kumar. The similar allegation was levelled against Ashwani Kumar and once the Division Bench of Delhi High Court has already set aside the orders, which had been passed against Ashwani Kumar for his termination and for the same recruitment year, he has been given an appointment and he is still working, at this stage, taking a shelter of malpractice/cheating adopted by the petitioner in the examination of 2011 the appointment of the petitioner in the subsequent recruitment year cannot be denied.

14. It has been categorically brought on record that the petitioner has already been selected in the Combined Graduate Level Examination 2012. The result was declared on 8.2.2013 and the authority concerned has already verified the documents and his medical examination has already been taken place. Therefore, at this stage, the claim of the petitioner cannot be denied. 

15. In para-19 of the short counter affidavit, it is stated that the Commission has taken a decision to challenge the judgment of Delhi High Court dated 17.12.2014.  This affidavit was sworn in the month of March, 2015 and considerable time has lapsed in between. The order dated 17.12.2014 was passed by the Delhi High Court before passing of the impugned order dated 13.1.2015. Admittedly, the respondents were in the knowledge of the order passed by the Delhi High Court, which has attained finality. Nothing has been brought on record to indicate that the respondents have  preferred any Special Leave Petition against the judgment of Delhi High Court dated 17.12.2014.

16.  In view of above, the order impugned dated 13.1.2015 is violative of principle of natural justice and is accordingly set aside.

17. The writ petition is allowed. The respondents are directed to issue appointment letter in favour of the petitioner in pursuance of his final selection in Combined Graduate Level Examination-2012 on the post of Tax Assistant in the office of Commissioner of Customs (General), New Custom House, Ballad Estate, Mumbai within a period of four weeks' from the date of production of a certified copy of the order.

(Mahesh Chandra Tripathi,J.)

Order Date :- 17.8.2015

Shailesh/RKP