Ankit Garg vs Public Servics Commission And ...
2017 Latest Caselaw 244 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 18
 

 
Case :- WRIT - A No. - 1855 of 2017
 

 
Petitioner :- Ankit Garg
 
Respondent :- Public Servics Commission And Anr.
 
Counsel for Petitioner :- Shantanu Khare,Ashok Khare
 
Counsel for Respondent :- M.N. Singh
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

The petitioner has preferred this writ petition for issuance of a writ of certiorari to quash the order dated 13/18.5.2016 issued by the Public Service Commission, U.P., Allahabad cancelling his examination and further debarring him for five years from appearing in any competitive examination held by the U.P. Public Service Commission.

The brief reference to the factual aspects would suffice. The respondent no. 1 issued an advertisement calling applications for various posts under a Combined Lower Subordinate Services Examination, 2013. In pursuance of the said advertisement the petitioner made an application. He appeared in the preliminary written examination and qualified the same. Thereafter, in the written examination he appeared on 21.12.2014 but by an inadvertent mistake after the examination he carried the answer script also along with other papers. When realized this mistake, he immediately rushed to the examination centre to submit his answer script but he was informed that Principal of the Centre has gone to lodge a first information report to the police station. Thereupon, the petitioner rushed to the police station and submitted the answer script.

It is submitted that pursuant to the first information report, an investigation was conducted by the police and it was found that no offence is made out and the police submitted a final report which was accepted by the competent court. A copy of the said order is on the record as annexure-3 to the writ petition.

A short counter affidavit has been filed. The stand taken by the Commission is that in Item No. 10 of the instructions it is provided that "submit the answer-script with the invigilator before leaving the examination hall". It is also mentioned in paragraph-7 of the admit card that "candidate should submit his answer-script with the room-invigilator after completing the question paper". No other submission has been made.

I have heard Sri Siddharth Khare, learned counsel for the petitioner and Sri M.N. Singh, learned counsel for the Commission.

Learned counsel for the petitioner submits that the Commission does not have any power to debar the petitioner for five years which has very serious disproportion. It is submitted that in absence of any such power the order passed by the Commission debarring the petitioner for the next three years is without any jurisdiction, arbitrary and illegal.

He further submits that the instructions, mentioned above, only state that a candidate is obliged to submit his answer-script after the examination. The instructions do not provide that in the event of violation of such provision any penal action will follow hence the said instruction is directory in nature and it does not empower the Commission to impose punishment of debarring a candidate for five years.

Lastly, he urged that the police in its investigation have found that no case is of criminal nature is made out and the Commission itself has not conducted any enquiry against the petitioner.

Learned counsel for the petitioner has placed reliance on the judgments of the Division Bench in the case of Ajit Kumar Singh v. State of U.P. and others, 2013(1) ADJ 344 and Arvind Kumar and another v. State of U.P. and others, 2013 (1) ADJ 697.

I have considered the submissions of learned counsel for the parties and perused the record.

In the case of Ajit Kumar Singh (supra) a candidate appeared in Civil Services Examination, 2009 conducted by the Union Public Service Commission. While scrutinizing his application it was found that the petitioner has suppressed the fact regarding his previous attempts. The petitioner has made eight attempts whereas in the application form he had shown it seventh only. According to the Rules if he had disclosed the correct number of previous attempts, he would not be eligible for appearing in the concerned examination hence it was found that he is not guilty of suppression of fact but tried to take undue benefit by stating incorrect facts.

The Commission after furnishing him opportunity cancelled his candidature for Civil Services Main Examination 2009 and also debarred him from all examinations to be conducted by the Commission for a period of ten years. The Commission sent a copy of the said order to all the State Commissions in the country.

On the basis of the said information, U.P. Public Service Commission also debarred the petitioner from all the examinations from 2010 for a period of ten years and for the said reason his result was withheld. The Division Bench found that the order of punishment was disproportionate. The Court had set aside the order of debarring the petitioner in the said case.

Similarly, in the case of Arvind Kumar (supra) the debarment of a candidate for ten years was found to be disproportionate. The Court had set aside it.

Another Division Bench in the case of Prem Chand Yadav v. Union of India and others, 2012(2) ESC 1021 (All) (DB) considering the same issued held as under:

21. ...the Commission as well as the Tribunal have overlooked a very vital aspect of the matter. They failed to notice that if the petitioner had a fraudulent intention in hiding the number of attempts that he had taken in the Civil Services Examinations, he would not have, in his application form for the Main Examination, submitted that he had taken an attempt in the year 2001, when there was no such attempt, as is the own case of the Commission. This fact clearly discloses that the petitioner was truthful when he stated that due to inadvertence and forgetfulness he made an incorrect statement.

22. The Commission ought to have taken a realistic and a pragmatic view of the matter. These days on account of shortage of employment, and extremely competitive environment a candidate has to undertake sometimes twenty or thirty competitive examinations in a span of five or six years. Sometimes a candidate even half-heartedly appears in an examination on parental pressures. In this kind of a scenario losing count of the number of attempts that a person has taken is very much possible. Further, we would like to note that in the modern days of computerization hiding the number of attempts that a person has undertaken may not be possible, and the candidates are aware of this fact. Therefore it is not likely that they would deliberately suppress the number of attempts that they have taken. Accordingly, we find that the Union Public Service Commission has taken an extremely harsh view on the matter and the punishment is disproportionate to the inadvertent mistake committed by the petitioner.

*** *** ***

25. ...we find that the Union Public Service Commission has inflicted an extremely harsh punishment on the petitioner for an inadvertent mistake on his part in the declaration with respect to the number of attempts he had already taken for the Civil Services Examinations. Since, we have already found that the mistake in declaration was due to inadvertence and not motivated or mischievous, the punishment awarded by the Union Public Service Commission cannot withstand the test of proportionality. Ordinarily, where the punishment is found to be shockingly disproportionate, the matter is remanded back to the authority concerned to pass a fresh order. However, in the instant case, we find that the petitioner is not an employee, but is just a candidate, who is running from pillar to post in search of an employment, therefore, instead of remanding the matter back to the authority concerned, we are of the view that the ends of justice would be served by limiting the punishment to the cancellation of the candidature of the petitioner for the Civil Services (Main) Examination, 2007 only. We, accordingly, find that the punishment of debarring the petitioner from appearing in other examinations is unduly harsh and not justified. The Tribunal erred by not correcting the harsh punishment awarded by the Union Public Service Commission.

As can be seen from the judgment of the Division Bench, the order of the Public Service Commission has been set aside on the ground that its decision debarring the petitioner in the said case was found to be shockingly disproporationate.

The doctrine of proportionality has been elaborately considered by the Supreme Court in a large number of cases. Reference may be made to the judgments of the Supreme Court in the case of Ranjit Thakur v. Union of India, (1987) 4 SCC 611; Tata Cellular v. Union of India, (1994) 6 SCC 651; Union of India v. G. Ganayutham, (1997) 7 SCC 463; B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749; Coimbatore District Central Coop. Bank v. Employees Assn., (2007) 4 SCC 669.

In Halsbury's Laws of England (4th Edn.), Reissue, Vol. 1(1), pp. 144-45, Para 78, it is stated:

"The court will quash exercise of discretionary powers in which there is no reasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to the relevant misconduct. The principle of proportionality is well established in European law, and will be applied by English courts where European law is enforceable in the domestic courts. The principle of proportionality is still at a stage of development in English law; lack of proportionality is not usually treated as a separate ground for review in English law, but is regarded as one indication of manifest unreasonableness."

The Supreme Court in Coimbatore District Central Coop. Bank (supra) has observed that insofar as our legal system is concerned, the doctrine of proporationality is well settled and the Court has held that if punishment imposed is grossly excessive disproporationately high or unduly harsh, it cannot claim immunity from judicial scrutiny and the Court can interfere with such penalty in appropriate case.

The instant case requires to be examined in the light of the aforesaid settled legal proposition. In the present case the candidate has stated that inadvertantly he has taken the answer-script along with other papers. His further conduct inspires the confidence in his statement inasmuch as he himself immediately returned to the examination centre to submit the answer-script and when he was told that the concerned authority has gone to the police station, he also went to the police station to submit the answer-script. His conduct clearly indicates that he had no motive to run away with the answer-script otherwise he would not have gone to the police station.

In view of the above conduct of the petitioner, I find that the decision of the respondent Commission debarring him for five years from appearing in any competitive examination is irrational, grossly excessive and disproporationately high and unduly harsh. The career of a young student shall be ruined in case he is debarred for five years as he would become overaged in five years.

For all the reasons mentioned above, I am of the view that the impugned order is liable to be modified, hence, accordingly the debarrment for five years is set aside and the punishment is limited to cancellation of the candidature of the petitioner for the Combined Lower Subordinate Services Examination of 2013.

The writ petition is, accordingly, allowed. No order as to costs.

Order Date :- 8.5.2017

Digamber