Delhi High Court
Staff Selection Commission & Anr. vs Sudesh on 19 December, 2014
$~20.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 19.12.2014
% W.P.(C) 9055/2014 and C.M. Nos.20669-670/2014
STAFF SELECTION COMMISSION & ANR. ..... Petitioners
Through: Mr. S.M. Arif, Advocate.
versus
SUDESH ..... Respondent
Through: Ms. Jyoti Singh, Senior Advocate
along with Mr. Sachin Chauhan,
Mr.Sameer Sharma &Mr. Amandeep
Joshi, Advocates.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. The petitioner Staff Selection Commission (SSC) has preferred the
present writ petition under Article 226 of the Constitution of India to assail
the common order dated 30.07.2014 passed by the Central Administrative
Tribunal (CAT/ Tribunal), inter alia, in O.A. No.930/2014 titled "Sudesh
Vs. Staff Selection Commission & Others". By the impugned order, the
Tribunal allowed the aforesaid Original Application preferred by the
applicant Sudesh and quashed the second show-cause notice dated
28.01.2014 issued by the petitioner to the respondent applicant. The
Tribunal directed the petitioner to declare the result of the respondent
applicant and other applicants and to allocate them the service for which
they are found eligible on the basis of pure merit.
2. The brief background facts are that the applicant appeared in the
Combined Graduate Level Examination - 2012 (CGLE-2012) conducted by
the SSC for selection to certain posts. The applicant appeared and qualified
in the Tier-I examination on merits, and thereafter appeared in the Tier-II
examination, in which he qualified. Thereafter, the applicant was subjected
to interview, and finally declared selected. The result of the applicant was,
however, withheld as notified on the website of SSC.
3. A show-cause notice dated 27.05.2013 was issued to the applicant by
the SSC alleging that the applicant had cleared the Tier-II examination by
copying, and hence, his selection deserves cancellation. The applicant
replied to the show-cause notice and denied the allegation of copying, or
cheating in the Tier-II examination. Since the result of the applicant was not
declared, he preferred an Original Application before the Tribunal. The
applicant's Original Application was disposed of along with several others
on 22.11.2013. The operative part of the said order reads as follows:
"24. All these OAs are pertaining to the CGLE-2012. The
respondent-SSC has already conducted the CGLE-2013, and
they may require to initiate process for the CGLE-2014 also in
few months. It is not in any bodys interest to linger the selection
process undecided, for a longer period. In the peculiar
circumstances of the case, and to save valuable time of the
candidates, and in the larger interest, we quash all the
impugned Show Cause Notices issued for cancellation of the
candidature of the applicants for CGLE-2012, and also for
debarment of all Commission's examinations for a period of
five years. However, liberty is granted to the respondents to
issue fresh individual Show Cause Notices by giving full details
of their alleged malpractices/copying and the detailed modus
operandi adopted by the respondents in coming to the said
conclusion and after considering the representations submitted
thereto, and to pass appropriate speaking and reasoned orders
in accordance with law. This exercise shall be completed as
early as possible, but not later than, 60 (sixty) days from the
date of receipt of a certified copy of this order."
4. The applicant was served with another show-cause notice dated
28.01.2014, again alleging that he had resorted to malpractice/ unfair means
in the said Tier-II examination. The applicant was required to explain why
his candidature be not cancelled and he not be debarred from examinations
conducted by the SSC for the next five years. The applicant gave his reply,
denying the charge against him. He also preferred the aforesaid Original
Application. As noticed above, several other candidates, similarly situated,
who were issued simultaneous show-cause notices, also preferred their
respective Original Applications on similar grounds.
5. The case of the applicant was that the second show-cause notice
issued was vague, since it did not specify the specific method, or modus
operandi, allegedly adopted by the applicant to resort to any malpractice, or
copying, or cheating. The SSC had merely claimed that some experts had
reached the conclusion that the applicant and others had resorted to mass
copying/ cheating and adoption of malpractices, without disclosing the basis
on which such a conclusion had been reached. The applicant claimed that
the second show-cause notice did not comply with the order of the Tribunal
dated 22.11.2013, which obliged the SSC to give "full details of their
alleged malpractices/ copying and the detailed modus operandi adopted by
the respondent in coming to the said conclusion ... ... ... ... ...". The
applicant claimed that the second show-cause notice had been issued in
breach of the directions of the Tribunal contained in the order dated
22.11.2013 and the same suffers from the very same shortcomings and
lacunae as the first show-cause notice, which was quashed by the Tribunal in
the first round.
6. From the impugned order, it appears that some of the candidates also
preferred contempt petition on the basis that the Tribunal's directions dated
22.11.2013 had been breached inasmuch, as, the second show-cause notice
did not comply with the aforesaid specific directions. The SSC filed their
reply before the Tribunal, claiming that second show-cause notice had been
issued on the basis of incontrovertible and reliable evidence which emerged
during the post-examination scrutiny and analysis by proven experts in the
area, which was an outside agency. In paragraph 6 of their counter-affidavit,
the SSC stated as follows:
"6. That there is no other proof apart from what has already
been communicated to the applicant on the basis of the Post
Examination Analysis. It is humbly submitted that the applicant
has furnished her reply. However, before any decision is taken
by the Commission on the basis of her reply, she had
approached this Hon'ble Tribunal by filing the present OA,
therefore, it is humbly submitted that the OA is premature and
the same is liable to be rejected on this ground alone."
7. The Tribunal, while allowing the Original Application, took note of
its earlier order dated 22.11.2013 and, in particular, paragraphs 22 to 24
thereof. We have already set out paragraph 24 of the order dated 22.11.2013
hereinabove. Paragraphs 22 and 23 of the said order read as follows:
"22. In the present case, the impugned Show Cause Notices do
not indicate the details of malpractice committed by the
candidate or what was the nature of copying indulged by the
candidate. It is only stated that incontrovertible and reliable
evidence has been emerged during the regular post
examination scrutiny and analysis of performance of the
candidate by the experts, who have proven expertise, that the
candidates have resorted to copying in association with other
candidates who also took the same examination. The
respondents, though taken substantial time for filing counters
but not chosen to file the same finally. Therefore, there is no
occasion to this Tribunal to know what was the method adopted
by the respondent-SSC, to come to the aforesaid conclusion on
the conduct of the candidates. It is also not on record that a
particular candidate committed the alleged malpractice
individually or in association with any other candidate and if
so, who is the said candidate and in what manner both of them
done the mischief. Though the learned counsel for the
respondent, vaguely submitted that the answer books of the
candidates were compared with the answer books of other
candidates by using highly technical and scientific methods and
basing on the proportional similarities in the giving right &
wrong answers and also in not answering certain question at
all, neither he placed the so called specific procedure or
method or modus operandi adopted by the Experts nor stated
the specific malpractice/copying alleged to have committed by
each applicant. In the absence of the same, this Tribunal cannot
express any opinion on the validity or otherwise of the said
modus operandi, said to have been adopted by the respondent-
SSC. For all these reasons, the impugned Show Cause Notices
being violative of principles of natural justice are liable to be
quashed.
23. Equally, this Tribunal cannot express any opinion on the
validity or otherwise of the vague allegations made against the
candidates without giving any details in the impugned Show
Cause Notices, for want of necessary pleadings."
8. The Tribunal held that in the absence of details of the alleged
malpractices committed by the candidates, the mere ipse dixit of the SSC
that there was incontrovertible and reliable evidence which had emerged
upon post-examination scrutiny and analysis by outside experts, was not
sufficient. The Tribunal also proceeded to compare the two show-cause
notices issued to the applicant to highlight that there was no difference when
it came to lack of detail, or specifics. Consequently, the second show-cause
notice was just as vague as the first once. The Tribunal, inter alia, observed
as follows:
"23. It is thus evident from the aforenoted that in the absence
of the details of malpractice alleged by the SSC to have been
committed by the candidate, and having only stated that
incontrovertible and reliable evidence had emerged as per
regular post examination scrutiny and analysis, there was no
occasion for this Tribunal to know as to what was the method
adopted by the respondents-SSC to come to the conclusion
regarding the conduct of the candidates. Moreover, it was not
clear whether the alleged malpractice was committed
individually or in association with any other candidate. The
Tribunal was, therefore, of the view that the show cause notice
was devoid of specific and clear material and evidence
regarding the allegation which could not be upheld.
24. We shall now examine as to whether the impugned
second show cause notice issued to the applicants in the present
OAs provide sufficient material or not, or whether it virtually
provided the same material as in the first show cause notice for
the applicant to put up their defence. This can be seen from the
comparison of the show cause notice. The same is reproduced
below:-
1st Show Cause Notice dated 2nd Show Cause Notice dated
27.05.2013 (A-4) 28.01.2014 (A-1)
1. Whereas Mr./Ms. Sudesh 1. Whereas Mrs. Sudesh w/o
Son/daughter of Shri Rampal, Sh. Parvinder Kumar R/o
residing at the aforesaid H.No.228, Gali No.2,
address, was a candidate of Ambedkar Nagar, Haiderpur,
Combined Graduate Level Delhi
Examination, 2012 notified in was a candidate of Combined
the Employment News dated Graduate Level Examination
24.03.2012 and appeared for 2012 which was notified in the
Tier II of the said examination Employment News dated
on the basis of his/her 20.04.2012 and appeared with
performance in Tier I of the Roll number 2201520498 for
Examination. the said examination.
2. Whereas 2. Whereas Sh.__________
Mr./Ms._________ was provisionally called for
was provisionally called for Data Entry Skill Test (DEST)
interview cum personality of the aforesaid examination
Test/CPT/DEST of the and appeared in the said
aforesaid Examination. DEST on 01.12.2012.
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.
3. Whereas the Commission 3. Whereas the Commission
undertakes regular post- gets regular post-examination
examination scrutiny and scrutiny and analysis of
analysis of performance of the performance of the candidates
candidates in objective type in objective type multiple
multiple choice question choice question papers
papers with the help of conducted with the help of
experts, who have proven experts who have proven
expertise in such scrutiny and expertise in such scrutiny and
analysis and had carried out analysis and had undertaken
such scrutiny and analysis in such scrutiny and analysis in
the case of written the case of written
examination papers of Tier II examination papers of the
of the aforesaid examination. aforesaid examination.
4. Whereas, as informed by 4. Whereas incontrovertible
SSC (Hqrs.), incontrovertible and reliable evidence has
and reliable evidence has emerged during such scrutiny
emerged during such scrutiny and analysis that Sh. Mannu
and analysis that Mr./Ms. Malik had resorted to
Sudesh had resorted to malpractice/unfair means in
copying in the said papers in the said papers in association
association with other with other 25
candidates who also took the candidate/candidates in Paper
same examination. II of Tier II.
5. Hence as directed by SSC 5. Now, therefore, Hon'ble
(Hqrs.) Mr./Mrs. is CAT, New Delhi directed vide
hereby given an opportunity its order dated 22.11.2013 in
to show cause, within 10 days OA No. 2364/2013. Sh.
of issue of this notice, as to Manny Malik son of Sh.
why his/her candidature Bhopal Singh is hereby
should not be cancelled and informed that he had restored
why he/she may not be to malpractice with the
debarred for five years from candidates as per list (sic)
appearing Commissions enclosed.
examinations due to his/her
indulgence in unfair means in
above mentioned examination.
6. In view of the above he is 6. If he/she fails to respond
directed to show cause within within prescribed time limit
10 days of issue of this his/her candidature for above
detailed show cause notice as mentioned examination will
to why his candidature may be cancelled and he/she will
not be cancelled and he may be debarred for five years
(sic) not be debarred from the from appearing commissions
Commissions examination for examinations and thereafter
the next five years. no further correspondence
will strictly be entertained.
(Emphasis provided)
25. First of all, it is noticed from the above that there is
hardly any difference between the contents of the second show
cause notice and the contents of the first show cause notice.
(The underlined portions of the comparative table containing
the text of the 1st and 2nd show cause notice makes it clear that
even the words used in both the show cause notices are
virtually identical). The impugned second show cause notice
fails to provide the applicants any specific information and
evidence as well as the material available with the SSC to come
to the prima facie conclusion that the applicants resorted to
malpractice and unfair means in the examination.
26. Coming back to the order of the Tribunal dated
22.11.2013 we are forced to come to the conclusion that the
second show cause notice suffers from the same deficiency, as
pointed out by the Tribunal in Para-22 of the said judgment. To
that extent we do not find any other basis to conclude
differently and have, therefore, to take a view that the second
show cause notice also does not provide sufficient and
reasonable opportunity to the applicants to state their defence,
which is an inherent requirement of the principle natural
justice.
27. The second aspect, which is noticed is that not only both
the show cause notices issued to the applicants are more or less
identical but also that the show cause notices on record in the
present set of OAs appear to be printed in a standard format,
except the name and detail of the applicant and the candidates
in association with whom the applicant is alleged to have
indulged in malpractice/unfair means. There is no specific
application of mind. The respondents-SSC, therefore, appears
to have proceeded in a mechanical manner."
9. The Tribunal also took note of the judgment of the coordinate bench
of the Tribunal at Allahabad in O.A. No.231/2013 delivered on 06.05.2014,
and that of the Patna Bench of the Tribunal in O.A. No.424/2013 dated
30.05.2014. The Tribunal also rejected the petitioner's submission that
since the second show-cause notice had been issued and replied to by the
candidates, the process should be permitted to be completed and the
Tribunal should not interfere at the show-cause notice stage. While doing
so, the Tribunal relied upon on the decision of the Supreme Court in Ashok
Kumar Sonkar Vs. Union of India & Others, (2007) 4 SCC 54, wherein the
Supreme Court held that a Court of law should not insist on compliance of a
useless formality.
10. The submission of learned counsel for the petitioner is that the second
show-cause notice had been issued in compliance of the Tribunal's earlier
direction contained in its order dated 22.11.2013. Learned counsel submits
that the second show-cause notice could not be described as vague, since the
said show-cause notice had disclosed that the SSC had undertaken scrutiny
and analysis of the written examination papers from which inconvertible and
reliable evidence had emerged with regard to resorting of malpractices and
unfair means by the applicant in solving the question paper in association
with other 46 candidates in Paper-I of Tier-II and 44 other candidates in
Paper-II of Tier-II.
11. Learned counsel further submits that the respondent, who had resorted
to malpractices in the examination could not be allowed to proceed further
and seek employment, since such malpractice/ fraud unravels all.
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.
VIPIN SANGHI, J.
S. RAVINDRA BHAT, J
DECEMBER 19, 2014
B.S. Rohella
