Mukesh vs Union Of India And Ors
2014 Latest Caselaw 5448 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) 7552/2014

                                                 Decided on 03.11.2014
IN THE MATTER OF :
MUKESH                                                 ..... Petitioner
                          Through: Mr. U. Srivastava, Advocate

                          versus

UNION OF INDIA AND ORS                         ..... Respondents
                    Through: Mr. Arun Bhardwaj, CGSC

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The present petition has been filed by the petitioner praying

inter alia for quashing and setting aside the show cause notice dated

10.06.2013 and the order dated 27.01.2014 issued by the

respondent No.3/Regional Director (NR) of the Staff Selection

Commission (in short 'SSC'), whereunder he was informed that his

candidature in the Combined Recruitment for Assistant Grade III in

General, Depot, Technical and Accounts Cadre and Hindi Posts (AG-

II) in the Examination, 2012 held for respondent No.4/FCI was

cancelled and he was debarred for a period of three years from the

Commission's examinations.

2. With the consent of the parties, the matter is taken up at the

stage of admission for final disposal.

3. Briefly stated, the facts of the case are that on 29.10.2011, a

Combined Recruitment for Assistant Grade-III in the General Depot,

Technical and Accounts Cadres and Hindi Posts (AG-II) in the

Examination, 2012 to be held for the respondent No.4/FCI, was

notified by the respondents No.1 to 3/SSC in the Employment News.

As per the petitioner, he fulfilled the educational qualifications

stipulated in the advertisement and had submitted an application for

participating in the examination. Though no specific averment has

been made in the writ petition as to the different stages of the

examination, learned counsel for the petitioner informs the Court that

the examination was to be held in three parts, the first stage was of

the written examination, then the candidates were to participate in

the Computer Proficiency Test (CPT) and finally, the shortlisted

candidates were to appear for the personal interview.

4. It is the case of the petitioner that he had qualified in the

written examination and was provisionally called by the respondents

No.1 to 3/SSC to appear in the CPT that was scheduled for

21.06.2012. The petitioner had duly participated in the said test and

was awaiting the results. However, on 10.06.2013, the respondent

No.3 issued a notice to show cause to the petitioner stating inter alia

that experts had been engaged to scrutinize and analyze the

performance of the candidates in the objective type multiple choice

question papers and in the course of the said analysis undertaken in

respect of the written examination papers in Paper-II/Paper III,

incontrovertible and reliable evidence had emerged to the effect that

he had resorted to unfair means by indulging in copying in association

with the other candidates who had sat for the examination. The

petitioner was called upon to reply to the show cause notice within

ten days explaining inter alia as to why his candidature should not be

cancelled and why should he not be debarred for five years from

appearing in the Commission's examinations on account of having

indulged in unfair means in the aforesaid examination.

5. Upon receipt of the aforesaid notice to show cause, the

petitioner had submitted a reply on 19.06.2013, wherein he

submitted amongst others, that in the absence of any documentation

and evidence to substantiate the allegations levelled against him, he

was unable to respond thereto effectively.

6. In the impugned order dated 27.01.2014, the respondents No.1

to 3/SSC took note of the submissions made by the petitioner and

proceeded to cancel his candidature in the said examinations by

observing that there was uncontrovertible and reliable evidence

discovered against him during the post examination scrutiny and

analysis. Further, it was decided to debar the petitioner for a period

of three years from participating in the examinations conducted by

the respondent No.1/Commission.

7. Aggrieved by the aforesaid decision taken by the respondents

No.1-3/SSC, the petitioner had approached the Central

Administrative Tribunal, Principal Bench, New Delhi, by filing OA

No.2226/2014. However, since the respondent No.4/FCI does not fall

in the jurisdiction of the Tribunal, vide order dated 21.07.2014, the

petitioner was permitted to withdraw the aforesaid petition and he

has thereafter filed the present petition on 14.10.2014.

8. The main plank of the arguments advanced by learned counsel

for the petitioner to assail the impugned notice to show cause dated

10.06.2013 and the order dated 27.01.2014 passed by the

respondents No.1 to 3/SSC is that neither the notice to show cause,

nor the impugned order mentions the nature of the evidence

described as "incontrovertible and reliable" that had purportedly

emerged during the scrutiny and analysis of the written examination,

to enable the petitioner to offer a worthwhile explanation or offer a

valid defence. Learned counsel contends that in the absence of any

material particulars supplied to him by the respondents, the

petitioner was not in a position to file a proper reply to the notice to

show cause and though the said fact was duly pointed out by him in

his reply, the same was conveniently ignored by the respondents.

9. Learned counsel for the petitioner informs the court that the

issue raised in the present petition came up for consideration before

the Division Bench in W.P.(C) 7416/2013 entitled SSC and Ors.

vs.Rakesh Kumar Yadav. In the said case, the court had the occasion

to examine two notices to show cause issued by the SSC to the

respondent therein in respect of a Combined Graduate Level (Tier-II)

Examination, 2011. The said notices to show cause had alleged inter

alia that malpractices were indulged in by the candidates including

the respondent therein. The respondent had filed a reply to the two

notices issued by the SSC, wherein he stated that it was not disclosed

as to what was the nature of the unfair means alleged to have been

adopted by him while participating in the said examination without

responding to the objections taken by the respondent. Vide order

dated 19.06.2012, the SSC had proceeded to cancel his candidature

and had debarred him from participating in any examination

conducted by the Commission for a period of four years.

10. Aggrieved by the said decision taken by the SSC, the aforesaid

respondent had approached the Central Administrative Tribunal for

appropriate relief by filing a petition, which was duly allowed. The

petitioner/SSC in the aforecited petition had then filed an appeal

against the decision of the Tribunal that came up before the Division

Bench of this Court and was dismissed vide order dated 26.11.2013,

with an observation that as per the charges leveled against him in the

show cause notice, the alleged unfair means used by the respondent

therein were never revealed to him and in the absence of the said

information, he was not in a position to effectively reply to the notice

to show cause.

11. A copy of the aforesaid order dated 26.11.2013, passed by the

Division Bench in W.P.(C) 7416/2013 is handed over by learned

counsel for the respondent who states that the said order has

attained finality. The facts of the present case are identical to those

decided by the Division Bench in the aforecited case to the extent

that in both the case, the notices to show cause are bereft of any

material particulars as to the nature of unfair means allegedly

adopted by the candidates.

12. A perusal of the impugned notice to show cause dated

10.06.2013 bears out the submission made by learned counsel for

the petitioner that the same does not disclose the manner in which

the petitioner had allegedly resorted to unfair means when sitting in

the subject examination. On account of failure on the part of the

respondents No.1 to 3/SCC to specify the material available with it,

the petitioner would not have been in a position to give a reply in a

proper manner and defend himself effectively. The said fact was also

highlighted by the petitioner in his representation dated 18.06.2013,

submitted in response to the notice to show cause, but the same was

give a go by the respondent No.3, who proceeded to pass the

impugned order dated 27.01.2014, cancelling the petitioner's

candidature in the subject examination, 2012 and debarring him for a

period of three years from participating in the Commission's

examinations.

13. When the petitioner was never confronted with the relevant

material available with the respondents No.1 to 3/SSC to substantiate

its stand that it had "incontrovertible and reliable evidence" against

him in its possession, which it had gathered on the basis of the

analysis and scrutiny of the written examination purportedly

conducted with the help of experts, it is not understood as to how did

the respondents expect the petitioner to have furnished a

satisfactorily reply to the notice to show cause issued by the

Commission. It was incumbent for the respondent No.1/Commission

to have first disclosed the material available with it to substantiate

the charges leveled against the petitioner and only thereafter, could

the petitioner have been in a position to submit a reply to the show

cause notice by taking all the defences that may have been available

to him.

14. A perusal of the impugned notice to show cause reveals that no

mention has been made therein as to the nature and details of the

material that the SSC had come upon for initiating any action against

the petitioner for allegedly resorting to malpractices during the

examination. When the petitioner was not even confronted with the

details of the case made out against him, how could he be expected

to respond effectively? Having failed to furnish the explicit material

in the power and possession of the respondents for arriving at a

conclusion that there was sufficient evidence to indict the petitioner,

it has to be held that the principles of natural justice have been

grossly violated by the respondents and the entire procedure of

affording an adequate opportunity of hearing to him, has been

reduced to a farce.

15. For the aforesaid reasons, this Court is of the opinion that the

impugned notice to show cause dated 10.06.2013 and the order

dated 27.01.2014 passed by the respondent No.1 to 3/SSC are not

sustainable and the same are accordingly quashed and set aside. If

the respondents do have sufficient material available against the

petitioner to establish that he had resorted to unfair means in the

Examination in question, then they shall be at liberty to issue a fresh

notice to him along with all the relevant information available with

them, to substantiate their allegations and the petitioner shall be

entitled to file a reply thereto. The said reply shall be considered and

decided by the respondents in accordance with law under written

intimation to the petitioner.

16. The petition is allowed and disposed of.

                                                     (HIMA KOHLI)
NOVEMBER 3, 2014                                        JUDGE
rkb/sk/mk