Full Judgment
CWP No.4225 of 2013 and other connected cases -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:
30. 09.2013 1. CWP No.4225 of 2013 Lokesh Kumar …Petitioner Versus Staff Selection Commission and others …Respondents 2. CWP No.7670 of 2013 Ravinder Dahiya …Petitioner Versus Staff Selection Commission and others …Respondents 3. CWP No.7526 of 2013 Sukhbir …Petitioner Versus Staff Selection Commission and others …Respondents CORAM: HON'BLE MR. JUSTICE SURYA KANT HON’BLE MR. JUSTICE SURINDER GUPTA Present: - Mr. Sourabh Goel, Advocate for the petitioner(s). Mr. RS Khosla, Assistant Solicitor General with Mr. B.S. Kanwar, Advocate (in CWP No.7526 & 7670 of 2013) for respondent Nos. 1 to 3. Mr. Sanjay Joshi, Advocate (CWP No.4225 of 2013) for respondent No.1 to 3. 1 To be referred to the Reporters or not?. 2 Whether the Judgment should be reported in the Digest?. SURINDER GUPTA, J This order shall dispose of a bunch of above captioned Atul Kumar Tripathi 2013.10.05 15:32 I attest to the accuracy and integrity of this document Chandigarh CWP No.4225 of 2013 and other connected cases -2- three petitions, directed against a common order dated 14.02.2013 (Annexure P-19) passed by the Central Administrative Tribunal, Chandigarh Bench (for short 'the Tribunal'). However, for convenience, the facts are being taken from CWP No.4225 of 2013.
2. In response to advertisement dated 19.03.2011 (Annexure P-1), issued by respondent No.2, the petitioner(s) applied for Common Graduate Level Examination, 2011. The examination was conducted on 19.06.2011 and 26.06.2011. After qualifying the Tier-I Examination, the petitioner(s) appeared in Tier-II examination conducted on 03.04.2011 and cleared the same. The petitioner(s) had secured 411 marks in Tier-I and Tier- II examination and the cut-off for the general category was 354.75 as displayed on the website of the Staff Selection Commission (for short 'the Commission'). He appeared for the interview on 05.11.2011. On 03.03.2012, he received an order passed by respondent No.3, whereby the candidature of the petitioner(s) had been cancelled and he was debarred from appearing in any examination to be conducted by respondent No.2 for a period of five years. The petitioner(s) filed O.A. No.62/HR/2012, which was allowed vide order dated 28.05.2012 with the direction to the competent authority as follows:
“2. In the light thereof, we would allow the O.A. and quash the impugned order. If the competent authority is still inclined to proceed against the applicant herein, it may act in the matter but it will be incumbent upon it to observe the Atul Kumar Tripathi 2013.10.05 15:32 I attest to the accuracy and integrity of this document Chandigarh CWP No.4225 of 2013 and other connected cases -3- principle of natural justice by affording an opportunity of a hearing to the applicant. The competent authority shall have a fortnights time (form the date a copy of this order is presented in its office) to take a conscious decision about whether to proceed afresh against the applicant. In case a decision is taken to proceed against the applicant, the competent authority shall have another fortnights time to conclude the proceedings. Needless to state, the applicant shall, in latter eventuality, fully cooperate in conclusion of the exercise. If another advertisement notice comes to be issued in the meantime, the applicant shall be allowed to appear at the examination provisionally.”. 3. In pursuance of the above, show cause notice dated 07.06.2012 (Annexure P-10) was served upon the petitioner(s), which he replied. However, no material or details on the basis of which, the allegations were levelled against the petitioner(s), was supplied and the petitioner(s) challenged the show cause notice by filing O.A. No.732-HR of 2012. During the pendency of the said O.A., the respondents passed the order dated 07.08.2012, cancelling the candidature of the petitioner(s) and debarring him from appearing in any examination to be conducted by the Commission for a period of five years. The Tribunal decided the aforesaid O.A. vide order dated 17.10.2012, wherein it observed as follows:
“15. In view of the conceded position that Atul Kumar Tripathi 2013.10.05 15:32 I attest to the accuracy and integrity of this document Chandigarh CWP No.4225 of 2013 and other connected cases -4- the incriminating material never came to be put to the applicant herein, we do not propose opening the sealed cover for perusal.
16. In the light of aforementioned discussion, we would allow the O.A. and quash the impugned orders, Annexure A-8 and A-10. In the peculiar facts of this case, we would once again grant an opportunity to the competent authority to proceed afresh in the matter. However, we would pointedly make it clear that the liberty aforementioned, could be meaningfully utilized only if the competent authority is in a position to confront the applicant with the factual premise of the finding recorded by the committee of experts for holding that the applicant had indulged in malpractice. It would be incumbent upon the competent authority to act faster in the matter and conclude the relevant exercise within a period of one month from the date of receipt of copy of this order.”. 4. The writ petition filed by the respondents against order dated 17.10.2012, bearing CWP No.24380 of 2012 was dismissed in limine by this Court vide order dated 10.12.2012 (Annexure P-17). The respondents did not comply with order dated 17.10.2012 and the petitioner(s) filed another O.A. No.1418-HR-2012. The said O.A. was dismissed by the Tribunal vide order dated 14.02.2013 with the observations that: Atul Kumar Tripathi 2013.10.05 15:32 I attest to the accuracy and integrity of this document Chandigarh CWP No.4225 of 2013 and other connected cases -5-
“13. The above sequence of events, clearly indicates that the action of the respondents in cancelling the candidature of the applicant was held to be in violation of principles of natural justice. It is not that this Court had commented upon the material which had been taken into account against the applicant for concluding that the applicant indulged himself in the malpractice. Therefore, it cannot be held that in earlier round of litigation this Court had opined on the merit of the case. Therefore, we are of the considered view that the prayer made in the O.A. cannot be accepted. Accordingly, the O.A. is dismissed at this stage. The remedy lies elsewhere for redressal of the grievances of the applicant if the respondents did not proceed in the matter as per the earlier order dated 17.10.2012 granted by this Tribunal in O.A. No.845-HR-2012.”. 5. The aggrieved petitioner(s) now impugns the above mentioned order of the Tribunal.
6. We have heard learned counsel for the parties. It has been vehemently argued on behalf of petitioner(s) that the respondents are not complying with the directions of the Tribunal given in O.A. No.732-HR-2012 vide order dated 17.10.2012. The result of the petitioner(s) has not been declared and the only prayer made by the petitioner(s) was to declare their result and to consider their case for appointment as per merit in Common Atul Kumar Tripathi 2013.10.05 15:32 I attest to the accuracy and integrity of this document Chandigarh CWP No.4225 of 2013 and other connected cases -6- Graduate Level Examination-2012. Admittedly, the order of the Tribunal dated 17.10.2012 has been upheld by a Division Bench of this Court in CWP No.24380 of 2012 vide judgment dated 10.12.2012 (P-17). It was specifically observed in the order that the relevant material which became foundation of the decision of the Commission while cancelling the candidature of the petitioner (s) and debarring them from appearing in the examination to be conducted by the Commission for five years, has not been disclosed to the petitioner(s).
7. Now the question, which confront us is, whether the relief as sought by the petitioners could be allowed by the Tribunal?. In this regard, we find no legal or factual infirmity in the impugned order of the Tribunal dated 14.02.2013. The Tribunal has rightly pointed out that the remedy for the petitioner(s) 'lies elsewhere'. There is no dispute regarding the proposition of law that the respondents were expected to comply with the order dated 17.10.2012 passed by the Tribunal. In the event of failure of respondents to comply with the order dated 17.10.2012, the petitioner(s) can avail the remedy as available to them under law.
8. That apart, the respondent-Commission has now placed on record self-speaking order dated 15.07.2013 passed against each petitioner, the relevant part whereof reads as follows: “Whereas a show cause notice was served upon Shri Lokesh Kumar on 07.06.2012. After taking into consideration the written explanation submitted by the petitioner, a speaking order was issued on 07.08.2012 cancelling his candidature Atul Kumar Tripathi 2013.10.05 15:32 I attest to the accuracy and integrity of this document Chandigarh CWP No.4225 of 2013 and other connected cases -7- and debarring him for Five years from examinations conducted by Staff Selection Commission. The petitioner challenged the speaking order in the Central Administrative Tribunal, who vide order dated 17.10.2012 granted liberty to respondents to proceed afresh in the matter. Thereafter the petitioner approached the Hon'ble Punjab & Haryana High Court. The Staff Selection Commission had referred the matter to CBI. On submission of their status report, the Hon'ble High Court on 2.7.2013 directed the Staff Selection Commission to take final decision in the matter and apprise the Court on 16.7.2013. The Staff Selection Commission has carefully considered the CBI status report. That the CBI has not registered a regular criminal case does not in any way nullify the scientific post examination analysis, which has conclusively proved, as already stated that Shri Lokesh Kumar, has indulged in unfair practice. Taking into account all facts and circumstances of the case, the Commission has, after careful consideration, decided to cancel the candidature of Shri Lokesh Kumar, and to debar him for a period of three years from the Commission's examinations. Now, therefore, Shri Lokesh Kumar son of Shri Atul Kumar Tripathi 2013.10.05 15:32 I attest to the accuracy and integrity of this document Chandigarh CWP No.4225 of 2013 and other connected cases -8- Chanderhas, is hereby informed that his candidature in the Combined Graduate Level Examination 2011 is cancelled and he is debarred for a period of Three years from the Commission's examinations, without prejudice to the rights of the Commission to initiate/ seek criminal proceedings against you.”. 9. Similar speaking orders have been passed in CWP Nos. 7670 and 7526 of 2013.
10. The directions earlier issued by the Tribunal, thus, have been substantially complied with leaving no other option with the petitioner(s) but to challenge the latest speaking order before an appropriate forum.
11. With liberty to the extent given above, we find no merits in these petitions and the same are dismissed.
12. A photocopy of this order be placed on the files of connected cases. (SURYA KANT) (SURINDER GUPTA) JUDGE JUDGE3009.2013 Atul Atul Kumar Tripathi 2013.10.05 15:32 I attest to the accuracy and integrity of this document Chandigarh