Krishna Murari vs.union of India & Ors - Court Judgment

$~1,2,3,4 & 5 * + IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 5607/2015 SANDEEP KUMAR UNION OF INDIA & ORS Through: Ms. Garima Sachdeva, Advocate. ........ Petitioner

versus ........ RESPONDENTS

Through: Mr. Rajesh Kumar Gogna, CGSC with Ms. Liu Gangamei, Mr. Akhilesh Kumar and Mr. Perala Upendra for Sai, Respondent No.1. Advocate + With W.P.(C) 5679/2015 AJEET SINGH UNION OF INDIA & ORS. Through: Ms. Garima Sachdeva, Advocate. ........ Petitioner

versus ........ RESPONDENTS

Through: Mrs. Bharathi Raju, CGSC for Respondent Nos. 1 to 3. + With W.P.(C) 5695/2015 KRISHNA MURARI ........ Petitioner

Through: Ms. Garima Sachdeva, Advocate. versus W.P.(C) 5607/2015 & Connected matters Page 1 of 10 UNION OF INDIA & ORS ........ RESPONDENTS

Through: Ms. Archana Gaur, Advocate for + UOI. With W.P.(C) 5699/2015 Through: Ms. Garima Sachdeva, Advocate. ........ Petitioner

versus ........ RESPONDENTS

Through: Mr. Rakesh Kumar, CGSC. GOPAL LAL JAT UNION OF INDIA & ORS. + HET RAM UNION OF INDIA AND ANR CORAM: JUSTICE S. MURALIDHAR JUSTICE SANJEEV NARULA And versus W.P.(C) 2065/2017 Through: Mr. M.K. Bhardwaj, Advocate. ........ Petitioner

........ RESPONDENTS

Through: Mr. K.K. Jha, Senior Panel Counsel. % ORDER

1812.2018 Dr. S. Muralidhar, J.:

1. The common issue in all these petitions concerns the cancellation of the W.P.(C) 5607/2015 & Connected matters Page 2 of 10 candidature of the... Petitioner

s who sat for the Sub-Inspector (Executive) [„SI (E)‟]. selection in the CISF conducted by the... RESPONDENTS

pursuant to an advertisement issued in 2011. After declaring the... Petitioner

s provisionally qualified, each of them received a letter calling them for interviews. Their names appeared in the merit list that was subsequently declared. While other selected candidates joined the training, the... Petitioner

s were not issued call letters. When they made queries, they received a reply that the cases were pending before the Staff Selection Commission („SSC‟) for “post- examination analysis”.

2. Thereafter, on 6th May 2013, identically worded show cause notices („SCNs‟) were issued to each of the... Petitioner

s asking them to submit their explanations as to why they should not be debarred from all examinations/ recruitment conducted by the SSC for a period of 5 years.

3. It was stated in the SCN that each of the... Petitioner

s was found to have resorted to „malpractices in paper I and paper II‟. In other words, there was nothing else stated except that it was prima facie found that the... Petitioner

s had resorted to malpractices.

4. This was followed by another SCN (which in the case of Sandeep Kumar in W.P.(C) 5607/2015 was dated 31st May 2013) where, in the operative part, it was stated as under: “Whereas as informed by SSC (HQrs) incontrovertible and reliable evidence has emerged during such scrutiny and analysis that Mr/Ms. Sandeep Kumar had resorted to copying in the said papers in association with other candidates who also took the same examination.” W.P.(C) 5607/2015 & Connected matters Page 3 of 10 5. In other words, all that was said was that the... Petitioner

had “resorted to copying” in Papers I and II, in association with other candidates who also took the same exam. However, no explanation was made as to who the other candidates were, where they took the exam, and in what manner the... Petitioner

s had indulged in copying.

6. In response to these SCNs, the... Petitioner

s pointed out that the grounds for seeking to debar them were vague and were not capable of being replied to. When there was no response further from the... RESPONDENTS

, the... Petitioner

s approached this Court with the present petition.

7. The facts in these connected writ petitions are more or less similar and therefore, are not being dealt with individually.

8. The... Petitioner

s, in all, place reliance on earlier orders of the Division Benches („DBs‟) of this Court in similar matters.

9. There is an order dated 17th December 2014, in W.P.(C) 7484/2013 (Ashwani Kumar v. Union of India) where, in similar circumstances, a DB of this Court quashed the show cause notices. Then, in an order dated 19th December 2014 in W.P.(C) 9055/2014 (Staff Selection Commission v. Sudesh) passed by this Court considering the challenge by the SSC to a decision dated 30th July 2014 of the Central Administrative Tribunal („CAT‟) in OA No.930/2014. The CAT had allowed the application of Sudesh, quashed the SCN dated 28th January 2014 issued to him alleging malpractices, and directed the SSC to declare his result and those of others W.P.(C) 5607/2015 & Connected matters Page 4 of 10 similarly placed. The DB of this Court found that no particulars had been set out in the SCNs that would enable the candidates to file a written reply.

10. It is mentioned that the decision in Sudesh (supra) was challenged by the SSC in Civil Appeal Nos.2836-38/2017 which was dismissed by the Supreme Court on 19th July 2017. A review filed against the said order was also dismissed by the Supreme Court on 31st October 2017.

11. In fact, the present batch of writ petitions was kept adjourned by the Court while awaiting the decision of the Supreme Court in the review petition in the case of Sudesh (supra).

12. However, today learned counsel for the... RESPONDENTS

placed reliance on an order dated 5th May 2017 passed by the Supreme Court in Civil Appeal No.6424/2017 (Union of India v. Ashwani Kumar) whereby the Supreme Court set aside the decision of this Court dated 17th December 2014. The said decision reads as under: “Leave granted. We have heard the learned Additional Solicitor General appearing for the appellants and the learned counsel appearing for the respondents. We have gone through the impugned Judgment passed by the High Court. Learned Additional Solicitor General has drawn our attention to Page No.19 - Para No.4 of the additional documents, which reads as follows:-

"“NOW THEREFORE, in the light of above developments and W.P.(C) 5607/2015 & Connected matters Page 5 of 10 order dated 1-2-2013 of S.S.C. and the fact that your candidature for the post of A.S.I/Exe. has been cancelled by S.S.C. which was the basis for the issue of offer of appointment to you by C.I.S.F., you are hereby directed to show cause as to why your services shall not be terminated on cancellation of your candidature for the above post by the S.S.C.” In view of the above, we find that the order passed by the High Court is not correct as on 9th October, 2013, reason was given for termination of service on cancellation of candidature for the above post by the S.S.C. to the respondents. The High Court did not appreciate the facts of the matter in question and has erred in setting aside/quashing the show cause notices issued to the respondents by the appellants. Thus, the order of the High Court is not sustainable in the eyes of law and deserves to be set aside. Accordingly, we set aside the impugned order of the High Court. As prayed by the learned counsel appearing for the respondents, eight weeks' time is granted to the respondents to file reply to the show cause notice. We make it clear that status-quo with regard to service of the respondents - herein shall be maintained till the matter is decided by the authorities.” 13. Learned counsel for the Respondent additionally refers to a decision in the Nidhi Kaim v. State of Madhya Pradesh AIR2016SC2865to urge that the scope of interference by the Court in this matter is limited.

14. Learned counsel for the... Petitioner

s have pointed out that, in many similar cases, this Court has consistently set aside similarly worded SCNs and issued mandamus to the... RESPONDENTS

to declare the results of the W.P.(C) 5607/2015 & Connected matters Page 6 of 10... Petitioner

s and offer them appointment letters, if found qualified. One such order is dated 31st October 2014 in W.P.(C) 5060/2013 (Sunil Singh Dev v. Union of India) which has been accepted and implemented by the... RESPONDENTS

by an order dated 5th December 2018, a copy of which has been placed before the Court. Another instance is a decision dated 15th November 2017 of this Court in W.P.(C) 8896/2015 (Krishan Gurjar v. Union of India) where again, in similar circumstances, this Court set aside the SCNs. Then we have the decision of this bench dated 30th October 2018 in W.P.(C) 7150/2017 (Ajit Singh v. Union of India) where again, following the decisions in Sudesh (supra) and Krishan Gujar (supra), this Court quashed the SCNs and directed that the... Petitioner

s should be appointed to the post of SI in CISF with continuity of service.

15. It is useful to extract from the last-mentioned decision of this Court in Ajit Singh v. Union of India (supra) the relevant portions which discuss the earlier decision in Krishan Gurjar (supra) as under: “15. Another similar challenge by candidates who were issued near identical SCNs was considered by this Court in its decision dated 15th November 2017 in W.P.(C) 8896/2015 (Krishan Gurjar v. Union Of India). That case pertained to the candidature of the petitioner therein for appointment to the post of SI/GD through the COP‟s examination, i.e. the very same examination for which the present two... Petitioner

s appeared. Mr. Krishan Gurjar had been issued first an SCN which alleged that he had resorted to malpractice and another SCN wherein it was alleged that he had committed such malpractice with another candidate, one Manish Kumar Verma. There again, just as in the present cases, the SCN set out, in a tabular form, the „Total Matches‟, the „Right Right Matches‟, the „Blank Blank Matches‟, and the „Wrong Wrong Matches‟. Interestingly, in the said case, the SSC even went to the extent of alleging that W.P.(C) 5607/2015 & Connected matters Page 7 of 10 “both the candidates were sitting in the same venue, same room, one after the other” whereas in the present cases there was no such allegation.

16. In Krishan Gurjar (supra), this Court found that the SCNs were bereft of any material/evidence which could throw light on the malpractices supposedly pursued by the petitioner therein. It was observed that “without such disclosure, the petitioner was in the dark about the allegations to be met by him. The serious allegations of malpractice had cost him the appointment as a SI/GD in the BSF. It appears that the issuance of show cause notices were mere formality to show compliance of principles of natural justice. It is also a settled law that principles of natural justice does not only warrant issuance of show cause notice and eliciting a reply but includes giving such material to the noticee, which has been found against him to ensure he considers the said material and gives his reply”.

17. The decision of this Court in Krishan Gurjar (supra) also referred to the earlier decision in Sudesh (supra) and noted that it had been affirmed by the Supreme Court. The Division Bench held the SCNs to be in violation of the principles of natural justice and set them aside. It was ultimately directed that Krishan Gurjar “shall be appointed to the post of SI/GD as per the CPOs Examinations, 2011 in BSF with continuity of service, including notional pay fixation. He shall not be entitled to any monetary benefits”.

18. The Court is informed at the bar by learned counsel for the... Petitioner

, without being controverted by learned counsel for the... RESPONDENTS

, that the aforementioned decision dated 15th November 2017 in Krishan Gurjar (supra) has not only been accepted by Respondent No.4 but has also been acted upon with Mr. Krishan Gurjar having been appointed around two weeks ago pursuant to the contempt petition filed by him.” 16. Although the decision of the Supreme Court in Ashwani Kumar (supra) was dated 5th May 2017, the attention of this Court was not drawn to it when W.P.(C) 5607/2015 & Connected matters Page 8 of 10 it decided Krishan Gurjar (supra) or Ajit Singh (supra). The aforementioned decisions of the Supreme Court in Sudesh (supra) and Krishan Gurjar (supra) cannot be overlooked, particularly since the facts in the latter make it clear that even where in the SCN the... RESPONDENTS

were able to set out in tabular form the „Total Matches‟, the „Right Right Matches‟, the „Blank Blank Matches‟, and the „Wrong Wrong Matches‟ and went to the extent of alleging in the SCN that both the candidates were sitting the same venue, same room, one after the other, this Court still considered the SCN to be vague and incapable of reply and that view was affirmed by the Supreme Court.

17. The Court therefore finds that even after the decision in Ashwani Kumar (supra) was set aside by the Supreme Court, thereafter, consistent orders have been passed by the Supreme Court affirming the decision of this Court in setting aside SCNs in the similar circumstances.

18. It may also be noted that in Ashwani Kumar (supra), the Supreme Court, while restoring the SCNs, made it clear that status quo should be maintained “till the matter is decided by the authorities”. The Court is not informed as to what happened thereafter in Ashwani Kumar (supra). At the same time, the Court also cannot be oblivious to the fact that the... RESPONDENTS

have themselves implemented the decisions of this Court, particularly the decision in Krishan Gurjar (supra) and in Sunil Singh Dev (supra). Clearly the... RESPONDENTS

cannot pick and choose which judgments they will implement and which they will not. They have to be consistent in their approach in that regard. It cannot be that similarly placed persons who W.P.(C) 5607/2015 & Connected matters Page 9 of 10 have had success before the Courts are faced with a situation where some orders of the Courts are implemented and others are not.

19. The relevant portions of the SCNs in the present case have been set out hereinbefore. They are vague and incapable of being answered as they do not set out, with any degree of specificity, the precise allegations against each of the... Petitioner

s. Particularly, even when the SCNs allege malpractices, it is essential to set out the exact nature of such malpractice, the persons in association with whom such malpractice was committed, as well as the time, date, and place of commission of such malpractice. Importantly, such allegations must be capable of being established.

20. For the aforementioned reasons, the Court finds that the SCNs in the present case do not pass muster when tested on the mantle of reasonableness within the scope of Article 14 of the Constitution of India. The SCNs are accordingly quashed. The writ of mandamus is issued to the... RESPONDENTS

to issue appointment letters to the... Petitioner

s if otherwise found qualified in accordance with law. If the... Petitioner

s are appointed pursuant to the orders issued, their notional seniority shall be correspondingly fixed. The requisite orders be issued within a period of eight weeks from today. S. MURALIDHAR, J.

SANJEEV NARULA, J.

DECEMBER18 2018 ss W.P.(C) 5607/2015 & Connected matters Page 10 of 10