| SooperKanoon Citation | sooperkanoon.com/688010 |
| Subject | Service |
| Court | Delhi High Court |
| Decided On | Apr-28-2000 |
| Case Number | CW No. 5318/99 & CM. 9766/99 |
| Judge | Manmohan Sarin, J. |
| Reported in | 86(2000)DLT344 |
| Acts | Constitution of India - Articles 226 and 227 |
| Appellant | Subhra Ranjan Mishra |
| Respondent | The Chairman, U.P.S.C. and Another |
| Appellant Advocate | Mr. J.R. Das and; Mr. K.N. Tripathi, Advs |
| Respondent Advocate | Mr. R.V. Sinha, Adv. |
Manmohan Sarin, J.
1. The petitioner seeks quashing of the order dated 19.3.1998, passed by the U.P.S.C. debarring the petitioner from all examinations/selections for a period of 10 years w.e.f. 5.3.1998 and cancelling his candidature for the Civil Services (Main Examinations) 1997. The petitioner was found adopting unfair means in as much as one of the answers to question 3(b) in the petitioner's answer book tallied verbatim with the incriminating material recovered from the petitioner. He found to be in possession of study material and notes while answering the question paper in contravention of Instruction No.4(d). The petitioner in the writ petition had prayed in the alternative for reduction of the punishment imposed to a maximum period of debar of 2 years.
2. Notice to show cause was issued on 2.9.1999. Pleadings have since been completed. The petitioner also moved CM No.2296/2000 praying for being permitted to take the forthcoming Civil Services Examination in June, 2000. At the request of the parties the writ, petition itself has been taken up for consideration.
3. Rule.
The facts giving rise to the present case may be noted.
(i) The petitioner claims brilliant academic credentials, having passed C.B.S.E. examination with 83% in aggregate and securing 94% marks in 10+2 with 6th rank in the merit list. He is an economics Honours graduate with 60% marks from university of Delhi. The petitioner thereafter completed his M.B.A. from Indian Institute of Management, Calcutta in 1994.
(ii) Petitioner had earlier appeared in the Central Services Civil Examination in the year 1994 and 1996. On both the occasions, he cleared the preliminaries but could not pass the main examinations. The present Civil Service (Main Examination) was the petitioner's third attempt.
(iii) The petitioner's case is that on the morning of 26.11.1997, he appeared for Management-I paper. The Management-II paper was in the afternoon. The examination Centre was at Cuttack and while returning to the Centre from Bhubaneswar, he got caught in a traffic jam, thereby getting delayed for the examination scheduled at 2.00 p.m.. The petitioner states that he was extremely tense and could hardly manage to reach by 2.10 p.m., the outer limit for being permitted to enter the Examination Hall. In this utter confusion, he inadvertently carried into the Examination Hall, the study material that was clipped to the Writing Board and which he had been using for the last minute revisions. The petitioner submits that it was in these circumstances, that he was found in possession of the incriminating study material, which was noticed by the invigilator and taken away by him. Petitioner states that he was oblivious of this material and was totally engrossed in writing answer to the question paper. After about an hour and quarter, the invigilator noticed that some study material lying below the admission ticket, was still with the petitioner, which was also removed. A show cause notice had been issued to the petitioner, which was duly replied.
(iv) The petitioner also claimed that he was extremely well prepared for these examinations and there was no occasion for him to resort to cheating. The petitioner with a view to demonstrate his state of preparation sent along with the reply to the show cause, answer sheets written by him from his memory, which could be compared with the answer sheet of the examination. This the petitioner did to dispel inference sought to be drawn by the respondents of the petitioner having adopted unfair means by virtue of the answer to Question 3(b) being found to be verbatim with the study material recovered from the petitioner.
(v) The respondent UPSC considered the entire matter and debarred the petitioner from taking Civil Services (Main Examinations) and other UPSC examinations for a period of 10 years. Appeal to the Chairman was also rejected.
4. Learned counsel for the appellant has urged before me that the petitioner has had a brilliant academic carrier, which should not be jeopardised by the one time mistake committed of carrying the study material along with him in the Examination Hall. Mr. Das urges that it was in the extenuating circumstances as set out in the petition, namely petitioner having become extremely tense and nervous, after being held up in the traffic jam and seeing the prospect of not being permitted to take the examination, which made him forget to leave the study material outside the Examination Hall. Second point urged by Mr. Das is that there was no evidence of the petitioner using unfair means. It was not the case of the respondents that he had been caught in the act of cheating or copying. Accordingly the inference of adoption of unfair means, sought to be adopted on account of answer to one of the questions 3(b) being found to be verbatim with the study material was misplaced. The answer sheets sent by the petitioner with reply to the show cause notice would establish and demonstrate that even at that belated stage, the petitioner was capable of recapitulating the answers that he had written. The same on being compared with the answer sheet utilized while taking the examination would vindicate petitioner's position.
5. Learned counsel also submitted that the Supervisor of the Centre to whom all the circumstances had been explained, had recommended the petitioner's case for sympathetic consideration, but to no avail.
6. Lastly, learned counsel laid great emphasis on the punishment meeted out being wholly disproportionate to the act complained of. He placed reliance on S.K. girl Vs . Home Secretary, Ministry of Home Affairs and others : (1996)ILLJ814SC and Ram Avtar Singh Vs . State Public Service Tribunal and others : (1999)ILLJ1312SC .
7. In the light of the foregoing, the counsel submitted that this court in exercise of jurisdiction under Article 226 of the Constitution of India, had the power to do complete justice between the parties and for that purpose to mould the relief. Learned counsel also submitted that the petitioner had already suffered for two years and a lenient view ought to be taken in the matter in view of the extenuating circumstances. Moreover there was only a violation of the instructions 4(d) and petitioner was not caught or found to be using unfair means.
8. Learned counsel for the respondents on the other hand sought to fully justify the action of the respondent/UPSC. Learned counsel for the respondents submitted that from the events that had occurred, the version of the petitioner was neither credible nor plausible. The invigilator, who was on duty reported that at about 2.15 p.m., he had found that the petitioner had kept a small piece of hand-written paper near the question paper and he took the same from him. The petitioner at that point of time surrendered a bunch of papers, including his photograph kept inside a pencil box. The invigilator thereafter reported that again at 3.15 p.m. he found that the petitioner kept another bunch of notes/papers below his answer book. He again took the same from the petitioner. The petitioner on the second occasion also surrendered bunch of zerox paper also. The invigilator also reported that he had asked the petitioner to put his signatures on the incriminating material, which the petitioner refused to do so.
9. Learned counsel argued that the manner of the seizure of the incriminating material and the material itself belied the petitioner's claim that they were taken to the Examination Hall by inadvertence or in innocence. Besides, the answer to question 3(b) being verbatim reproduction of the seized material, clearly establishes adoption of unfair means. Counsel further argued that the petitioner was fully conversant with the procedure of Civil Services Examination, having appeared twice earlier and in 8 papers for present examinations. Counsel also sought to justify the imposition of a bar of 10 years, which was a consistent practice of the UPSC for over 20 years. Stringent and deterrent punishment was required to maintain the purity of the examination system and integrity of the services. The punishment imposed was fully justified and did not violate the Rule of proportionality.
10. The cases cited by the petitioner are clearly distinguishable and do not advance his case. In S.K. Giri's (Supra) case, a Head Constable of the Industrial Security Force, who had 12 long years of service remained absent for about 25 minutes on one day from the place of duty, when there was a theft. The court found the punishment of removal from service as severe and disproportionate to the charge against him set aside the same. In Ram Avtar Singh's case, the Police Constable went on hunger strike for one day to protest against his transfer. The Apex Court directed his reinstatement with 50% back wages. The Constable was also required to file a written apology and he undertook to be transferred to any other place, where the authorities may do so.
11. The record of the case had been called for and has also been examined. Let us first consider the petitioner's version regarding his being in a tense mental state and in utter confusion, in which he inadvertently carried the incriminating study material with him clipped to his Writing Board. Assuming the above version to be correct, there was no plausible Explanationn as to why when the invigilator found him with a small note next to the answer sheet and he surrendered a bunch of study material, he did not remember that there was other material also lying with him. Especially when even the pencil box was also opened as per the invigilator to take out his photograph. The petitioner rather claimed that it was the invigilator's folly in not taking the other material. As per the invigilator's report, the second bunch of material was under the answer sheet and was found by him after one hour and 15 minutes.
12. The material recovered has also been seen by the court. The study material by the petitioner is in small slips of 2' to 4' x 1/2' 2' x 3' inches notes, and 6 slips of 2' x 4' inches with varying shapes and 10 short notes/papers, some of which have printed material. The significant factor is that each of the slips which were hand-written, were in microscopic fine writing, which would require considerable effort for anyone other than the author to read. There were also about 10-15 zerox pages of hand-written notes and a number of zerox hand-written sheets on both sides of the dimension of 8' x 4' and an envelop which had the notes again written in very fine microscopic writing. The manner in which these slips were generated with microscopic writing and the varying sizes and shapes of the same and the manner of preparation indicate that these were so designed, as to enable the petitioner to carry them with him without detection into the Examination Hall. In any case, the same belies the petitioner's version of the same being study material for revision. The nature of the study material, the manner of writing of the slips and notes as discussed above, the factum of recovery of the same in two stages from the petitioner and the non-surrender or disclosure by the petitioner of his own coupled with an answer to a question being found to be verbatim with the seized material show that the inferences drawn and conclusions reached by the respondent of the petitioner having adopted unfair means and contravened instruction 4(d) cannot be faulted with.
13. The next question which requires consideration is the petitioner's case that he has already suffered enough and the debarment for 10 years was extremely harsh and would mar and spoil the career of the petitioner. It would leave him a frustrated and dejected person for rest of his life. At the first flush, the argument appears is be appealing. However, we cannot lose sight of the fact that the petitioner is a mature man of over 21 years of age, who was appearing in the Central Services Examination for the premier service of the country for the third time. The need for maintaining purity and probity in civil service cannot be under scored by any means. The successful candidates are to run the administration of the country in responsible positions. The petitioner as noted earlier, was not a novice. He is a person who is graduate in Economics with a post graduate decree in management. He had appeared twice in the Examination and was familiar with the rules and this was his third attempt. The respondents have explained that they have consistently followed a practice of imposing the standard penalty of debarring the candidate found being using unfair means for a period of 10 years. The petitioner in my view, in these circumstances, does not deserve any leniency or departure from the consistent practice followed by UPSC.
14. As regards the legal position, the Apex Court in Union of India & Another Vs . G. Ganayutham (Dead) through Lrs. - : (2000)IILLJ648SC reviewed the legal position with regard to the rule of proportionality in administrative law in England and India and summarised the same as under:-
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bonafide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test.
(2) The Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU principles.
(3)(a) As per Buddaycay, Brind and Smith, as long as the Convention is not incorporated into English Law, the English Courts merely exercise a secondary judgment to find out if the decision maker could have, on the material before him, arrived at the primary judgment in the manner he has done.
(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the Courts/Tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the Court is to be asked on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the Courts in our country will apply the principle of 'proportionality' and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decided whether the Courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14.
Regarding interference by the High Court, reference may usefully be made to Union of India and another v. B.C. Chaturvedi (1995) 6 SCC 750, where the Apex Court held as under:
'A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.'
In my view, applying the principles as outlined in Union of India and another v. G. Ganayutham (Supra) and Union of India and another v. B.C. Chaturvedi (Supra), it cannot be said that the decision is irrational or so outrageous in its defiance of logic or of accepted moral standards that no sensible person, who had applied his mind to the question to be decided could have arrived at. The UPSC has followed a consistent policy of imposing a 10 years bar in cases of adoption of unfair means. The decision taken in my view does not call for any interference in judicial review of the administration action under Articles 226 and 227 of the Constitution of India.
The writ petition is dismissed.