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2013 DIGILAW 806 (ALL)

Naresh Kumar, Constable Pac v. State of U. P. and Others

2013-03-13

KRISHNA MURARI

body2013
Krishna Murari, J.;— Heard Sri Vijay Gautam, learned counsel for the petitioner and learned Standing Counsel for the State respondents. By means of this petition filed under Article 226 of the Constitution of India, petitioner who is working as a constable in PAC has challenged the order dated 24.8.2012 passed by the respondent no. 3 cancelling his candidature in the Departmental/Ranker Promotion Examination. Facts are that petitioner is working as constable in PAC, Uttar Pradesh. In pursuance of an advertisement issued by the department for filling up posts of Sub Inspector, petitioner was also an applicant and appeared in the written examination held on 13.3.2011 and was allotted roll no. 26032012. Petitioner claims that he qualified the written examination as well as physical test and his name finds place in the list of the successful candidate published on the website and accordingly he was sent for training in Police Training College, Unnao on 21.8.2012. However, just after fifteen days of training, he received an order dated 24.8.2012 cancelling his candidature in the said examination on the allegation that he has mentioned his name in 'Part-B' of the OMR sheet which was in violation of Clause-15 of the instruction. It is contended by learned counsel for petitioner that on the instruction of the Invigilator of the examination hall, petitioner had written his name on 'Part-B' of the OMR sheet and thus he cannot be penalised for the same. It has also been contended that various other candidates appearing along with him in the examination hall had also mentioned their name on the OMR sheet but their candidature has not been cancelled and thus the petitioner has been discriminated. It is further submitted that the impugned order cancelling his candidature has been passed after he was selected and sent for training without any notice or opportunity and thus is violative of principle of nature justice. In reply, learned Standing Counsel has tried to justify the impugned order. I have considered the argument advanced by learned counsel for the parties and perused the record. Copy of the 'Important Instructions' accompanying the OMR sheet has been produced by the learned Standing Counsel. Instruction no. In reply, learned Standing Counsel has tried to justify the impugned order. I have considered the argument advanced by learned counsel for the parties and perused the record. Copy of the 'Important Instructions' accompanying the OMR sheet has been produced by the learned Standing Counsel. Instruction no. 15 clearly provides that the candidates shall not mention their names at any other place except the space provided for the purpose nor make any mark of identification at any place on the OMR sheet and in case of breach the candidature was liable to be cancelled. Petitioner does not dispute that he mentioned his name on 'Part-B' of OMR sheet though the instructions clearly prohibited the same. The argument of the learned counsel for the petitioner that he mentioned his name on 'Part-B' of the OMR sheet on the instruction of the Invigilator of the examination hall, based on the facts asserted in paragraph 27 of the writ petition, are not worthy of any credence. The instructions were provided along with OMR sheet in the examination hall with a clear directive that before marking answer on the OMR sheet the instructions may be carefully read and strictly followed. The instructions clearly prohibits the candidates from mentioning their names at any other place, except the space provided for the purpose or put any mark of identification at any place on the OMR sheet. There is hardly any reason or occasion to believe the assertion that the Invigilator in the examination hall would direct the petitioner or any other candidate to mention his name on 'Part-B' of the OMR sheet. The allegation that many other candidates did the same thing but no action has been taken against them also stands belied from the instructions of the learned Standing Counsel which clearly state that after scrutiny of the OMR sheet, the candidatures of all such candidates who mentioned their names at any place other than the one earmarked for the purpose have been cancelled. Thus the petitioner cannot claim that he has been discriminated in any manner. The next submission of the learned counsel for the petitioner that the order cancelling the candidature of the petitioner has been passed without any notice or opportunity is violative of principle of nature justice, is, in the facts and circumstances of the case, also devoid of merits. Thus the petitioner cannot claim that he has been discriminated in any manner. The next submission of the learned counsel for the petitioner that the order cancelling the candidature of the petitioner has been passed without any notice or opportunity is violative of principle of nature justice, is, in the facts and circumstances of the case, also devoid of merits. Petitioner does not deny the fact that he mentioned his name in 'Part-B' of the OMR sheet, which was prohibited under the instructions. Mere allegation that the order has been passed without any notice or opportunity in itself may not be sufficient to violate the principle of natural justice unless prejudice caused because of want of notice is demonstrated. Petitioner has failed to point out prejudice caused to him. There is not even a suggestion of defence which would have been taken by him in reply had a notice been issued to him. Mere fact that the order has been passed without any notice or opportunity in itself in the facts and circumstances will not be sufficient to constitute violation of principle of nature justice. Unless it is demonstrated that there was some reasonable defence available in reply to the allegation, on which the order is based, which prima-facie required an inquiry then and then only and principle of natural justice can be said to be violated. The view taken by me finds support from the decision of the Hon'ble Apex Court in the case of S.L. Kapoor v. Jagmohan & others, (1980) 4 SCC 379 wherein carving out an exception to the general principle that breach of principle of natural justice was itself a prejudice held that if upon admitted or undisputable facts only one conclusion was possible then in such a case the principle of breach of natural justice was in itself a prejudice would not apply. The Hon'ble Apex Court further observed that in the facts and circumstances, if no other conclusion was possible on admitted or undisputable facts it is not necessary to quash the order passed in violation of principle of natural justice. In paragraph 17 it has been held as under : "17. Linked with this question is the question whether the failure to observe natural justice does at all matter if the observance of natural justice would have made no difference, the admitted or indisputable facts speaking for themselves. In paragraph 17 it has been held as under : "17. Linked with this question is the question whether the failure to observe natural justice does at all matter if the observance of natural justice would have made no difference, the admitted or indisputable facts speaking for themselves. Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it approves the non-observance of natural justice but because courts do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however, slightly, and penalties are discretionary." Again in the case of Aligarh Muslim University & others v. Mansoor Ali Khan, 2001(19) FLR 28, it has been held that where no prejudice caused by violation of principle of natural justice is demonstrated interference under Article 226 is not warranted. The view taken in the case of Aligarh Muslim University (Supra) was reaffirmed in the case of Haryana Financial Corporation v. Kailash Chandra Ahuja, reported in (2008) 9 SCC 31 . After analyzing various pronouncements of the Hon'ble Apex Court on the issue, it was observed in para 36 as under : "36. The recent trend, however, is of "prejudice". Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant." The law being settled on the issue, mere allegation by the petitioner that impugned order has been passed without any notice or opportunity in the absence of any allegation to demonstrate the prejudice caused by non-issuance of notice or opportunity, the order cannot be held to be violative of principle of natural of justice. Prohibition to mention the name or put any mark of identification at any other place other than the place earmarked is not without any purpose. The obvious purpose is not to let the examiner know the identity of the examinee in order to avoid the allegation of favoritism or any manipulation in the examination. Concealment of the identity of the examinee is very essential to maintain the sanctity and purity of the examination. The obvious purpose is not to let the examiner know the identity of the examinee in order to avoid the allegation of favoritism or any manipulation in the examination. Concealment of the identity of the examinee is very essential to maintain the sanctity and purity of the examination. The breach of the conditions not to put any mark of identification at any place except for one earmarked is not a trivial mistake to be ignored. If the examinees are allowed to put their names or put any mark of identification for the purpose to identify the examinees by the persons generally involved in the examination would result into serious breach of sanctity and purity of the examination. Cancellation of candidature for breach of such condition by the examinee also cannot be said to be too harsh or unreasonable warranting any interference by this Court. For the aforesaid facts and reasons, writ petition filed by the petitioner is devoid of any merits and accordingly stands dismissed. _____________