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2015 DIGILAW 1631 (RAJ)

Union of India v. Manoj Kumar Sharma

2015-09-04

AJIT SINGH, NIRMALJIT KAUR

body2015
JUDGMENT : Hon'ble KAUR, J.— Both the writ petitions are being disposed of by the common order as the impugned order is same. 2. The present writ petition has been filed against the judgment and order dated 16th April, 2013 passed by the Central Administrative Tribunal vide which both the above Original Applications were allowed and the Annexure-A/1 by which the entire process of examination was cancelled stood quashed with a direction to the respondent department to act further upon the selection process. 3. A notification came to be issued for organizing a selection to the post of Junior Engineer-II (Signal) Pay Band of 9300-34800 + 4200 Grade Pay against 20% intermediate apprentice quota. The applications were invited vide notification dated 6th Sept., 2010 from eligible candidates against three available vacancies in the aforesaid quota. Both the respondents namely Manoj Kumar Sharma and Rajendra Kumar Meena submitted their applications to the aforesaid notification. Both of them appeared for the written examination and qualified the same for paper screening for selection to the post of Junior Engineer-II (Signal). A provisional panel of 3 candidates only for the post of Junior Engineer-II (Signal) was declared on 15th April, 2011, wherein the name of Manoj Kumar Sharma appeared at S.No. 1, name of Rajendra Kumar Meena appeared at S.No. 2 and name of one Parmeshwar Kumar appeared at S.No. 3. They were asked to join initial course for promotion to the post of Junior Engineer-II (Signal) from 2nd May, 2011 till 24th June, 2011 and were accordingly sent for line training at Kuchaman City. Thereafter, they were asked to attend initial course for the post of Junior Engineer (Signal), Intermediate, Phase II w.e.f. 11th July, 2011 to 9th Sept. 2011 and were deputed for field training at Makrana Station. 4. Subsequently, on 10th February, 2012, the entire panel which comprised of only 3 candidates was cancelled on account of certain irregularities found in the selection process. Both the respondents filed Original Applications before the Central Administrative Tribunal, Jodhpur. The learned Tribunal allowed the Original Applications vide judgment and order dated 16.4.2013 on the ground that no irregularity was found in the working report of respondents Manoj Kumar Sharma and Rajendra Kumar Meena and nor any irregularity was found in the evaluation of the answer-sheet. Both the respondents filed Original Applications before the Central Administrative Tribunal, Jodhpur. The learned Tribunal allowed the Original Applications vide judgment and order dated 16.4.2013 on the ground that no irregularity was found in the working report of respondents Manoj Kumar Sharma and Rajendra Kumar Meena and nor any irregularity was found in the evaluation of the answer-sheet. The Original Applications were allowed in view of the law laid down in the judgment rendered by the Apex Court in the case of UOI & Ors. vs. Rajesh P.U., Puthuvalnikathu and Anr. reported in 2003(7) SCC 285 . The said order passed by the Central Administrative Tribunal is challenged by the respondent department through the present writ petitions on the ground that the selection was cancelled by the competent authority keeping in view the various irregularities in the entire selection procedure which included- (i) In the notification dated 6.9.2010, condition regarding two papers was not notified but as the time of written examination without pre-intimation examination was conducted in two parts. (ii) Officer who evaluated Answer Sheet made some mistakes during the evaluation which can be seen from copy of Shri Parmesh Kumar. He was given marks 59 in first paper and 61 marks in second paper. After scrutiny of Answer Sheet, it was found that total marks in first paper were 49 and 61 in second paper. Shri Parmesh Kumar was not eligible to be considered for screening because he failed in written examination. (iii) Selection Committee did not follow procedure for selection as per Railway Board's direction. APAR is to be considered for Railway Employee for whom APAR is maintained. (iv) Working report has been prepared for three years by supervisors and officer concerned under whom the employee was working at that point of time, without ensuring that working report should be prepared by supervisor and officer for the period railway employee was working under them. APAR of Shri Rajendra Kumar Meena was available with Lucknow Division and grading of APAR is outstanding for 2008 and Very Good for 2009 whereas working report considered as Very Good for 2008 and outstanding for 2009 and 2010. 5. Secondly, the investigation report was conducted by the Vigilance Inspector Mr. Alok. In pursuance to the said report, an appropriate action was taken against the erring officials. Hence, the selection suffers from various infirmities which resulted the entire selection process being vitiated. 5. Secondly, the investigation report was conducted by the Vigilance Inspector Mr. Alok. In pursuance to the said report, an appropriate action was taken against the erring officials. Hence, the selection suffers from various infirmities which resulted the entire selection process being vitiated. Lastly, the Tribunal had wrongly dismissed the review application without considering all these facts which were brought to the notice of the Tribunal. Reliance was placed on the judgment rendered by the Apex Court in the case of Union of India & Ors. vs. O. Chakradhar, reported in AIR 2002 SC 1119 = RLW 2002(3) SC 364 to contend that cancellation of entire selection was the only way out when there was a widespread and all pervasive irregularity affecting the result of the selection. 6. Reply has been filed by the respondents in support of the judgment dated 16.4.2013 passed by the Central Administrative Tribunal, Jodhpur. 7. Learned counsel for the parties were heard. 8. From the entire facts placed before this Court and after perusing the order of the learned Tribunal as well as after hearing the learned counsel for the parties, the following facts have emerged,- 1. Three candidates were selected for the post of Panel of Junior Engineer-II (Signal) namely Manoj Kumar Sharma, Rajendra Kumar Meena and Parmesh Kumar. 2. The said panel was cancelled on the ground of irregularities found in the selection process. 3. Investigation was conducted by the Vigilance Department but nothing was found against Manoj Kumar Sharma and Rajendra Kumar Meena. However, irregularity was found in the evaluation of answer-sheet of Parmesh Kumar who did not obtain 60% marks in individual paper as per instruction under R.B.E. No. 144/2007. The cancellation of selection of Parmesh Kumar was upheld and accordingly, the order Annexure A/1 qua both the respondents Manoj Kumar Sharma and Rajendra Kumar Meena was quashed. 4. Not a word has been mentioned against Manoj Kumar Sharma and Rajendra Kumar Meena either in the investigation report or in APAR. They were eligible in all respect and they participated in the selection process. They have undergone the requisite training. 5. There is nothing to point out as to how the respondents Manoj Kumar Sharma and Rajendra Kumar Meena benefited in any manner from the alleged irregularities as mentioned. 9. They were eligible in all respect and they participated in the selection process. They have undergone the requisite training. 5. There is nothing to point out as to how the respondents Manoj Kumar Sharma and Rajendra Kumar Meena benefited in any manner from the alleged irregularities as mentioned. 9. The judgment relied on by the learned counsel for the petitioner in the case of O. Chakradhar (supra) does not help the petitioner in the facts of the present case. In the said case, the allegation was that huge amount of money was taken for selecting the candidates. The non-official Chairman of the Board made payment of printing of the examination paper etc. not to any firm but to one person. A large number of applications were missing and postal orders of the missing applications were encashed and misappropriated. On scrutiny of answer sheets of 109 selected candidates, a clear difference of hand writing was noticed in many answer sheets. The answer-sheets were opened and the answers were filled up in the blank space left by the examines even at the time when the answer-sheets were in the custody of the Chairman. The column for interview marks was filled up as per wishes of the Chairman and Member Secretary. In these circumstances, the Apex Court held "As per the report of the CBI whole selection smacks of mala fide and arbitrariness. All norms are said to have been violated with impunity at each stage viz. right from the stage of entertaining applications, with answer-sheets while in the custody of Chairman, in holding typing test, in interview and in the end while preparing final result. In such circumstances it may not be possible to pick out or choose any few persons in respect of whom alone the selection could be cancelled and their services in pursuance thereof could be terminated. The illegality and irregularity are so inter mixed with the whole process of the selection that it becomes impossible to sort out right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon." The Apex Court further went on to hold that in the said facts, it was difficult to separate the cases of some of the candidates from the rest even if there may be some deserving candidates. The result of such a selection cannot be relied or acted upon." The Apex Court further went on to hold that in the said facts, it was difficult to separate the cases of some of the candidates from the rest even if there may be some deserving candidates. Thus, it was in these circumstances that the order of the termination of the services was upheld. In the said case, the mischief played was so widespread and had directly affected the result of the candidates making it difficult to pick out the persons who had unlawfully benefited or wrongfully deprived from selection. 10. However, as mentioned above and from the facts that have emerged before us, no such situation arises in the present case. Hence, the Central Administrative Tribunal rightly allowed the Original Applications while relying on the judgment rendered by the Apex Court in the case of Rajesh P.U. Puthuvalnikathu (supra) wherein in similar set of circumstances, the Court observed- "It appears that the Special Committee has extensively scrutinized and reviewed the situation by re-evaluating the answer-sheets of all the 134 successful as well as the 184 unsuccessful candidates and ultimately found that except 31 candidates found to have been declared successful though they were not really entitled to be so declared successful and selected for appointment there was no infirmity whatsoever in the selection of the other successful candidates than the 31 identified by the Special Committee. In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an all-pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or the other irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or the other reasons. Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go-by to contextual considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation. In short, the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational." 11. In fact, the Apex Court in the case of Joginder Pal and Ors. vs. State of Punjab and Ors. reported in (2014) 6 SCC 644 while considering the question whether the entire selection process stands vitiated on the ground of purported manipulations, forgery and fraud even after segregating the non-tainted candidates from tainted candidates held that endeavour should be made to segregate tainted candidates from those who were without any stigma and had been selected because of their sheer merit and not on account of any illegal consideration. Para 40 of the said judgment is relevant:- "In view of the above, the issue of entire selection process having been vitiated would have arisen only if the findings of the Committee were that it was not possible to distinguish the cases of tainted from the non-tainted ones and there was a possibility that all of them would have got the benefit of wrongdoings of Mr. Sidhu and his accomplices. Fortunately for these appellants, it is not so as they have been found innocent. The appellants get ensconced, earning a safe place, once they are removed from the category of nefarious persons. Though the tainted candidates have rightly received their comeuppance, but the innocent persons cannot be punished with them. Thus, it is difficult to accept the fallible conclusion of the High Court." 12. Coming back to the present case, there is no such allegation of large scale manipulation and nor is there any finding that the case of three candidates cannot be scrutinized individually or that it is not physically feasible to scrutinize case of each candidate. Thus, it is difficult to accept the fallible conclusion of the High Court." 12. Coming back to the present case, there is no such allegation of large scale manipulation and nor is there any finding that the case of three candidates cannot be scrutinized individually or that it is not physically feasible to scrutinize case of each candidate. Infact, the finding is otherwise. There is not a word against the respondents Manoj Kumar Sharma and Rajendra Kumar Meena. Nor, is there any finding as to how the alleged irregularities have resulted in affecting the result or how the respondents have benefited from the same. 13. There is another reason as to why the order of cancelling the entire selection was rightly quashed qua the respondents Manoj Kumar Sharma and Rajendra Kumar Meena. Before cancellation, there should be proper application of mind and reasons should be recorded before passing an order of candidation instead of acting mechanically or impulsively. Whereas, in this case, the report of the Investigating Officer dated 9.3.2012 placed on record as Annex. 13 shows that the selection process was hurriedly cancelled vide order dated 10.2.2012 i.e. almost one month prior to the report of the investigating officer. This fact has also been noticed by the investigating officer himself before concluding the report. In such a situation, the Apex Court came down heavily on the department for having cancelled the process of selection without recording any reasons and without holding any enquiry into the allegations. The said observations were made in the case of East Coast Railway and Another vs. Mahadev Appa Rao and Others reported in (2010) 7SCC 678. Para 28 of the judgment reads thus,- "That is not, however, the position in the instant case. The order of cancellation passed by the competent authority was not preceded even by a prima facie satisfaction about the correctness of the allegations made by the unsuccessful candidates leave alone an inquiry into the same. The minimum that was expected of the authority was a due and proper application of mind to the allegations made before it and formulation and recording of reasons in support of the view that the competent authority was taking." 14. The minimum that was expected of the authority was a due and proper application of mind to the allegations made before it and formulation and recording of reasons in support of the view that the competent authority was taking." 14. In the present case, not only selection process was set aside without awaiting the outcome of the report of the investigating officer but even as per the report itself, nothing has been found against the respondents Manoj Kumar Sharma and Rajendra Kumar Meena. 15. In view of the above discussion, the writ petitions are dismissed being devoid of merit.