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2018 DIGILAW 1435 (ALL)

SIDDHARTH TIWARI v. UNION OF INDIA

2018-06-20

DEVENDRA KUMAR ARORA, VIRENDRA KUMAR

body2018
JUDGMENT : 1. Petitioner, who is in search of a decent job, has filed the instant writ petition challenging the order dated 10.1.2018 passed by the Public Service Commission, New Delhi rejecting the request of the petitioner to review/recall the order dated 20.6.2017 whereby the petitioner has been debarred for a period of 05 years w.e.f 14.6.2017 from appearing in all the future Examinations/Selections to be conducted by the Commission as he has suppressed the information regarding previous SSB attempt. The present writ petition is filed against the impugned orders dated 10.01.2018, 20.06.2017 and 04.05.2017 passed by the opposite party no. 3 and 4. 2. In order to appreciate the various contentions raised by the petitioner, it is necessary to recite the facts in brief. 3. According to the learned Counsel for the petitioner, Siddharth Tiwari holds a degree in B.Tech in Electrical and Electronics Engineering, who applied pursuant to the advertisement issued by the Union Public Service Commission for appointment as an officer in Combined Defence Services Examination (II). He gave preference as Air Force Academy, Indian Military Academy, Indian Navy Academy and Officers Training Academy. Ultimately, he was declared successful for the Indian Navy Academy and Officers Training Academy and was called for interview by the INA at 33 Service Selection Board, Bhopal. 4. On 04.04.2017 when the petitioner was declared successful in medical test and conference, a question was asked as to whether he is a fresher or repeater and he was asked to put a note in this context. Then the petitioner put a note that he has not appeared in any Navy or Army interview by Union Public Service Commission. After completion of necessary formalities and having been subjected to selection and fitness test, the petitioner was recommended by the Service Selection Board for the Indian Naval Academy. 5. On 26.4.2017, Indian Navy sent an e-mail to the petitioner mentioning therein that information furnished in the declaration at 33 SSB has been found incorrect and as such the petitioner was required to tender comments/explanation failing which his candidature would be cancelled, to which petitioner tendered his reply dated 29.4.2017 indicating therein that due to lack of knowledge he did not mention about appearing in a test conducted by the Indian Air Force at Deharadun as it has no concern with the Union Public Service Commission (Service Selection Board, Bhopal). 6. 6. Not being satisfied by the reply so tendered by the petitioner, on 29.05.2017, a show-cause notice was issued by the Deputy Secretary, Ministry of Defence calling explanation from the petitioner within 15 days, to which the petitioner tendered a reply detailing all the corrects and factual position. Ultimately, On 20.06.2017, an order was passed by the opposite party no. 3 thereby debarring the petitioner for a period of five years w.e.f. 14.06.2017 from appearing in all the future examinations to be conducted by the Union Public Service Commission. 7. Aggrieved by the said order of putting an embargo, the petitioner preferred Writ Petition No. 14731 (SB) of 2017 which was allowed vide judgment and order dated 19.12.2017 and while quashing the aforesaid order, the Division Bench observed as under:- In view of facts stated hereinabove, it appears that after the petitioner had appeared in Combined Defence Services Examination (II), 2016 held on 23.10.2016 he was required to submit Personal Information Questionnaire at the time of interview and as per the case of the respondents, the petitioner has wrongly submitted information in regard to Clause 14 of said Personal Information Questionnaire. So show cause notice has been issued to the petitioner on 29.05.2017 to which the petitioner has submitted reply on 06.06.2017. However, by means of impugned order, reply submitted by the petitioner has not been considered and no reason has been given by the respondent that in what circumstances, he disagrees with the reply submitted by the petitioner in respect to the show cause notice dated 29.05.2017, rather it has been stated that his reply has been considered by the Union Public Service Commission and the same is not satisfactory and in violation of Rule 5(v) of CDS Examination notice No.11/2016. CDS-II, dated 16.07.2016. For the foregoing reasons, the writ petition is allowed. Impugned orders dated 20.06.2017 and 04.05.2017 are set aside and respondent No.3 is directed to pass fresh order after taking into consideration the explanation submitting by the petitioner in response to the show cause notice dated 29.05.2017 with regard to cancellation of petitioner's candidature by detailed and reasoned order, expeditiously, preferably within a period of four weeks from the date of receiving of certified copy of this order." 8. According to the learned Counsel for the petitioner, the respondent in compliance of the aforesaid judgment 10.01.2018, passed the impugned order without dealing with the pleas as raised by the petitioner in his representation/reply and in an arbitrary manner reiterated its earlier stand which is against the letter and spirit of the judgment and order dated 19.12.2017. 9. Inviting our attention toward Clause-14, it has been submitted that as per Clause-14 of the Personal Information Questionnaire, which was to be filled-in by the petitioner at the time of interview, the petitioner has submitted requisite information in regard to previous interviews for selection in Army, Navy and Air Force conducted by the Service Selection Board. As the petitioner has not appeared in any previous examination/interview in respect to selection for the said post, so, he has not given any information in the present case. However, in show cause notice which has been issued to the petitioner it was mentioned that petitioner is repeater and he has appeared in SSB, Bhopal in respect of CDS - II, 2017, but the said information has not been given. 10. It has been vehemently argued that the ground taken in the show-cause notice, as a whole is incorrect as there is no need to give such information in Personal Information Questionnaire, because in the present case, the petitioner appeared in Indian Naval Academy. So, in view of the said fact, the petitioner has given detailed reply in response to show cause notice dated 29.05.2017. However, without considering the same, by way of non-speaking order, the case of the petitioner has been considered and his candidature has been canceled on the ground that there is violation of Rule 5(v) of CDS Examination mentioned in Examination Notification No.11/2016.CDS-II, dated 16.07.2016. In the backdrop of the aforesaid facts, it has been contended that the impugned order passed by the Union Public Service Commission is contrary to law and is liable to be set aside. 11. It has also been argued that the concealment of information by the Petitioner while appearing for SSB test at Bhopal does not materially effect the result as well as candidature and Selection of Petitioner as the same has not been mentioned in the advertisement, information brochure or any other document which leads to selection as well as the guidelines of SSB for Indian Navy. 12. 12. Lastly, it has been contended that the petitioner had no motive to suppress any information, had he declared the same he would have been selected otherwise also and moreover, by suppressing the said information, he had not gain any advantage or mar the right of the any other individual. 13. On behalf of the respondents, it has been submitted that at the time of interview, while filling up the Personal Information Questionnaire, the petitioner had not given correct information and he had not given any information against Clause 14 of Personal Information Questionnaire, whereas, as a matter of record, the petitioner has previously appeared in Air Force Selection Board. In the instant case para 5(v) of the notification dated 16.07.2016 issued by the Union Public Service Commission has rightly been invoked in the instant case because the petitioner has furnished incorrect and false information, which has been apprised to the answering respondents by the latter dated 04.05.2017 written by the respondent no. 4. 14. Elaborating his submission, it has been submitted that the respondent No. 4 vide its letter dated 4.05.2017 recommended that the candidature of petitioner for CDSE (II) 2017 Batch be cancelled. Thereafter, the matter was looked into by the Commission, and a show cause notice was issued on 29.05.2017 giving the petitioner 15 days time to tender reply. In his reply the petitioner stated that he presumed himself to be a "fresher" for Navy due to lack of knowledge. As per letter dated 04.05.2017, all the candidates were told very clearly regarding "Fresher" and "Repeater" status on the very first day of their SSB interview. 15. Having heard learned Counsel for the parties, it would be apt to mention that the petitioner had applied for CDS Examination, which was notified through notification dated 16.7.2016. The relevant part of the para 5 of the notification dated 16/07/2016 under which action has been taken against the petitioner is being reproduced herein below:- "If any of their claims is fraud to be incorrect/false/fabricated, they may render themselves liable to disciplinary action by the Commission in terms of the following provisions: A candidate who is or has been declared by the Commission to be guilty of: (i).... (ii)... (iii)... (iv)... (ii)... (iii)... (iv)... (v) Making statements which are incorrect or false or suppressing material information, or (xiii) Attempting to commit or as the case may be abetting the Commission of all or any of the acts specified in the foregoing clauses, may in addition to rendering himself/herself liable to criminal prosecution be liable: (a) to be disqualified by the Commission from the examination for which he/she is a candidate and/or (b) to be debbared either permanently or for a specified period: (i) by the Commission from any examination or selection held by them; (ii) by the Central Government from any employment under them; and 16. In the impugned order dated 10.1.2018, it is mentioned that the petitioner had enough opportunity to truthfully provide information about previous attempts but he intentionally suppressed the information and gave false information and as such he has been debarred for a period of five year w.e.f. 14.6.2017 from appearing in all the future Examinations/Selection to be conducted by the Commission. 17. The question whether debarring a candidate from appearing in any competitive examination for a period of five years is irrational and disproportionate, has come to scrutiny in various cases. In the case of Prem Chand Yadav Versus State of U.P. and others, (2012) 2 ESC 1021 (All)(DB) the Division Bench was considering the question as to whether a candidate, who does not disclose correctly the number of attempts that he has taken in a competitive examination, in addition to the cancellation of his candidature for the concerned examination, could be debarred for a further period of 10 years from all the examinations to be conducted and selections to be made by the Public Service Commission. The Division Bench after examining the Wednesbury's principle of reasonableness and proportionality observed as under:- "21....the Commission as well as the Tribunal have overlooked a very vital aspect of the matter. They failed to notice that if the petitioner had a fraudulent intention in hiding the number of attempts that he had taken in the Civil Services Examinations, he would not have, in his application form for the Main Examination, submitted that he had taken an attempt in the year 2001, when there was no such attempt, as is the own case of the Commission. This fact clearly discloses that the petitioner was truthful when he stated that due to inadvertence and forgetfulness he made an incorrect statement. 22. This fact clearly discloses that the petitioner was truthful when he stated that due to inadvertence and forgetfulness he made an incorrect statement. 22. The Commission ought to have taken a realistic and a pragmatic view of the matter. These days on account of shortage of employment, and extremely competitive environment a candidate has to undertake sometimes twenty or thirty competitive examinations in a span of five or six years. Sometimes a candidate even half-heartedly appears in an examination on parental pressures. In this kind of a scenario losing count of the number of attempts that a person has taken is very much possible. Further, we would like to note that in the modern days of computerization hiding the number of attempts that a person has undertaken may not be possible, and the candidates are aware of this fact. Therefore it is not likely that they would deliberately suppress the number of attempts that they have taken. Accordingly, we find that the Union Public Service Commission has taken an extremely harsh view on the matter and the punishment is disproportionate to the inadvertent mistake committed by the petitioner. *** *** *** 25....we find that the Union Public Service Commission has inflicted an extremely harsh punishment on the petitioner for an inadvertent mistake on his part in the declaration with respect to the number of attempts he had already taken for the Civil Services Examinations. Since, we have already found that the mistake in declaration was due to inadvertence and not motivated or mischievous, the punishment awarded by the Union Public Service Commission cannot withstand the test of proportionality. Ordinarily, where the punishment is found to be shockingly disproportionate, the matter is remanded back to the authority concerned to pass a fresh order. However, in the instant case, we find that the petitioner is not an employee, but is just a candidate, who is running from pillar to post in search of an employment, therefore, instead of remanding the matter back to the authority concerned, we are of the view that the ends of justice would be served by limiting the punishment to the cancellation of the candidature of the petitioner for the Civil Services (Main) Examination, 2007 only. We, accordingly, find that the punishment of debarring the petitioner from appearing in other examinations is unduly harsh and not justified. We, accordingly, find that the punishment of debarring the petitioner from appearing in other examinations is unduly harsh and not justified. The Tribunal erred by not correcting the harsh punishment awarded by the Union Public Service Commission." 18. In Ajit Kumar Singh Versus State of U.P. and others, (2013) 1 ADJ 344 a candidate appeared in Civil Services Examination, 2009 conducted by the Union Public Service Commission. While scrutinizing his application it was found that the petitioner has suppressed the fact regarding his previous attempts. The petitioner has made eight attempts whereas in the application form he showed only seven attempts. According to the Rules, if he had disclosed the correct number of previous attempts, he would not be eligible for appearing in the concerned examination hence it was found that he is not only guilty of suppression of fact but tried to take undue benefit by stating incorrect facts. The Division Bench after considering various pronouncements on the subject, held that the punishment to the petitioner for disclosing wrong number of attempts is not only debarring him from the Civil Services Main Examinations-2009 but also debarring him for a further period of ten years was definitely disproportionate. 19. In Arvind Kumar and another versus State of U.P. and others, (2013) 1 ADJ 697 the debarment of a candidate for ten years was found to be disproportionate and the Court set-aside the order of debarring the candidate. 20. In the case of Ramesh Choudhary versus Union Public Service Commission (decided on 22.12.2014 by the Delhi High Court), which has been relied upon by the Counsel for the petitioner, the petitioner was an engineering graduate. Sometime in the year 2011, he had applied for the Engineering Services Examination claiming to be a physically challenged (disabled) candidate. 20. In the case of Ramesh Choudhary versus Union Public Service Commission (decided on 22.12.2014 by the Delhi High Court), which has been relied upon by the Counsel for the petitioner, the petitioner was an engineering graduate. Sometime in the year 2011, he had applied for the Engineering Services Examination claiming to be a physically challenged (disabled) candidate. The candidature was canceled since his disability percentage was less than 40%.The Delhi High Court while setting aside the order of the UPSC canceling the petitioner's candidature and debarring him for a period of ten years w.e.f.11.9.2013 observed as under:- "The petitioner, in the opinion of this Court, is correct in his submission that UPSC never visualized candidates claiming the benefit of disabled persons quota under the ACT at the initial threshold; the organisation seems to have become sensitive and woken up to this only recently as is evident from the changed form of Engineering Services Examination, 2014 where the distinction has been made between physically challenged persons entitled to claim reservation as being disabled to the extent of 40% or more, and those who are physically challenged but cannot claim such reservation. Such detailed nuancing was not done earlier and the petitioner cannot be at the receiving end, as did happen unfortunately, in the present case. 21. Thus a perusal of the aforesaid judgment shows that the order of the Public Service Commission has been set aside on the ground that its decision of debarring the petitioner in the said case was found to be shockingly disproportionate. Here, it is relevant to mention that in the case at the hand the definite stand of the petitioner is that the Commission never visualized the fact that petitioner had earlier appeared in an examination conducted by the Air Force known as Air Force Common Admission Test (AFCAT-II)-2016 which was held on 28.8.2016 and it has no concern and relation in any manner with the Combined Defence Services Examination conducted by the Union Public Service Commission. It is relevant to add that Air Force Selection Board (AFSB) and Combined Defence Service Commission are two different bodies having distinctive nomenclatures, different mode of entry and brochure. As a matter of fact these two bodies are different entities having no relation. Further, for determining suppression or false information, attestation/verification form has to be specific not vague or ambiguous. 22. As a matter of fact these two bodies are different entities having no relation. Further, for determining suppression or false information, attestation/verification form has to be specific not vague or ambiguous. 22. Here, it is important to mention that action against the petitioner started on receipt of a complaint received at SSB Bhopal intimating about his previous SSB attempt at Dehradun. The assertion of the petitioner is that the copy of the said complaint was never furnished to the petitioner at any point of time and this allegation has not been denied by the respondents in their Counter Affidavit though there is specific assertion that a complaint was received regarding his previous SSB Attempts at Dehradun. It is settled law that any order which entails civil consequences must be in consonance of the principle of natural justice but in the instant case the complaint which was utilized against the petitioner was never furnished to the petitioner ignoring the fact that a person should be treated fairly in any proceedings which may culminate in punishment being imposed on him. 23. The principle of proportionality has long been a subject matter of judicial pronouncements by the Apex Court as well as the High Courts. After examining the decisions of the Apex Court rendered in the cases of Union of India v. G. Ganayutham, (1997) 7 SCC 463 ; Ranjit Thakur v. Union of India, (1987) 4 SCC 611 ; B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 ; Indian Oil Corpn. Ltd. v. Ashok Kumar Arora, (1997) 3 SCC 72 ; Coimbatore District Central Coop. Bank v. Employees Assn., (2007) 4 SCC 669 , the Apex Court in the case of Chairman-Cum-Managing Director, Coal India Limited and another v. Mukul Kumar Choudhuri and others, (2009) 15 SCC 620 , observed as follows:- "19. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. 20. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. 20. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment." 24. Applying the principle of proportionality, as noticed by us herein above, we find that the Union Public Service Commission has inflicted an extremely harsh punishment on the petitioner for an inadvertent mistake on his part in the declaration with respect to the number of attempts he had already taken for the examination in question and erred in not considering the explanation submitted by the petitioner in its correct perspective that the petitioner had earlier appeared in an examination conducted by the Air Force known as Air Force Common Admission Test (AFCAT-II)-2016 held on 28.8.2016, has no concern and relation in any manner with the Combined Defence Services Examination conducted by the Union Public Service Commission. Moreover, the entire selection procedure for fresher and repeater is same. 25. One thing more which needs mention is that by the order dated 20.6.2017, which was impugned in earlier writ petition, the Commission had debarred the petitioner for a period of 05 years w.e.f. 14.6.2017 from appearing in all the future examinations/selections to be conducted by the Commission but the order is silent about canceling his candidature in respect of Combined Defence Services Examination (II)-2016 but in effect it has also canceled the candidature of the petitioner in addition to putting embargo of five years. Therefore, limiting the punishment to the cancellation of the candidature of the petitioner for the 2016 Examination and a year thereafter would secure the ends of justice. 26. Since, we have already found that the mistake in declaration was due to inadvertence and not motivated or mischievous, the punishment awarded by the Union Public Service Commission cannot withstand the test of proportionality. We, accordingly, find that the punishment of debarring the petitioner from appearing in other examinations for a period of five years is unduly harsh and not justified. We, accordingly, find that the punishment of debarring the petitioner from appearing in other examinations for a period of five years is unduly harsh and not justified. It may be added that the petitioner has already suffered a lot as the two years have already passed from the last examination held in the year 2016.Before parting, we would like to mention that in the instant writ petition, the petitioner has also sought for quashing the order dated 20.6.2017 contained in Annexure-2 to the writ petition. There is no need of quashing the said order, as it has already been quashed by this Court vide its judgment and order dated 19.12.2017 in Writ Petition No. 14731 of 2017. However, the request of the petitioner to permit him to report at the Indian Naval Academy is refused. 27. In view of the aforesaid discussion, the writ petition is allowed in part and the impugned order dated 10.1.2018 contained in Anenxure-1 to the writ petition is hereby quashed and a writ of mandamus is issued to the respondents to allow the petitioner to appear in all the forthcoming examination/selections to be conducted by the Union Public Service Commission. 28. Parties to bear their own costs.