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Rajasthan High Court · body

2019 DIGILAW 1118 (RAJ)

Babu Lal Kumawat v. Union of India

2019-04-12

ALOK SHARMA

body2019
ORDER : Alok Sharma, J. 1. Pursuant to the employment notice no. 1/2011, the petitioner applied for the post of Constable in Railway Protection Force under OBC male category. Having passed the written examination, he was called for PST/PET on 12.6.2014. The petitioner participated in the PST/PET and was called for interview at Railway Protection Force Reserve Line, Loco Colony, Hasanpura, Jaipur and for medical test. Thereafter the respondents declared the final list, wherein the petitioner secured normal 60% and GTO 59.23% and the last candidate in OBC male candidate who was selected secured 45% marks. Subsequently the respondents offered appointments to the selected candidates, but the petitioner despite being highly meritorious was not, for the reason that his Left Thumb Impression (LTI) on the application form did not match with LTI on OMR/Viva Voce sheet. Hence the present writ petition. 2. Counsel for the petitioner submitted that on account of mismatching the LTI of 58 persons, FIR No. 476/2014 was lodged at Police Station, Sadar, Jaipur Metropolitan for the offence under Section 419 IPC, where a notice under Section 41A Cr.P.C. was issued. The petitioner appeared before the police and after investigating the matter, the police submitted the negative final report in the matter observing as under: ^^Jh ckcwyky dqekor iq= Jh ctjax dqekj dqekor jktLFkku vaxqy fpUg laxzgky; t;iqj dh fjiksVZ dk voyksdu fd;k x;k rks ijh{k.k fjiksVZ esa QkeZ ij ck;s gkFk dk vaxqBk fu'kkuh gksuk crk;k x;k gSA bl Ádkj Jh ckcwyky dqekor }kjk dksbZ Ny o Áfr:i.k djuk ugha ik;k x;kA** 3. Counsel for the petitioner submitted that in this view of the matter, no offence under Section 419 IPC being made out against the petitioner, he as a duly selected meritorious candidate was entitled to be given appointment on the post of Constable in Railway Protection Force Pursuant to the employment notice no. 1/2011 as those less meritorious have been already so appointed. 4. Reply to the writ petition has been filed. The factum of the petitioner's merit and his selection has not been denied. Neither it has been denied that the petitioner despite his merit on the final select list was denied appointment on suspicion of fraud for reason of the mismatch of his left thumb impression in the application form on the one hand and OMR sheet/Viva Voce sheet on the other. Neither it has been denied that the petitioner despite his merit on the final select list was denied appointment on suspicion of fraud for reason of the mismatch of his left thumb impression in the application form on the one hand and OMR sheet/Viva Voce sheet on the other. It has also not been denied that following police investigation in the FIR lodged inter-alia against the petitioner for alleged fraud by impersonation the petitioner has been wholly exonerated and no fraud but only carelessness of affixing his right thumb impression not left thumb impression on his application form found. Hence no fraud or misrepresentation is attributable to the petitioner. It has been however submitted that the selection process had already been completed and after rejection of the petitioner's candidature in the year 2014, he has only filed the writ petition in the year 2017. And in this view of the matter, the writ petition be dismissed. 5. Heard. Considered. 6. Admittedly, the report of finger print expert of Railways, on the basis of which the petitioner's selection to the post of Constable rejected was not furnished to the petitioner. Therefore, the petitioner had no opportunity to controvert it. The respondents were expected to confront the petitioner with material relied upon against him. After the report of finger print expert adverse to the petitioner was received neither was he given any notice, nor the content of report disclosed. Instead FIR was lodged against the petitioner. In the FIR lodged by the respondents against the petitioner and others, no offence under Section 419 IPC has been found to be made out and resultantly the police submitted a negative report qua the petitioner in the matter. The nature of expert's report of the Railways otherwise not being conclusive, it could not solely be relied upon to cancel the petitioner's candidature. 7. As a matter of fact, no adverse report was ever received at the time of examination process and it is at a subsequent point of time (i.e. at the time of final selection) that allegation of impersonation was first made. The respondents' action was plainly not in conformity with the principles of natural justice. The allegation of impersonation against the petitioner was founded only on the mismatch of thumb impressions on the application form on the one hand and OMR sheet/Viva Voce sheet on the other. The respondents' action was plainly not in conformity with the principles of natural justice. The allegation of impersonation against the petitioner was founded only on the mismatch of thumb impressions on the application form on the one hand and OMR sheet/Viva Voce sheet on the other. No mismatch of the signatures of the petitioner was in issue. The issue is however so settled in the petitioner's favour with the filing of the negative final report by the police in the FIR alleging impersonation against the petitioner. The petitioner appears to be an innocent victim of his careless mistake of affixing his right thumb impression on the application form instead of the left thumb impression. The issue having now been settled on police investigation to deny the petitioner an appointment despite selection would be harsh. As far as the issue of laches is concerned, I am of the considered view that it cannot entail denial of relief to the petitioner in the facts of the case. Laches is an equitable doctrine not a legal prohibition foreclosing a legal right. It operates largely where third party rights intervene for the lethargy/delays of one denied a right. Nothing on record brought by the respondents suggests that in the event the petitioner were to be now appointed as Constable in terms of his merit at the selection to the post of Constable following the order dated 24.7.2014 it would adversely affect a third party. 8. In such circumstances, I am of the considered view that action of respondents in cancelling petitioner's candidature for being appointed as Constable despite being meritorious and due selection is violative of principles of natural justice and in the facts obtaining wholly unjust. 9. In this view of the matter, impugned order dated 24.7.2014, on the basis of which the petitioner's candidature was not considered for being appointed to the post of Constable due to mismatch of his thumb impressions on the application form on the one hand and on the OMR sheet/Vive Voce Sheet on the other, is quashed and set-aside. The respondents are directed to consider the petitioner's candidature as per his merit in the select list for being appointed on the post of Constable. In the event of, no vacancy of Constable pursuant to the employment notice no. The respondents are directed to consider the petitioner's candidature as per his merit in the select list for being appointed on the post of Constable. In the event of, no vacancy of Constable pursuant to the employment notice no. 1/2011 is now available with the respondents, they are directed in the interest of justice to create a supernumerary post of Constable and appoint the petitioner on the said post as the petitioner from a poor social and economic background has already suffered disproportionately on account of rejection of his candidature due to mismatching of his thumb impression on the application form on the one hand and on the OMR sheet/Vive Voce Sheet on the other. However, the petitioner would be entitled to service benefits from the date he joins duty pursuant to the order of appointment, subject to the requisite training to be undergone by him with the next batch of constables. 10. Writ petitions stands disposed of accordingly.