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2019 DIGILAW 353 (JHR)

Raj Aryan v. Union Public Service Commissioner

2019-02-04

SUJIT NARAYAN PRASAD

body2019
ORDER : 1. The writ petition is under Article 226 of the Constitution of India whereby and whereunder the order dated 09.11.2018 issued by under Secretary, Union Public Service Commissioner whereby and whereunder the petitioner has been debarred from appearing in all future examinations/selections to be held by the commission with immediate effect. 2. It has been contended by the learned counsel for the petitioner by referring to the show cause dated 19th September, 2018 that the allegation as has been levelled upon the petitioner that he being a member of the WhatsApp group named “Berojgartollofficia11118”, was found to be active in cheating so as to gain undue advantage in the examination. 3. It has further been noticed that being a member of the said WhatsApp group, the petitioner has failed to report before hand about leaking of the question and getting the answer from outside, therefore, a serious misconduct has been committed being an examinee, in view thereof, he was asked to explain as to why he be not debarred permanently from all future examinations/selections of the commission. 4. The case of the petitioner is that merely because he was a member to the said WhatsApp group, cannot be construed to be an allegation and so far as the allegation regarding not reporting before hand, the same was not possible for the petitioner because he was sitting in an examination centre at Kolkata while one Saurav Anand, who was a candidate appeared in a centre at Patna, was found to have committed the said misconduct, therefore, there is no occasion to apprise to the authority before hand and further he cannot be expected to know about the intention of a member of the WhatsApp group regarding his intention to commit the aforesaid misconduct. 5. 5. It is the case of the petitioner that in terms of the aforesaid show cause notice, proper reply has been sent through mail dated 23.09.2018 wherein it has been stated that nothing has been found in possession of the petitioner in the examination hall, he has thoroughly been checked up at the entry point on the date of examination, thereafter, he has been allowed to enter into the examination hall but the said show cause reply having been sent through mail has not been taken into consideration rather it has been stipulated in the impugned order that in spite of the time granted for filing reply to show cause, the same has not been filed, therefore, the order of punishment has been passed debarring him permanently from appearing in all future examinations/selection, therefore, before inflicting the harsh punishment, the case of the petitioner had not been considered by the authority even though the reply was on the mail of the Union Public Service Commission. 6. Mr. Faiz Ur Rahman, learned counsel for the Union Public Service Commission has sought for three weeks time to seek instructions and file counter affidavit. 7. As prayed for, list this case on 26.02.2019. 8. Learned counsel for the petitioner has insisted upon this Court for passing an interim order of stay of the letter dated 09.11.2018 (Annexure6). Ad-interim Relief:- 9. Mr. Sachin Kumar, learned counsel for the petitioner has pressed the interim relief by staying the operation of the order dated 09.11.2018 since the petitioner intends to participate in the examination of the National Defence Academy/Naval Academy Examination (II). Last date of submission of application form is 04.02.2019 and due to the order impugned, he is not in a position to fill up the application form. 10. Last date of submission of application form is 04.02.2019 and due to the order impugned, he is not in a position to fill up the application form. 10. Having heard learned counsel for the petitioner and taking into consideration stay of the operation of the letter dated 09.11.2018 cannot be passed for the reason that the main relief sought for in the writ petition is for quashing of the order dated 09.11.2018 and it is settled position of law that the main relief cannot be granted by way of an ad-interim order otherwise, it will amount to allowing the whole writ petition but as has been informed by the learned counsel for the petitioner that today i.e. 04.02.2019 is the last date for submission of the application form, if that be so, if the petitioner will not be protected, he will have to loose one year for scrutinizing his candidature for the admission in the National Defence Academy/Naval Academy Examinations (II) which cannot be compensated in terms of money and therefore, it would be just proper and appropriate to direct the Union Public Service Commission to accept the application form of the petitioner, if made within due date which shall be subject to the outcome of the writ petition. 11. Learned counsel for the petitioner undertakes to communicate this order to the competent authority of the Commission. 12. Let a copy of this order be handed over to the Mr. Faiz Ur Rahman. Ordered accordingly.