Deepak Kumar Gulia vs Staff Selection Commission

S.N. Terdal, J

We have heard Mr.Surender Singh Hooda, counsel for applicant and Mr. Gyanendra Singh, counsel for respondents, perused the pleadings and all the documents produced by both the parties. 2. In this OA, the applicant has prayed for the following reliefs:

"a) Set aside/quash the Show Cause Notice as being illegal and violative of the fundamental rights of the applicant.

b) Direct the respondents to appoint the applicant to the post of Upper Division Clerk with all consequential benefits.

c ) Any other direction or relief this Hon'ble Tribunal deems fit in the interest of justice."

The relevant facts of the case are that vide advertisement dated 24.03.2012, the Staff Selection Commission called for applications for Combined Graduate Level Examination (hereinafter CGLE-2012). The applicant appeared in Tier-1 examination and Tier-II examination and was successfully in interview also. On 27.05.2013 having come to the conclusion on the basis of enquiry held. With the help of experts who had proven expertise in scrutiny and analysis of the objective type multiple choice questions in such examinations on their scrutiny and analsized found incontrovertible and reliable evidence with respect to the applicant to come to the conclusion that he had resorted to copying, a Show Cause Notice (SCN) was issued to him seeking his reply for having resorted to unfair methods and cheating in the examination. The applicant was given 10 days time to show cause. On 13.07.2013, the applicant submitted his reply showing cause. This application has been filed on 15.02.2018 challenging the said SCN and not appointing the applicant in the said recruitment process.

The counsel for the respondents vehemently contended that this petition is barred by time and it is hit by delay and laches. In support of his contention, the counsel for respondents have referred to the law laid down by the Hon'ble Supreme Court and various High Courts in the following cases:

(1) State of Haryana & Ors. Vs. Miss Ajay Walia ( JT 1997 (6) SC 592).

(2) D.C.S.Negi Vs. UOI (SLP (C ) CC No.3709/2011

(3) Hon'ble High Court Punjab & Haryana at Chandigarh(CWP No. 18360/2016 titled Surjit Singh Vs. UOI & Ors.)

(4) Hon'ble High Court Punjab & Haryana at Chandigarh (CWP No. 16921/2016 titled Narindra Kumar Vs. UOI & Ors.)

(5) Hon'ble High Court Punjab & Haryana at Chandigarh(CWP No. 21993/2015 titled Narendra Kumar & Ors. Vs. UOI & Ors. and CWP No.1436/2016 titled Sanjeev Kumar Vs. UOI & Ors)

(6) Hon'ble High Court Punjab & Haryana at Chandigarh (CWP No. 12032/2016 titled Raman Ahlawat Vs. UOI & Ors.)

(7) Hon'ble High Court Punjab & Haryana at Chandigarh (CWP No. 29707/2017 titled Lakhbir Singh Vs. UOI & Ors.)

(8) Hon'ble High Court Punjab & Haryana at Chandigarh (CWP No. 20437/2016 (O&M) titled Manoj Kumar Vs. UOI & Ors.)

(9) Hon'ble High Court Punjab & Haryana at Chandigarh (CWP No. 1540/2018 titled Rakesh Mann & Ors. Vs. UOI & Ors.)

(10) Hon'ble High Court Punjab & Haryana at Chandigarh (LPA No.321/2018 in CWP No. 1540/2018 titled Rakesh Mann & Ors Vs. UOI & Ors.)

(11) Hon'ble High Court of Delhi WP (C) No.3410/2017 titled Pradeep Kumar Vs. UOI & Ors.)

The counsel for the applicant vehemently submitted that similarly placed applicants had filed several OAs. In those OAs bearing no. 930/2014 and others (Sudesh Vs. SSC through the Chairman and Ors) vide order dated 30.07.2014 this Tribunal set aside the similar SCNs giving relief to the applicants in those cases. The Writ Petition bearing No. 20669-670 (SSC and Anr. Vs. Sudesh) filed by the respondents against the order of the Tribunal dated 30.07.2014, the Hon'ble High Court dismissed the Writ Petition vide order dated 19.12.2014 and the Civil Appeal filed by the respondents before the Hon'ble Supreme Court bearing no. 2839/2017 was dismissed vide order dated 19.07.2017. After the judgment of the Supreme Court, the applicant has filed this OA. On the basis of the above said case of Sudesh (supra), the counsel for the applicant submitted that the judgment in Sudesh case (supra) is judgment in rem and as he was waiting for the judgment of the Hon'ble Supreme Court and after the judgment of the Supreme Court dated 19.07.2017 he has approached the Tribunal, as such he has approached the Tribunal within time. In support of his contention, the counsel for the applicant relied upon the following judgments of Hon'ble Supreme Court in the following cases:

(1) State of Uttar Pradesh and Others Vs. Arvind Kumar Srivastava and others (2015)1 SCC 347)

(2) State of Karnataka and Others Vs. C. Lalitha (2006) 2 SLR 599)

(3) Inder Pal Yadav & Others Vs. Union of India and Others ( 1985)2 SCC 648).

But, however, from the perusal of the orders of this Tribunal and the Hon'ble High Court it is crystal clear that the order passed by this Tribunal dated 30.07.2014 is not a judgment in rem nor the Hon'ble High Court made the judgment in rem. The relief given by the Tribunal as well as the Hon'ble High Court were confined to the applicants involved in the said cases. The relevant portion of the order of the Tribunal is extracted below:-

"48. .....respondents are directed to declare the result of all applicants in these OAs.......respondents shall take action fully in consonance with the rules and instructions governing the subject while declaring the result and for allocating the service for which the applicants are found successful on the basis of merit. The afore-noted action shall be completed within a period of three months from the date of receipt of a copy of this order."

As such the law laid down by the Hon'ble Supreme Court in the case of Arvind Kumar Srivastava (supra) at para 22.2 and 22.3 is squarely applicable to the facts of this case. Para 22.2 and 22.3 of the judgment are extracted below:

"22.2. However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

22.3. However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."

In view of the facts of this case and in view of the law laid down by the Hon'ble Supreme Court extracted above, we are of the opinion that applicant is a fence-sitters and approached the Tribunal only after delay of more than 4-5 years, hence he is not entitled to any relief particularly in view of the fact that the entire selection process was over long ago.

Accordingly, OA is dismissed. No order as to costs.