Nem Kumar vs Union Of India, Through The General Manager, North Central Railway, Subedarganj, District-Allahabad & Ors.

Mohan Pyare, Member-(A)

Heard Shri Anil Kumar Singh, learned counsel for the applicant and Shri Vimal Kumar Rai, learned counsel for the respondents.

By way of this original application the applicant has sought the following reliefs:-

“(i) Issue a writ in the nature of certiorari quashing the impugned order dated 18.07.2018 passed by the respondent no.2.

(ii) Issue a suitable order, writ or direction in the nature of mandamus, directing the respondents to appoint the applicant on the group ‘D’ post forthwith.

(iii) Issue any other and further writ, order of directions; which this Court may deem fit and proper in the facts and circumstances of the case.

(iv) Award the cost of the O.A. to the applicant.”

The brief facts of the case are that the applicant has applied for the post against the Advertisement No.1/2012 by Railway Recruitment Cell, North Central Railway Allahabad for filling up of about 1950 Group ‘D’ posts. The applicant appeared in the written test, passed the same and was called for physical examination on 07.03.2014 and cleared the physical examination test. He was called for verification of certificates/medical examination. The written test, physical examination test and medical test was held in the presence of high officers of Railway and video recording camera was also used. The candidature of the applicant was cancelled on alleged ground of “indulged in impersonation”. Aggrieved by the above, the applicant has submitted his representation dated 17.06.2014. On 26.06.2014 the respondent no.2 issued a show cause notice to applicant for debarring him for future examinations of Railway Recruitment cell. The applicant has submitted the reply of the show cause notice requesting re-investigation by the respondents. The applicant did not get any suitable response from the respondents, aggrieved by the same the applicant filed OA No.853/2014 which was disposed of by this Tribunal vide order dated 21.07.2014 directing the respondents to decide the applicant’s representation dated 17.06.2014 within a period of six weeks by passing a reasoned and speaking order. The applicant sent his representation alongwith certified copy of the above order on 04.08.2014. The respondent no.2 namely Chairman Railway Recruitment Cell, North Central Railway, Allahabad illegally rejected the representation of the applicant in the mechanical, unreasoned and non-speaking order dated 08.09.2014.

Aggrieved by the above order, applicant filed OA No.1492/2014 in this Tribunal which was decided on 17.01.2018 by the consent of the counsels of both the parties. Again, aggrieved by the order of respondents in compliance of order dated 17.01.2018, the applicant has filed the present application.

The applicant further submits that he has filled his application himself, appeared in the written test, physical test, medical test and after verification of documents, passed the same in presence, Control and supervision of Railway officers, hence cancellation of his candidature is arbitrary, wrong and illegal. The allegation of impersonation by the respondents is vague, mis-conceived, unfounded and based on surmises and conjunctures prejudicing the bright chance of selection of the candidate.

Submission of the learned counsel for the applicant is that the respondents have not followed the direction of this Tribunal and have decided the case of the applicant without providing him proper opportunity of hearing/defence of his case as the thumb impression and handwriting of the applicant could not be examined without allowing the applicant in person and taking his signature/thumb impression as well as handwriting as directed by this Tribunal as is evident from last para of the impugned order dated 18.07.2018. The respondents have not called the applicant for taking thumb impression and for handwriting examination physical but have passed the impugned order dated 18.07.2018 ex-parte against the direction of the Tribunal vide order dated 17.01.2018. The applicant further submitted that the written test, physical examination test, medical test was held in the presence, superintendence and control of high officers of railway and vedio camera recording was also done. The applicant himself has filled the application form and hence cancelling the candidature of the applicant on the ground of impersonation is arbitrary, wrong and baseless and requested to allow this original applicant and direct the respondents to appoint the applicant on Group ‘D’ post forthwith.

Per contra respondents have submitted that the railway Recruitment Cell, N.C. Railway, Allahabad has advertised Group “D’ posts in Grade pay of Rs.1800/-. The Applicant Shri Nem Kumar was successful in the first stage, was called for document verification and medical test on 01.05.2014. During the document verification some doubts were arisen and the applicant’s documents were sent for verification to Government Examination of Questionable Document (GEQD) and report was obtained from the official of GEQD, and it was found that the handwriting on the application form and on answer sheet are not of the same person. A show cause notice dated 20.06.2014 was issued under doctrine of natural justice for inviting clarification on proposed allegation within thirty days. After a lapse of thirty days again the case was re-examined by the competent authority and the allegation as framed in the show cause notice was found correct and the decision of the competent authority was informed to the applicant on 26.08.2014 cancelling the appointment for group ‘D’ post and also debarring him from all RRC/RRB’s examination for appointment in railways.

Aggrieved by the above decision of the respondents, applicant has filed OA No.853/2014 before this Tribunal and in judgment dated 21.07.2014 this Tribunal directed the respondents to decide the representation dated 17.06.2014 within a period of six weeks from the date of receipt of certified copy of this order by passing a reasoned and speaking order. The RRC has complied the judgment and duly informed the applicant that the representation of the applicant has been decided. Aggrieved by the decision of the respondents applicant has filed another OA No.1492 of 2014 and this Tribunal passed the judgment dated 17.01.2018. Relevant portion of the judgment is quoted below:-

“With the consent of both the learned counsel, the OA stand disposed to with the direction to respondents to retest the thumb impression as well as the signature of applicant by another laboratory and by handwriting expert and if the case of impersonation is not being established, the applicant will be given appointment, as he had already selected by the respondents. This exercise shall be completed within a period of six months, as prayed by respondents’ counsel, from the date of receipt of certified copy of the order………..”

In compliance of the order dated 17.01.2018 in OA No.1492 of 2014 the respondents have re-tested the thumb impressions/handwriting by another agency and found that thumb impression/handwriting is different at different stages of examination. Thus, thumb impression/handwriting available on application form, did not match with the thumb impression/handwriting on OMR sheet during examination. Other agency also confirmed the mismatch of thumb impression/handwriting. The same was conveyed to the candidateand duly informed vide letter No.EA/Lit/CAT/RRC/NCR/ALD/1492/91/NK dated 18.07.2018 by registered post. Again the applicant has filed OA No.798 of 2018 seeking similar remedy. The present original application is devoid of merit.

Heard the rival submissions of the learned counsel for the parties and perused the documents available on record.

The respondents have relied upon the following judgments:-

The Hon’ble Apex Court in the case of Pitta Naveen Kumar Vs. Raja Narasaiah Zangiti (SCC 273 para 32).

“32.....A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of India has only right a to be considered therefore. Consideration of the case of individual an candidate although ordinarily is required to be made in terms of the extant rules by strict necessary thereto adherence in where case a would be the rules operate only to the disadvantage of the candidates otherwise.”

The Hon’ble Apex Court in the case of Sanchit Bansal Vs. Joint Admission Board 2121 ESC (SC) held as under:-

"1. Violative of any enactment, statutory rules and regulation. Malafide or ulterior motives to assist enable private gain to someone or cause prejudice to any one or where the procedure adopted is arbitrary and capricious. An action is said to be arbitrary and capricious where person in particular, a person on authority does any action based on individual discretion by ignoring prescribed rules procedural law and the actions or decisions is found on prejudice of preference rather than reason or facts".

The Hon'ble Apex Court in the case of Karnataka State Road Transport Corporation and other Vs. SD Katturappa and another in civil appeal no.4868 with 4869 of 1999 decided on 03.03.2005 held as under:-

“The question as to what extent, principal of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principals of natural justice cannot be applied in vacuum. It cannot be put in any straight jacket formula. The principals of natural justice are furthermore not required to be complied with when it will lead to an empty formality."

In the case of Syndicate Bank and Others Vs. Venaktesh Gururao Kurati JT (2006) 2 SC 73 it was held as under:-

“….The allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice."

The Hon'ble Supreme Court in the case of Directorate of Film Festivals & Others Vs. Gaurav Ashwin Jain & Ors on 11th April, 2007, 2001 (4) SCC 757, held as under:-

"Courts also not and cannot act appellate authorities examining the correctness, reasonability and appropriateness of policy not are courts advices to the executive on matters of policy which the executive is entitled for formulate."

In the case of Sanchit Bansal Vs. Joint Admission Board 2121 ESC (SC) the court has held as under:-

“26. But there is no ground for that court to interfere with the procedure, even if it was the not accurate or efficient, in the absence of malafide or arbitrariness or violative of law".

The Hon'ble Apex Court also affirmed the case of Secretary, All India Pre-medical/Pre Dental examinations, CBSE and others Vs. Khushboo Srivastava and others, 2011 (4) ESC(SC)-637 and Sanchit Bansal Vs. Joint Admission Board 2012 ESC (SC) page 8 para 19—

"Courts will interfere only in the following: (i) Violation of any enactment, statutory rules and regulations, (ii) malafides or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone, or where the procedure adopted is arbitrary and capricious. An action is said to be arbitrary and capricious, where a person, in particular, a person in authority does any action based on individual discretion by ignoring prescribed rules, procedure or law and action or decision is founded on prejudice of preference rather than reason or fact."

The applicant has relied on the judgment of Hon’ble High Court of Allahabad in Writ-A No.21096 of 2018 in the case of Vijay Pal and 22 others Vs. Union of India and 3 Others in which the Hon’ble court has observed as under:-

“31. The respondent-Railways, in their counter affidavit, have not denied that at all stages of the examination, i.e., Written Test and P.E.T., thumb impression and signatures of the candidates was taken and the entire process was video-graphed. In this backdrop, it cannot be said that though the petitioners had appeared for the examination, yet at the same time, there was mismatch in handwriting/thumb impression.

It is not the case of the respondents that the petitioners, herein, had not carried the relevant documents, including, identity card to the examination centre or had not participated in the P.E.T./Medical Examination.

In the circumstances, it cannot be said in absence of any other material available with the Railways, that it is a case of mismatch in handwriting/thumb impression. The inference of the Railways is based on an opinion without being supported by any other material, i.e., the petitioners had not appeared at different stages of the selection process.”

and have provided the reliefs against similarly placed applicants.

The applicant has mainly relied on the judgment of Hon’ble High Court of Allahabad in Writ-A No.21096 of 2018 where, as per applicant, relief was granted to candidates in similar circumstances to similarly placed candidates. On verification of facts, it is found that the above writ petition was filed against the order of this Tribunal dated 01.05.2018 in which candidature for appointment on Group ‘D’ post of applicant were rejected. The issue in present original application is different as well as the thumb impression/handwriting of applicant was compared by different agencies as ordered by this Tribunal in the first O.A.

Here it is pertinent to mention that the judgment in OA No.34 of 2016 relied upon by the respondents in which in similar circumstances the relief to the applicant was denied but the option of permanent debarment was set aside. It is relevant to quote the last para of the impugned order dated 18.07.2018:-

“In compliance of Hon’ble CAT/ALD’s judgment dated 17.01.2018 with above facts and circumstances your thumb impression and hand writing taken during examination was examined by another agency under existing rules but another agency also confirmed the mismatch of hand writing on the application form and that on answer sheet (OMR)/verification sheet. Therefore, it is to inform that your candidature for recruitment on erstwhile group D post in GP Rs.1800/- against Enrol 01/2012 is not feasible under existing rules and your claim for the consideration of your candidature for appointment on group D posts against Enrol.01/2012 is rejected by the competent authority of RRC/NCR/ALD.”

In the present original application the applicant got opportunity of submitting his representation to respondents which was decided by the competent authority. The applicant was still aggrieved and filed another original application in which the order was passed with the consent of both the learned counsel for the parties to take fresh thumb impression/handwriting and to get it tested in another independent lab with the specimen thumb impression/handwriting and result was the same. The thumb impression/handwriting of the candidate did not match with the thumb impression/handwriting obtained during the written examination.

A careful analysis of various citations mentioned by applicant as well as respondents, we are of the view, that the applicant has not established his case and hence the original application lacks merit.

Accordingly, the original application is dismissed. No Costs.

All the related MAs stands disposed of.