Pawan Kumar vs Staff Selection Commission And Ors

K.N. Shrivastava, Member (A)

This Original Application (OA) has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, praying for the following main reliefs:

"a. In the light of the order dt.19.07.2017 passed by the Hon'ble Supreme Court in SLP (Civil) No. 9019-9021 of 2015 (Civil Appeals No.2836-2838 of 2017) and failure to reply to the representation dated 24.03.2018, set aside the Show Cause Notice dt. 27.05.2013, being illegal and against the principles of natural justice;

b. direct the Respondents to offer appointment to the Applicant on the appropriate post pursuant to his merit alongwith all ancillary benefits and allowances, with retrospective effect from the date of appointment of his counterparts;

c. remove the name of Applicant from the list of withheld candidates and declare the Applicant herein appointed in the Combined Graduate Level Examination, 2012."

The factual matrix of the case, as noticed from the records, is as under:

2.1 The applicant participated in the Combined Graduate Level Examination, 2012 conducted by the Staff Selection Commission (SSC). The result of the said examination was declared on 08.02.2013. The applicant's result was withheld.

2.2 The applicant was issued Annexure A-2 Show Cause Notice (SCN) dated 27.05.2013, which reads as under:

"Whereas Mr./Ms.PAWAN KUMAR Son/daughter of Shri SHORAJ SINGH residing at the aforesaid address, was a candidate of Combined Graduate Level Examination, 2012 notified in the Employed News dated 24.3.2012 and appeared for Tier II of the said examination on the basis of his/her performance in Tier I of the Examination.

Whereas Mr/Ms. PAWAN KUMAR was provisionally called for Interview cum personality Test /CPT/ DEST of the aforesaid Examination.

Whereas the Commission undertakes regular post-examination scrutiny and analysis of performance of the candidates in objective type multiple choice question papers with the help of experts, who have proven expertise in such scrutiny and analysis and had carried out such scrutiny and analysis in the case of written examination papers in Tier II of the aforesaid examination.

Whereas, as informed by SSVC (Hqrs.), in controvertible and reliable evidence has emerged during such scrutiny and analysis that Mr./Ms. PAWAN KUMAR had resorted to copying in the said papers in association with other candidates who also took the same examination.

Hence, as directed by SSC (Hqrs.), Mr./Ms. PAWAN KUMAR is hereby given an opportunity to show cause, within 10 days of issue of this notice, as to why his/her candidature should not be cancelled and why he/she may not be debarred for five years from appearing Commission's examinations due to his/her indulgence in unfair means in above mentioned examination.

If he/she fails to respond within prescribed time limit his/her candidature for above mentioned examination will be cancelled and he/she will be debarred for five years from appearing Commission's examinations and thereafter no further correspondence will strictly be entertained."

2.3 The respondents published a revised Select List on 30.05.2013 in which against the applicant's name it was indicated as status - withheld. 2.4 The applicant in his Annexure A-1 leteter dated 24.03.2018, addressed to Chairman, SSC-R-1 has inter alia stated that he has not indulged into any malpractice and that he had replied to the Annexure A-2 SCN dated 27.05.2013 on 10.06.2013 itself and for no reasons his result has been withheld. The applicant has also relied on the judgment of this Bench of the Tribunal in OA No.1352/2012 - Ashok Kumar v. SSC and others, decided on 20.11.2013 and in OA No.930/2017 - Sudesh v. SSC and others, decided on 30.07.2014. The applicant has further stated that the order of the Tribunal in Sudesh (supra) was challenged by the respondents before the Hon'ble High Court of Delhi in W.P.C. No.9055/2014 with CM No.20669-670/2014, which was dismissed and the order of the Tribunal was upheld, whereby the Tribunal had directed to declare the results and issue appointment letter to the applicant therein. It is further stated that the SLP filed against the judgment of the Hon'ble High Court of Delhi in Sudesh (supra) was dismissed by the Hon'ble Supreme Court vide order dated 19.07.2017 in Civil Appeal Nos.2836-2838 of 2017 (SSC v. Sudesh).

When the matter was taken up for admission on 12.04.2018, the issue of admissibility of the OA was pointed out by us to the learned counsel for the applicant. It was mentioned that the notifications of the respondents, withholding the result of the applicant was issued on 08.02.2013 and 30.05.2013 whereas the representation against the non-declaration of the result was submitted by the applicant to R-1 on 24.03.2018 (Annexure A-1). Hence, the limitation involved is required to be explained by the applicant. The learned counsel for the applicant, however, submitted that the applicant had replied to the Annexure A-2 SCN way back on 10.06.2013 itself but there was no communication from the respondents thereafter. The applicant, therefore, did not know as to whether his reply has been accepted by the respondents or not. The learned counsel further argued that the applicants in Sudesh (supra) and Ashok Kumar (supra) were identically placed and the Tribunal had granted relief to them by directing the respondents to declare their results as the charge of copying had not been conclusively proved by the respondents. The applicant is also seeking similar relief in this OA. The order of the Tribunal in Sudesh (supra) has been affirmed by the Hon'ble High Court of Delhi and Hon'ble Supreme Court. The learned counsel also placed reliance on a judgment of this Bench of the Tribunal in OA No.546/2018 -Ravikant v. SSC, decided on 05.04.2018, wherein relying on the judgment of the Tribunal in Ashok Kumar (supra) and Sudesh (supra), relief has been granted by the Tribunal.

We have considered the arguments of the learned counsel of the applicant on the issue of admissibility. The applicant has not placed on record any document to prove that he indeed had replied to the Annexure A-2 SCN dated 27.05.2013 albeit he has stated as such in his Annexure A-1 representation to the SCN. The applicant has only placed on record his Annexure A-1 representation dated 24.03.2018 and immediately thereafter, on 10.04.2018, he has filed the OA. The documents placed on record would indicate that the applicant kept mum from 2013 onwards and has got activated after he has come to know of the judicial pronouncements in the cases of Sudesh, Ashok Kumar and Ravikant (supra). The applicant has remained a fence sitter all through. Such fence sitters forego their claim for relief, as has been observed by the Hon'ble Supreme Court in BSNL Vs. Ghanshyam Das & Ors., reported in (2011) 4 SCC p.374, that the order of the Tribunal may not be treated as a judicial precedent for those who were sitting at the fence. Paras 25 and 26 of the judgment read as under :

"25. The principle laid down in K.I. Shephard (supra) that it is not necessary for every person to approach the court for relief and it is the duty of the authority to extend the benefit of a concluded decision in all similar cases without driving every affected person to court to seek relief would apply only in the following circumstances:

(a) where the order is made in a petition filed in a representative capacity on behalf of all similarly situated employees;

(b) where the relief granted by the court is a declaratory relief which is intended to apply to all employees in a particular category, irrespective of whether they are parties to the litigation or not;

(c) where an order or rule of general application to employees is quashed without any condition or reservation that the relief is restricted to the petitioners before the court; and

(d) where the court expressly directs that the relief granted should be extended to those who have not approached the court.

On the other hand, where only the affected parties approach the court and relief is given to those parties, the fence-sitters who did not approach the court cannot claim that such relief should have been extended to them thereby upsetting or interfering with the rights which had accrued to others."

Further, the Hon'ble Apex Court in Chennai Metropolitan Water Supply and Sewerage Board and others v. T.T. Murli Babu, [(2014 ) 4 SCC 108 has held as under:

"A court is not expected to give indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."

In the conspectus, we are of the view that the applicant's request to remove his name from the list of withheld candidates and declare him appointed in the Combined Graduate Level Examination, 2012, cannot be considered at this late stage. The applicant has not satisfactorily explained the delay involved. Hence, we dismiss this OA at the admission stage itself on the ground of limitation.

No order as to costs.