Shishpal vs Staff Selection Commission & Others

Pradeep Kumar, Member (A)

Applicant herein was a candidate for Common Graduate Level Examination, 2012 (CGLE-2012) being conducted by SSC. He appeared in the Tier-

1, Tier-2 as well as the third stage (which is interview). His result was, however, withheld as per notice on website of SSC on 30.05.2013. A show

cause notice was issued to the applicant on 27.05.2013 alleging that certain malpractices/copying has been done by him in Tier-2 stage of examination.

The operative part of this show cause notice reads as under:

“xxx

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 SSC (Hqrs.), incontrovertible and reliable evidence has emerged during such scrutiny and analysis that Mr./Ms SHISHPAL

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 SHISHPAL 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.

xxxxâ€​

The applicant submitted his reply on 10.06.2013. There was no decision communicated to him. Feeling aggrieved, this OA has been filed. Following

reliefs were sought:

“(i) to quash and set aside the SCN dated 27.05.2013 and to further direct the respondent that the applicant be given appointment as per the

selection process conducted by SSC under Combined Graduate Level Examination (CGL), 2012 with all consequential benefit including seniority and

promotion and pay & allowance

Or

(ii) Any other relief which this Hon’ble court deems fit and proper may also be awarded to the applicant.â€​

The applicant brings out that the same show cause notice dated 27.05.2013 with exactly the same allegation, except for change of name of the

candidate, was issued to a large number of other candidates also for the said examination. These notices were challenged by those candidates by filing

OA No.1352/2013 and batch. The OAs was disposed of by a common order dated 22.11.2013, whereby the show cause notice dated 27.05.2013 was

quashed, however, liberty was granted to the respondents to issue a fresh show cause notice, if necessary, by including all the evidence, details of the

malpractice of copying in Tier-2 examination and thereafter pass a speaking order within two months. The operative part of this order reads as under:

“22. In the present case, the impugned Show Cause Notice do not indicate the details of malpractice committed by the candidate or what was the

nature of copying indulged by the candidate. It is only stated that incontrovertible and reliable evidence has been emerged during the regular post

examination scrutiny and analysis of performance of the candidate by the experts, who have proven expertise, that the candidates have resorted to

copying in association with other candidates who also look the same examination. The respondents, though taken substantial time for filing counters

but not chosen to file the same finally. Therefore, there is no occasion to this Tribunal to know what was the method adopted by the respondents-SSC,

to come to the aforesaid conclusion on the conduct of the candidates. It is also not on record that a particular candidate committed the alleged

malpractice individually or in association with any other candidate and if so, who is the said candidate and in what manner both of them done the

mischief. Though the learned counsel for the respondents, vaguely submitted that the answer books of the candidates were compared with the answer

books of other candidates by using highly technical and scientific methods and basing on the proportional similarities in giving right and wrong answers

and also in not answering certain questions at all, neither he placed the so called specific procedure or method or modus operandi adopted by the

Experts nor stated the specific malpractice/ copying alleged to have committed by each applicant. In the absence of the same, this Tribunal cannot

express any opinion on the validity or otherwise of the said modus operandi, said to have been adopted by the respondent-SSC. For all these reasons,

the impugned Show Cause Notices being violative of principles of natural justice are liable to be quashed.â€​

2.1 Respondents issued a fresh show cause notice dated 28.01.2014. However, it was alleged that complete details were still not given and this new

show cause notice was practically on the same lines as of earlier show cause notice. The applicants preferred another OA No.930/2014 and batch.

These were adjudicated by the Tribunal vide a common order dated 30.07.2014, relying upon a judgment by Hon’ble High Court of Punjab in

CWP No.24380/2012. The said show cause notice dated 28.01.2014 was also quashed and the respondents were directed to declare the result. The

operative part of the order dated 30.07.2014 passed in OA No.930/2014 and batch reads as under:

“48. In view of the aforenoted reasons, we hold that the impugned second show cause notice dated 28.01.2014 (in the lead OA) as well as the

show cause notice issued to all applicants in the connected OAs, are not fit to be legally sustained. Accordingly, we quash and set aside the same.

Consequently, the respondents are directed to declare the result of all applicants in these OAs and to allocate them the Service for which they have

been found eligible on the basis of pure merit, if they have been found successful. We clarify that while doing so the 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.

All these OAs are allowed as per the aforenoted directions in this common order. With the passing of this order, interim orders, if any shall stand

vacated. In the circumstances, parties shall bear their own costs.â€​

2.2 Another OA No.2839/2014 and batch, was also decided on similar lines vide judgment dated 17.09.2014.

The respondents challenged these orders before Hon’ble High Court of Delhi in WP (C) No.9055/2014. This writ was dismissed on 19.12.2014

and thus the decision of this Tribunal was upheld. The operative part of this order reads as under :

“15. In our view, therefore, the Tribunal was justified in quashing the second show-cause notice which suffered from the same lacunae of being

vague and devoid of any relevant particulars, and there was no purpose in permitting the petitioner to deal with the replies and pass any further order

on the basis of such a vague show-cause notice. The said show-cause notice did not fulfill the basic requirements of principles of natural justice

inasmuch, as, the respondent-applicant could not effectively have met the allegations made against him â€" except to deny the same (which he did), in

view of the show-cause notice itself being completely vague and devoid of particulars.

Consequently, we find no merit in the present petition and dismiss the same.â€​

Thereafter, the above judgement by Hon’ble High Court in WP (C) No. 9055/2014, was challenged by the respondents â€" SSC, before

Hon’ble Apex Court, by filing SLP No.9019-9021/2015. The Hon’ble Apex Court vide order dated 06.04.2015, was pleased to stay the orders

passed by Hon’ble High Court of Delhi. These interim orders read as under:

“Issue notice to the Respondent returnable within three weeks.

Till the next date of hearing, the operation of the Impugned Judgment is stayed.â€​

However, eventually the stay was vacated and the orders passed by the Tribunal in OA No.930/2014 has been upheld by Hon’ble Apex Court,

vide judgment dated 19.07.2017 passed in Civil Appeal No.2836-2838/2017 and Civil Appeal No.2839/2017. The judgment reads as under:

“Heard learned counsel appearing for the parties.

Applications for impleadment are allowed.

We find no merit in these appeals. Accordingly, the civil appeals are dismissed.â€​

Thereafter, the respondents also preferred a review petition No. 2417-2419/2017 in Civil Appeal No.2836-2838/2017 before Hon’ble Supreme

Court, however, the same was dismissed vide orders dated 31.10.2017, This order reads as under

“Application for oral hearing is rejected.

Delay condoned.

We have carefully gone through the review petitions and the connected papers. We find no merit in the review petitions and the same are accordingly

dismissed.â€​

Thus, the orders by Tribunal in para 2.1 above attained finality. These orders have since been complied with and such of the candidates, whose

names appeared in the merit list, were granted appointment in keeping with their merit position and options given by them.

In the instant case, since the same show cause notice dated 27.05.2013 was in question, the OA was kept pending

for want of adjudication by Hon’ble Apex Court (Para 4, 5 and 6 supra). Now since the matter has reached finality, the OA was listed for

hearing.

Matter has been heard at length. Sh. Sachin Chauhan, learned counsel represented the applicants and Sh. Gyanendra Singh, learned counsel

represented the respondents.

The basic issue of malpractice/copying etc., as was alleged in the show cause notice dated 27.05.2013, has already been adjudicated by

Hon’ble Coordinate Bench in OA No.1352/2013 vide a decision dated 22.11.2013. The follow up new show cause notice dated 28.01.2014 and

the orders thereupon, were again challenged in OA No.930/2014 as well as OA No.2839/2014 and batch, which has now reached finality after the

decision of Hon’ble Apex Court in SLP (Para 4, 5 and 6 supra). The respondents have since declared the result in respect of the applicants in OA

No.1352/2013, OA No.930/2014, OA No.2839/2014 and batch and such of the applicants who were selected, have been granted appointments after

completing formalities.

Since the initial show cause notice of 27.05.2013 has already been quashed in OA No.1352/2013 (Para 2 supra), there is no need for any fresh

adjudication in the instant case on this show cause notice because it is the same notice which is under challenge in the instant OA also. This Tribunal

is in respectful agreement with the decision by coordinate bench. Accordingly, the Tribunal quashes the notice dated 27.05.2013 for the instant

applicant also.

Keeping in view the follow up new show cause notice dated 28.01.2014, which was also quashed in OA No. 930/2014 and in OA No.2839/2014

and batch, and follow up directions to declare the result for those petitioners (Para 2.1 and 2.2 supra), and the instant applicant being similarly placed,

the Tribunal is of the considered view that no useful purpose is likely to be served by giving liberty to respondents to issue a fresh show cause notice in

instant case.

Accordingly, the respondents are directed to declare the result of the applicant herein, within a time period of eight weeks, under advice to the

applicant. In case the applicant herein is found successful in the said examination and someone lower in merit has already been appointed, the follow

up action for sending instant applicant’s dossiers to the department which would have been allocated in keeping with merit and option of instant

applicant, shall also be undertaken in this time by SSC and thereafter, the said user department shall also take necessary follow up action for

completing all the formalities for issuing the offer of appointment. For this purpose, if it becomes necessary to create a supernumerary post, to

accommodate the instant applicant, this action shall also be under taken by said department.

In case the applicant herein, is eventually appointed, he shall be given consequential seniority along with his batchmates from this examination and his

pay fixation shall also be granted on notional basis w.r.t. his immediate junior in said department. However, it is directed that no backwages or arrears

are required to be paid. This fixation of seniority and notional pay fixation shall be completed, within a time period of four months of his joining the said

department.

OA is disposed of in above terms.

Pending MA also stands disposed of.