Central Administrative Tribunal - DelhiMahipal Bhuker vs M/O Railways on 18 May, 20231\n                                              OA No.109 of 2017\n\n\n\n\n            Central Administrative Tribunal\n              Principal Bench, New Delhi\n\n                    O.A. No.109/2017\n\n                                   Reserved on: 27.03.2023\n                                Pronounced on: 18.05.2023\n\n        Hon'ble Mr. Anand Mathur, Member (A)\n         Hon'ble Mr. Manish Garg, Member (J)\n\n    Sh. Mahipal Bhuker, Aged about 24 years,\n    (Designation-Pointsman)\n    S/o Sh. Sukhbir,\n    R/o VPO Goria, Tehsil Matanhail,\n    District Jhajjar, Haryana.\n                                               ...Applicant\n    (By Advocate: Mr. Arun Khatri)\n\n                           Versus\n\n       1. Chairman Railway Recruitment Cell (RRC)\n          Northern Railway,\n          Lajpat Nagar-1,\n          New Delhi - 110 024.\n\n       2. Ministry of Railway\n          through its Secretary,\n          Rail Bhawan, Rafi Marg,\n          New Delhi - 110 001.\n                                            ...Respondents\n    (By Advocate:   Mr. Piyush Gaur)\n\n                       ORDER\n\nBy Hon'ble Mr. Anand Mathur, Member (A):An overview\n\n\n    Pursuant to Employment Notice dated 30.12.2013\n\ninviting application for Group-D posts in Pay Band\n\nRs.5200-20,200/- with Grade Pay of Rs.1800/-, the\n\napplicant applied for the said post. Having been declared2OA No.109 of 2017successful in the Written Examination, Physical Efficiency\n\nTest (PET) and document verification, he was provisionally\n\nempanelled for the post of Pointsman in Ferozepur\n\nDivision. However, his name was withdrawn from such\n\nprovisional      list   of    empanelled     candidates    and     his\n\ncandidature was finally cancelled and he was debarred\n\nfrom taking any examination to be conducted by Indian\n\nRailways.2.    Learned counsel for the applicant stated as under:-2.1   In response to an advertisement dated 30.12.2013\n\n      issued by the respondents for recruitment to Group-D\n\n      posts in Pay Band Rs.5200-20,200/- + GP Rs.1800,\n\n      the applicant applied for the said post, appeared in\n\n      the Written Examination and Physical Efficiency Test\n\n      (PET) under Roll No.30002586 [Control No.11033413].2.2   In the result published by the respondents, the\n\n      applicant           was      found       selected/empanelled\n\n      provisionally for the post of Pointsman in Ferozpur\n\n      Division and was asked to await call letter from the\n\n      allotted     Unit      in   30-45    days.   Meanwhile,      the\n\n      respondents published a notice on their website\n\n      wherein it was mentioned that 'your name has been\n\n      withdrawn from the list of provisionally empanelled3OA No.109 of 2017candidates, for further scrutiny. Please wait for further\n\n      status updation'. The respondents published another\n\n      notice mentioning therein that 'case rejected - unfair\n\n      means used during the examination'.2.3   The respondents issued a final notice alleging that a\n\n      post selection scrutiny was conducted in which it had\n\n      been found that candidates used unfair means while\n\n      writing their papers which included copying or scoring\n\n      through fraudulent activities by using various means\n\n      like bluetooth, microphone and high fidelity scanner\n\n      and clandestine device.2.4   The enquiry, which is stated to have been conducted,\n\n      was conducted in a secret manner by the respondents\n\n      and nothing had been disclosed as to how they came\n\n      to the conclusion that the applicant had used unfair\n\n      means in the said exam. A bare perusal of the notice\n\n      reveals that RRC, Northern Railway was not sure what\n\n      unfair means were used as in para no.3 of the notice,\n\n      they had mentioned 'copying or scoring through\n\n      fraudulent activities by using various means like blue\n\n      tooth, microphone and high fidelity scanner and\n\n      clandestine device'.4OA No.109 of 20172.5   Para 4 of the notice also reveals that the result in the\n\n      form of Algorithm system of checking was further sent\n\n      to the apex institution of Government of India for\n\n      statistical   analysis    and     conclusion.      The      said\n\n      institution advised that answers of the applicant had\n\n      been found to be tallying with the matched pattern\n\n      since he had left blank the answers for some\n\n      questions and followed the same pattern even for\n\n      wrong answer options. But it was not mentioned with\n\n      how many candidates answers of the applicant were\n\n      found to have matched. The said advice which is\n\n      based on conjectures and surmises is against the\n\n      rules and on that basis, the respondents cannot be\n\n      allowed to spoil the career prospects of the applicant\n\n      by flouting the principles of natural justice.\n\n\n2.6   The applicant filed the instant OA underSection 19of\n\n      the Administrative Tribunals Act, 1985 seeking the\n\n      following relief:-"a)  Quash and set aside the final notice of\n           RRC (Railway Recruitment Cell), Northern\n           Railway regarding cancelling the candidature\n           and selection of the Applicant for Group D post\n           in pay band 5200-20200 with grade pay of\n           Rs.1800 and debarring him from taking and\n           examination conducted by Indian Railways; andb)    Issue a direction for giving joining to the\n           Applicant to the above said post as per rules;5OA No.109 of 2017c)    Grant such other order or further relief\n          under the present facts and circumstances of\n          the case as this Hon'ble Tribunal deems just\n          and equitable in favour of the Applicant."3.   Per contra, the respondents have filed counter affidavit\n\n     opposing the claim of the applicant. In pursuance of\n\n     Employment Notice dated 30.12.2012, recruitment\n\n     process to fill up 5679 vacancies in Group-D in Pay\n\n     Band of Rs.5200-20200 + GP Rs.1800 for various\n\n     Workshops/Units        was          initiated.   In     the       said\n\n     Notification, apart from detailed information, it was\n\n     clearly   stipulated         that      mere      selection        and\n\n     empanelment         would     not      confer    any      right     of\n\n     appointment     to     the        candidates.     Admission         of\n\n     candidates at all stages of recruitment would be\n\n     purely provisional subject to satisfying the prescribed\n\n     conditions. It was also stipulated that calling of\n\n     candidates    for    document         verification     would      not\n\n     automatically confer any right upon them for their\n\n     medical examination or appointment on any post.\n\n     Candidates were also advised to remain in touch with\n\n     RRC website for further information to be published\n\n     from time to time. Para 11 of the notification\n\n     contained the information that misconduct on the\n\n     part of candidates at any point of the recruitment6OA No.109 of 2017process would be strictly prohibited and indulgence in\n\n      the same would result in rejection of their candidature\n\n      and appropriate action including criminal action\n\n      would be taken by the RRC against candidates found\n\n      guilty of submitting fabricated, forged, tampered\n\n      certificates and using unfair means during the written\n\n      examination or PET etc.\n\n\n3.1   To find out the copying or scoring through fraudulent\n\n      activities by using various means like bluetooth,\n\n      microphone and high fidelity scanner and clandestine\n\n      devices, some scientific test checks were conducted on\n\n      the answering pattern on such candidates whose\n\n      result was withheld. These checks in the form of\n\n      algorithm system of checking were further sent to\n\n      most reputed institutions run by the Govt. of India for\n\n      statistical analysis and conclusion. It had been\n\n      advised by the experts that the outcome leads to\n\n      copying of answers. In order to maintain fairness,\n\n      integrity and trust of the examination, the competent\n\n      authority had decided to cancel the candidature of\n\n      such candidates.3.2   Initially the name of the applicant was included in the\n\n      provisionally empanelled candidates but on receipt of7OA No.109 of 2017some confidential information, his case including ten\n\n      others was also referred to the same expert for\n\n      analysis as had been done in earlier cases whose\n\n      result   was    withheld.       On   receipt   of    the    report\n\n      confirming the use of unfair practices during the\n\n      written examination, candidature of all such 11\n\n      candidates including the applicant were rejected for\n\n      the said examination debarring them from appearing\n\n      in Railway examinations. However, taking a lenient\n\n      view,    it   was   decided      not   to   initiate     criminal\n\n      proceedings against them.3.3   As far as violation of the principles of natural justice,\n\n      as alleged by the applicant, is concerned, the\n\n      respondents have stated that the principles of natural\n\n      justice do not supplant the law but supplement the\n\n      law as held by the Hon'ble Supreme Court inUmrao\n\n      Singh Choudhary vs. State of Madhya Pradesh &\n\n      Anr.[1994 (4) SCC 328] and to sustain the allegation\n\n      of violation of principles of natural justice, one must\n\n      establish that prejudice has been caused to him for\n\n      non-observance of the aforesaid principles as held by\n\n      the Hon'ble Apex Court inSyndicate Bank & Ors.\n\n      vs. Venaktesh Gururao Kurati [JT2006 (2) SC 73.8OA No.109 of 20173.4   Merely because the applicant's name appeared in the\n\n      select list, it does not confer any indefeasible right to\n\n      get him appointed.Rather, the employer has got a\n\n      right to cancel the candidature if it is established that\n\n      the candidate used unfair means in the examination\n\n      as has been held by the Hon'ble Apex Court in\n\n      Shankarshan Dass vs. UOI [AIR 1991 (SC) 1612];T.Jay Kumar vs. A. Gopu[2008 (9) SCC 403] and\n\n      Ekta Shakti Foundation vs. Govt. of NCT of Delhi[2006 (II) SC 709].3.5   The respondents have also relied upon the decision in\n\n      a similar matter i.e. Jitendra Kumar vs. Union of\n\n      India & Ors. [OA No.291/00359/2015 decided on\n\n      07.07.2015 by the Jaipur Bench of this Tribunal]\n\n      wherein it has been held as under:-"We find that the cancellation of candidature of\n             the applicant for the examination conducted in\n             November'2014 and also permanently debarring\n             from taking any examination to be conducted in\n             future by Indian Railways is based on\n             misconduct of the applicant, which he has\n             committed in the said examination. Therefore,\n             we find no reason to interfere with the matter.\n             We find that the applicant is not entitled for any\n             relief sought for. Accordingly, the Original\n             Application is dismissed in limine. No order as to\n             costs."3.6   Further, Hon'ble high Court of Delhi, while dealing\n\n      with    a   similar    issue       in   LPA   No.155/2013        on9OA No.109 of 201724.11.2015, upheld the orders dated 06.02.2013 in\n\n      WP(C)   No.3707/2011            of   learned   single      Judge.\n\n      Relevant portion whereof reads as under:-"The Court is conscious that technology often\n           empowers citizens; at the same time it has the\n           potential to facilitate misuse. In the context of\n           the facts of this case, Court is not persuaded\n           with the appellant's submission that without\n           tangible material or evidence, the SBI could not\n           have inferred the employment of "unfair means"by candidates generally and the petitioner in\n           particular. Use of electronic devices to transmit\n           information either in form of text messages or by\n           use of hidden listening devices which go\n           undetected may be hard to establish. That does\n           not mean that patterns which are discernible\n           and are thrown up on application of scientific\n           formulae or statistical models, which leads to\n           further examination of the primary material\n           should be eliminated by the Courts. In the\n           present case, the pattern which emerged\n           showed that the appellant's results in respect of\n           wrong answer matched with some other\n           candidates who also appeared in the New Delhi\n           entre. On further scrutiny, the reasonableness of\n           the suspicion was strengthened by the manner\n           of his attempting the answers. These, in the\n           opinion of the Court, were sufficient basis for the\n           SBI to conclude that unfair means had been\n           employed and withhold his result. The\n           directions sought are, therefore, unavailable in\n           exercise of judicial review discretion underArticle 226of the Constitution. As a result, this\n           Court finds that the impugned judgment and\n           order of the learned single Judge does not call\n           for interference. The Appeal is, therefore,\n           dismissed without any order as to costs."\n\n\n\n3.7   In view of the aforesaid submissions as also the\n\n      citations, learned counsel for the respondents states\n\n      that candidature of the applicant has rightly been\n\n      rejected. Hence, the OA deserves to be dismissed.10OA No.109 of 20174.   The applicant filed a rejoinder to the counter affidavit\n\n     opposing the same and reiterating his stand taken in\n\n     the OA, stating that it is a completely arbitrary and\n\n     illegal act on the part of the respondents and final\n\n     notice published on their website cancelling his\n\n     candidature    is   vague,       insufficient,   inadequate,\n\n     violative of principles of natural justice and bad in\n\n     law. To buttress his argument, he has sought parity\n\n     with the decision of a Co-ordinate Bench of this\n\n     Tribunal inSudesh vs. Staff Selection Commission\n\n     & Ors. [OA No.930/2014and batch decided by a\n\n     common order dated 30.07.2014], vide which a\n\n     similar vague, insufficient and inadequate notice\n\n     issued by SSC in                      violation of principles\n\n     of natural justice was quashed           with a direction to\n\n     SSC to declare the result of applicants therein and\n\n     allocate them services for which they were found\n\n     eligible on the basis of pure merit. The aforesaid\n\n     decision was upheld by the Hon'ble High Court of\n\n     Delhi in WP(C) No.9055/2014 and CM Nos.20669-\n\n     670/2014 decided on 19.12.2014 and also by Hon'ble\n\n     Apex   Court   in   Civil    Appeal No.2836-2838/2017\n\n     decided on 19.07.2017. The relevant portion of the\n\n     decision of the Hon'ble High Court reads as under:-11OA No.109 of 2017"12. We have heard learned counsel for the\npetitioner, perused the impugned order and the\nrelevant record and considered the submissions.\nThe first show-cause notice was quashed by the\nTribunal, firstly on the ground that it lacked in\nmaterial particulars inasmuch, as, it did not\ncontain any details of the alleged malpractice/\ncopying and the modus operandi allegedly\nadopted by the applicant in coming to the\nconclusion that the applicant had resorted to\nany malpractices/ copying in the Tier-II\nexamination. It is, precisely, for this reason that\nthe Tribunal required the furnishing of details,\nas aforesaid in paragraphs 20 to 24 of its order\ndated 22.11.2013. The rationale behind the\npetitioner SSC being required to furnish the\ndetails was simply that the applicant and other\ncandidates could not be condemned on the\nbasis of vague and non-specific allegation of a\nserious nature, which impinge on their\ncandidature and future prospects. If, according\nto the petitioner, malpractice/ cheating had been\nresorted to by the applicant and the other\ncandidates, it was essential that such\ncandidates were, at least, informed of the basis\non which it had been concluded, or a prima-facie\nview formed, that such malpractices/ act of\ncheating had been undertaken. The petitioner\nshould have given the reasons for its said\nconclusions, by disclosing as to what was the\nanalysis undertaken by the experts/ outside\nagency; what was the pattern discerned by the\noutside experts upon analysis of the answer-\nsheets of all such candidates, and; that the\ndisclosed pattern could lead to a reasonable\ninference - with a very high probability/ near\ncertainty of cheating/ malpractice. Without\nsuch disclosure, the applicant and other\ncandidates were left in the dark, not knowing\nhow to meet the serious allegations made\nagainst them, except by simply denying the\nsame - which they did.xxx                 xxx                 xxx15. In our view, therefore, the Tribunal was\njustified in quashing the second show-cause\nnotice which suffered from the same lacunae of\nbeing vague and devoid of any relevant\nparticulars, and there was no purpose in\npermitting the petitioner to deal with the replies\nand pass any further order on the basis of such\na vague show-cause notice. The said show-\ncause notice did not fulfill the basic\nrequirements of principles of natural justice12OA No.109 of 2017inasmuch, as, the respondent-applicant could\n           not effectively have met the allegations made\n           against him - except to deny the same (which he\n           did), in view of the show-cause notice itself\n           being     completely    vague     and   devoid\n           of particulars.16. Consequently, we find no merit in the\n           present petition and dismiss the same."4.1   Further, the applicant relied upon the decision of a\n\n      Co-ordinate    Bench      of   this    Tribunal        in   OA\n\n      No.1497/2012 and OA No.2573/2012 whereby the\n\n      Tribunal had allowed these OAs, which was also\n\n      upheld by the Hon'ble High Court of Delhi in WP(C)\n\n      No.7416/2013.5.    We have heard Mr. Arun Khatri, learned counsel for\n\n      the applicant and Mr. Piyush Gaur, learned counsel\n\n      for the respondents and have perused the material on\n\n      record as well as citations relied upon by both the\n\n      learned counsel for the parties.5.1   The applicant has challenged the final notice of\n\n      Railway Recruitment Cell, Northern Railway regarding\n\n      cancelling the candidature and selection of the\n\n      applicant for Group-D post in pay band Rs.5200-\n\n      20200/- with GP of Rs.1800 and debarring him from\n\n      taking any examination conducted by the Indian\n\n      Railways. The stand taken by learned counsel for the13OA No.109 of 2017applicant is that the respondents have secretly held\n\n      an enquiry and have not only cancelled applicant's\n\n      candidature but have also debarred him from future\n\n      examinations without involving him in any way or at\n\n      least giving him a copy of the report of the enquiry.\n\n      The stand of the respondents, on the other hand, is\n\n      that   while   statistically   analyzing      the   result    of\n\n      candidates, i.e., pattern of answers given, answers left\n\n      blank etc., there was a prima facie indication of\n\n      copying/cheating     by    using     unfair    means.        The\n\n      respondents in their counter reply have, inter alia,\n\n      stated as under:-"7...To find out the copying or scoring\n                through fraudulent activities by using\n                various     means      like  blue    tooth,\n                microphone and high fidelity scanner and\n                clandestine devices, some scientific test\n                checks were conducted on the answering\n                pattern on such candidates whose result\n                was withheld. These checks in the form\n                of algorithm system of checking were\n                further sent to the most reputed\n                institution, run by Govt. of India, for\n                statistical analysis and conclusion. It has\n                been advised by the expert of this\n                institute of GOI that the outcome leads to\n                copying of answers. For the reason to\n                maintain the fairness, integrity and trust\n                of the examination, competent authority\n                i.e. Chairman/RRC decided to cancel the\n                candidature of such candidates."5.2   As May be seen from the above, it is a fact that certain\n\n      discreet statistical checks in the form of algorithm14OA No.109 of 2017system of checking were conducted and prima facie, it\n\n      was felt that a detailed statistical analysis was called\n\n      for. Accordingly, the matter was sent to the most\n\n      reputed institution run by Government of India for\n\n      statistical analysis and conclusion. Based on their\n\n      response, the action against the applicant had been\n\n      taken. Due to sensitivity and nature of the analysis, it\n\n      was not advisable to inform the applicant about the\n\n      report.5.3   We tend to agree with the stand taken by the\n\n      respondents, inasmuch as the exam conducted by the\n\n      Railway Recruitment Cell for Group-D is one of the\n\n      largest public examinations conducted in this country\n\n      where     number   of   applications   run    into     lacs.\n\n      Transparency, fairness and zero tolerance for use of\n\n      any unfair means are the hallmarks of such a public\n\n      examination.5.4   As brought out above, the respondents have made use\n\n      of specialized statistical tools which have been\n\n      confirmed by experts in that field. We have no reason\n\n      to doubt the veracity of their findings. We also agree\n\n      that such confidential findings cannot be made\n\n      public. Giving any relief to the applicant whose use of15OA No.109 of 2017unfair means has been established by an expert body\n\n       would tantamount to encouraging the use of unfair\n\n       means. There are certain confidential procedural\n\n       requirements     while     conducting     mass        public\n\n       examination    which     cannot   be   made     public     as\n\n       disclosing the same would not be in public interest.6.     Taking an overall view of the matter, we find that the\n\n       respondents were well within their rights to disqualify\n\n       the applicant by cancelling his candidature for the\n\n       post in question. The OA is accordingly dismissed\n\n       being bereft of merit.7.     No order as to costs.(Manish Garg)                                  (Anand Mathur)\n Member (J)                                      Member (A)\n/na/