Court No. - 36
Case :- WRIT - A No. - 12826 of 2018 Petitioner :- Devendra Kumar Yadav And 05 Others Respondent :- Union Of India And 03 Others Counsel for Petitioner :- Srijan Mehrotra,Mukhtar Ahmad Ansari Counsel for Respondent :- Vikash Chandra Tripathi
Hon'ble Mrs. Sunita Agarwal,J.
By means of the present petition, the petitioners seek to challenge the orders dated 11.7.2015 and 13.7.2015 whereby their representations, challenging the decision taken by the respondent for cancellation of their candidature on the basis of an expert report, have been rejected.
It is vehemently submitted by the learned counsel for the petitioners that the orders impugned have been passed in contravention of the judgment passed by this Court, inasmuch as, the petitioners have not been provided due opportunity of hearing and further the Expert report cannot be made basis for cancellation of the candidature of the petitioners on the allegations of impersonation.
Submission is that the onus was upon the respondents to prove that the petitioners did not participate in the examination of their own.
Submission is that there are number of decisions of this Court wherein it has been held that the Expert opinion would not be conclusive to cancel the candidature of a candidate and the order of rejection of candidature therein has been set aside by this Court. One of such judgment passed by this Court dated 16.4.2018 in bunch of writ petitions has been placed before this Court to submit that the petitioners have not provided due opportunity of hearing and the burden laid upon the respondents has not been discharged.
Considering the submissions of learned counsel for the petitioners and having gone through the record, it is relevant to note that the petitioner was asked to appear in the office of the Board alongwith the original testimonials where his application was processed. As per the procedure adopted by the respondents, a candidate was required to fill up the specimen sheet so as to verify his hand writing, left thump impression and the signatures.
During the said process, the petitioner filled up the specimen sheet by writing a paragraph; putting his thumb impression and the signatures, the said sheet when matched with the original application form filled up by the petitioner, a doubt was raised by the competent authority and the entire material was placed before the finger print expert. After receipt of the said report it was found that the left thumb impression of the petitioner in the answer book/OMR sheet of the original application form did not match. It was, therefore, concluded that the petitioner had impersonated and misappropriated the examination process. His name, therefore, was not included in the list of selectees. The said findings have been returned in the order impugned which were passed on 10.7.2015 and 13.7.2015.
It is noteworthy that the representations of the petitioners were entertained by the respondents after they had approached, this Court in the earlier round of litigations wherein it was directed that the competent authority shall consider their grievances and take a decision.
On a pointed query made by the Court as to what material had been brought before the respondents by the petitioners in order to controvert the stand taken by them regarding impersonation or misappropriation of the examination process, no concrete answer could be given by the learned counsel for the petitioners.
He, however, vehemently argued that this Court has not considered in the earlier writ petition that the expert opinion cannot be made sole basis for rejection of claim of the petitioners.
Submission is that in a bunch of the writ petitions decided on 16.4.2018, it has been held that the expert opinion cannot be made basis to reject the candidature of a candidate on the allegations of impersonation.
Dealing with the submissions of learned counsel for the petitioner, the observations made by this Court in the judgment and order dated 16.4.2018 are relevant to be noted here.
"It shall, however, be open for the respondents to verify identity of petitioners upon material and evidence admissible in law by following the principles of natural justice. The required exercise be undertaken preferably within a period of four months from the date of presentation of certified copy of this order, as petitioners have already lost sufficient time. Based upon such consideration, the respondents shall take a fresh decision in the matter relating to grant of appointment to the petitioners."
From a careful reading of the said directions, this Court finds that the writ petitions therein had challenged the action taken by the respondents for rejection of their candidature being not in conformity with the principle of natural justice. It was held therein that before taking a decision for cancellation of candidature of the petitioners therein and debarring them from appearing in the future examinations for three years, it was incumbent upon the respondents to grant due opportunity to the petitioners therein. This Court has further observed that the report of the Laboratory and opinion of its expert would not be conclusive proof of impersonation on part of the petitioner without consideration of any other material or evidence which could have been brought before the competent authority, in case, opportunity would have been granted to the petitioners therein.
It is, thus, concluded by the Court that an opportunity was required to be granted to the petitioners therein by the respondents so that their identities be verified by the respondents from the material and evidence brought by the petitioners therein by following the principles of natural justice.
The exercise which is now required to be undertaken by the respondents pursuant to the judgment and order dated 16.4.2018 passed by this Court, has already been undertaken in so far as the petitioners herein are concerned. The petitioners herein got adequate opportunity to place the relevant material/evidence before the competent authority alongwith the representations filed by them pursuant to the directions issued by this Court. No such material or record has been brought on record. In absence of any such material to controvert the decision taken by the respondents, it is not open for the petitioner to contradict the finger print expert report and to say that the same cannot be made basis to cancel their candidature.
Even otherwise, the orders impugned have been passed in the year 2015, after a period of approximately three years, this Court does not find any merit in the submission of learned counsel for the petitioner so as to reopen the dead issue.
The writ petition, therefore, is found devoid on merits and is dismissed.
Order Date :- 28.5.2018 AK Pandey