Allowed

Satyendra Tomar v. Union of India and Another

Allahabad HC30 Jan 2019WRIA/46446/2015

Case brief

AI extract

What is this about?

The High Court quashed an order rejecting a railway constable's selection due to a handwriting discrepancy report. Relying on precedents, the court held that expert opinions are not conclusive and principles of natural justice require an opportunity to rebut such findings before removing a candidate from the select list.

What did the court decide?

The impugned order dated 10.07.2015 quashing the petitioner's selection was quashed, and the matter was remitted for a fresh decision.

Satyendra Tomar Vs Union of India and Another — Service and Employment | Allahabad HC (2019)

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Court No. - 18

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Case :- WRIT - A No. - 46446 of 2015

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Petitioner :- Satyendra Tomar Respondent :- Union Of India And Another Counsel for Petitioner :- Vivek Tripathi,Awadh Sharma,Siddharth Khare Counsel for Respondent :- Vivek Singh,Mr Rajnish Kumar Rai,S.C.

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Hon'ble Prakash Padia,J.

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Rejoinder affidavit filed today by learned counsel for the petitioner is taken on record.

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Heard Mr. Siddharth Khare, learned counsel for the petitioner and learned Standing Counsel for the respondents.

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The petitioner has preferred the present writ petition with the following prayers:-

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(i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 10.07.2015 (Annexure No.5 to this writ petition) passed by the respondent No.2.

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(ii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent No.2 to consider the candidature of the petitioner bearing Roll No.5111242918, within a stipulated period as may be fixed by this Hon'ble Court.

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Facts in brief as narrated in the writ petition are that the respondent No.2/Chairman, Zonal Recruitment Committee/Chief Security Commissioner, Railway Protection Force, Gorakhpur issued a notification No.1 of 2011 whereby large number of posts of constables were advertised for the purpose of recruitment.

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The petitioner being physically fit and educationally qualified applied for the post of constable in pursuance of the aforesaid notification. Form submitted by the petitioner was duly accepted and thereafter, the petitioner was issued Admit Care for written examination scheduled for 23.06.2013.

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The petitioner qualified in written examination and thereafter he was directed to appear for physical examination which was scheduled to be held on 2.6.2014. The petitioner duly qualified the same and thereafter he was directed to appear in the Interview which was scheduled for 25.06.2014.

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It is contended by learned counsel for the petitioner that the petitioner has successfully qualified all the aforesaid examinations and thereafter he was directed to appear in medical examination on 5.6.2014. Result of the examination was declared on 5.6.2014 but the name of the petitioner did not find place in the list of selected candidates.

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The petitioner along with several others approached this Court by filing writ petition being Writ A No.53935 of 2014 (Shiv Mangal Prasad and others Vs. Union of India and others). All the writ petitioners in that writ petition vide order dated 28.04.2015 were

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directed to approach respondent No.2 by raising all their grievances and the respondent No.2 was directed to decided the grievances of the petitioners within two months from the date of production of certified copy before him.

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In pursuance of the same, the order impugned dated 10.07.2015 was passed by the respondent No.2 which is challenged in the present writ petition.

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Mr. Siddharth Khare, learned counsel for the petitioner submitted that the petitioner cannot be disqualified only on the ground of mismatch of his signatures. It was further argued that pick and choose policy has been adopted by the respondent No.2 and without applying the norms and criteria as prescribed under the Rules, the candidature of the petitioner was rejected. Hence, the order impugned dated 10.07.2015 is liable to be set aside. Mr. Siddharth Khare, learned counsel for the petitioner placed reliance upon a judgement delivered by this Court in Writ A No.35333 of 2016 (Bhupendra Singh, Roll No.4114042940 Ge Vs. Union of India and 3 others) decided on 30.10.2018. Against the said judgment a Special Appeal Defective No.44 of 2019 (Union of India and 3 others Vs. Bhupendra Singh) was filed and the same was dismissed on 17.01.2019.

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It is admitted between the parties that the controversy involved in the present writ petition is identical in Writ A No.35333 of 2016 Bhupendra Singh, Roll No.4114042940 GE (supra) decided on 30.10.2018. The said judgement is quoted below:-

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"Heard learned counsel for the petitioner and the learned Standing Counsel.

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This petition challenges an order dated 15 November 2015 pursuant to which the selection of the petitioner has come to be annulled on the allegation that he had indulged in impersonation in the selection process. As is evident from a reading of the order impugned, the OMR sheet as well as the signature samples of the petitioner were sent to the "Government Examiner Questioned Documents". Based on the report of this authority, the respondents came to hold that there was a discrepancy between the handwriting appearing on the answer sheet of the petitioner and his signatures as otherwise existing on record. Based solely on this report, the candidature of the petitioner has been rejected and his name removed from the list of selected candidates.

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Sri Siddharth Khare has placed reliance upon the decision rendered by the learned Single Judges in Ran Vijay Singh & others Vs. Union of India and another1 as well as in Tulasi Ram Prajapati Vs. Union of India2 to submit that the report of the "Government Examiner Questioned Documents" was clearly material adverse to the petitioner and once that was being taken into consideration, it was incumbent upon the respondents to grant liberty to the petitioner to challenge the veracity thereof. Sri Khare further submits that no opportunity of hearing was afforded to the petitioner prior to the passing of the order removing his name from the select list.

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Countering the said submissions, learned Standing Counsel contends that the order is not stigmatic and therefore, there was no occasion for the petitioner being granted any opportunity of hearing. He further contends that the decision rendered in Ran Vijay Singh and Tulasi

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Ram Prajapati are clearly distinguishable since in those cases the petitioners therein had also been barred from participating in recruitment exercises in the future.

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Having considered the rival submissions, this Court notes that both in Ran Vijay Singh as well as in Tulasi Ram Prajapati, the Court was faced with an identical situation where the names of the selected candidates were removed on account of a report submitted by the expert which had pointed out that there were discrepancies in the handwriting appearing in the answer-sheet and signatures of the candidates. Dealing with this situation, the learned Single Judge in Ran Vijay Singh observed thus:

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"25. The report of CFSL based upon handwriting expert's opinion, moreover, has not been furnished to the petitioners. Petitioners consequently had no opportunity to controvert it. Attention of the Court has been invited to pages 252, 253, 273, 274, 333 and 334, which contain identical expressions. Report at pages 513, 594 and 554 also contain identical language. In case an opportunity was afforded to the petitioners then all such materials could have been highlighted.

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The respondents were expected to confront the petitioners with material relied upon against them. A show cause containing such materials was required to have been issued, particularly when petitioners were being debarred from appearing in any other exam conducted by Commission for three years. The notice dated 5.8.2015 cannot be construed as a show cause notice. It only called upon the petitioners to give their specimen signatures, handwriting and thumb impression in view of Commission's opinion that they do not match. After the CFSL report was received neither the petitioners were put to any notice, nor the content of report was made known to them.

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The opinion of handwriting expert was required to have been viewed with other materials available on record. Admittedly the petitioners had carried their identity cards, which had been verified at all stages of examination by the Commission and their officers. There cannot be a presumption that all the staffs/employees of Commission had failed to correctly identified the petitioner despite existence of identity card. The presumption that petitioners had identified themselves with reference to specified identity cards could not be lightly brushed aside. The fact that respondents had admitted thumb impressions and specimen thumb impressions with them, which have not been tallied also, is a factor to be kept in mind. There apparently was no reason for the respondents not to have verified the identity of petitioners with reference to their thumb impression, which is an evidence superior to the report of handwriting expert. The nature of expert's opinion otherwise not being conclusive, could not solely be relied upon to cancel petitioners' provisional selection, ignoring other materials, particularly when the order itself was stigmatic."

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The learned Judge who decided Tulasi Ram Prajapati dealing with the question of the weight that may be attached to the opinion of an expert observed:

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"However, it is only an opinion of an expert and this Court in judgment rendered in Rajesh Kumar Vs. Union of India & others 2014 (10) ADJ 672 has observed in paragraphs 11 & 12 thus:-

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"11. Expert opinion is only an opinion and has been considered to be of a very weak nature. The decision of the bank is based on the expert

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opinion alone to establish the guilt of impersonation.

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In Gulzar Ali Vs. State of Himachal Pradesh, 1998 (2) SCC 192, the Supreme Court observed that the observation of the High Court that there is a natural tendency on the part of an expert witness to support the view of the party who called him, could not be downgraded. Many so-called experts have been shown to be remunerated witnesses making themselves available on hire to pledge their oath in favour of the party paying them.

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This Court consideration large number of judgments in Tika Ram Vs. Daulat Ram 2013 (8) ADJ 617 held as follows:-

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"9. Evidence of an expert is only an opinion. Expert evidence is only a piece of evidence and externa. evidence. It has to be considered along with other pieces of evidence which would be the main evidence and which is the corroborative one depends upon the facts of each case. An expert's opinion is admissible to furnish the Court a scientific opinion which is likely to be outside the experience and knowledge of a Judge. This kind of testimony, however, has been considered to be of very weak nature and expert is usually required to speak, not to facts, but to opinions. It is quite often surprising to see with what facility, and to what extent, their views would be made to correspond with the wishes and interests of the parties who call them. They do not, indeed, wilfully misrepresent what they think, but their judgment becomes so warped by regarding the subject in one point of view, that when conscientiously deposed, they are incapable of expressing a candid opinion."

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The Court has made the observation in trial, treating handwriting expert evidence as being opinion evidence. In service jurisprudence allegation has to be proved on preponderance and not beyond reasonable doubt. But the delinquent employee has to be confronted with the evidence as it is rebuttable."

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In both Ran Vijay Singh and Tulasi Ram Prajapati, the learned Judge found that the candidature of the petitioners could not have been unilaterally annulled without granting them an opportunity to rebut the findings recorded by the expert. These principles are clearly attracted to the facts of the present case. The submission of learned Standing Counsel that the order is not stigmatic and there is no violation of Article 311 of the Constitution do not merit consideration since the principles of natural justice would clearly apply in all situations where a person is visited with serious civil consequences. A removal from the list of selected candidates is a circumstance which necessarily must be recognised as causing serious prejudice and visiting him with civil consequences. Once the name of the petitioner stood included in the select list, his removal from the same on the allegation of impersonation must necessarily have been preceded by the issuance of a notice or at least an opportunity of hearing to the petitioner to establish that the adverse material which was relied upon by the respondents was not liable to be accepted. It is well settled that the opinion of an expert is not conclusive and remains just that, namely, an opinion.

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On an overall conspectus of the aforesaid facts and bearing in mind the decisions rendered in Ran Vijay Singh and Tulasi Ram Prajapati, this Court finds itself unable to sustain the order impugned.

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Accordingly the writ petition is allowed. The impugned order is hereby quashed. The matter shall in consequence stand remitted to the

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respondent No. 3 who shall now be free to take a fresh decision bearing in mind the observations made hereinabove."

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The order passed in Special Appeal Defective No.44 of 2019 is quoted below:-

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"The delay of 40 days in filing the appeal is adequately explained and is, accordingly, condoned.

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Delay Condonation Application No. 1 of 2019 is allowed.

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Heard Sri Rajnish Kumar Rai, learned counsel for the appellant and Sri Siddharth Khare, learned counsel for the respondents.

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The selection of the respondent on the post of Constable (G.D.) in Railway Special Protection Force and Railway Protection Force was annulled by the order dated 15.11.2015 on the ground that he had indulged in impersonation while appearing in the selection process.

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The writ petition of the respondent challenging the aforesaid order has been allowed by the impugned order dated 30.10.2018.

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In challenging the aforesaid order, the submission of counsel for the appellant is that the respondent has not filled up the form in his own hand writing and therefore his candidature deserves to be cancelled.

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This was not the case pleaded and argued before the Writ Court. The controversy before the Writ Court was with regard to the impersonation.

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The appellant on the basis of the report of the "Government Examiner Question Documents" that there was a discrepancy between the hand writing appearing on the answer sheet of the respondent and his signatures as otherwise available on record, annulled the selection of the respondent.

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The learned Single Judge held that as the copy of the aforesaid report which forms the basis of the order and was an adverse material to the respondent was not supplied to him, he was denied proper opportunity to defend himself. Accordingly, holding the order to have been passed in violation of principles of natural justice, in the light of the two decisions rendered in Ran Vijay Singh and others Vs. Union of India and another1 and Tulasi Ram Prajapati Vs. Union of India2 allowed the writ petition and directed the appellant to pass a fresh order.

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In view of the finding that the order cancelling the selection of the respondent was passed in violation of the principles of natural justice as the report which forms the basis of passing the said order was never supplied to the respondent, we are of the opinion that no wrong has been committed by the learned Single Judge in allowing the writ petition.

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The appeal lacks merits and is, accordingly, dismissed."

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In the circumstances, the writ petition is allowed. The impugned order dated 10.07.2015 passed by respondent No.2 is quashed. The matter shall in consequence stand remitted to the respondent No.2/Chairman, Zonal Recruitment Committee/Chief Security Commissioner, Railway Protection Force, Gorakhpur, who shall now be free to take a fresh decision bearing in mind the observations made hereinabove.

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Order Date :- 30.1.2019

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saqlain

Satyendra Tomar v. Union of India and Another

Case brief

What is this about?

What did the court decide?

Satyendra Tomar v. Union of India and Another

Case brief

What is this about?

What did the court decide?

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