Full Text
HIGH COURT OF DELHI
W.P.(C) 12544/2023, CM APPL. 49479/2023
GOURAV .....Petitioner
Through: Mr. Anuj Aggarwal, Ms. Divya Aggarwal and Mr. Pradeep Kumar, Advs.
Through: Ms. Manisha Agrawal Narain, CGSC
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
JUDGMENT
13.12.2024 C. HARI SHANKAR, J.
1. The petitioner Gourav was, to an extent, the successful litigant before the Central Administrative Tribunal[1] in OA 2211/2022, instituted by him. Like Oliver Twist, he wants more.
2. Having heard the matter and perused the record, we feel that he is entitled to what he claims.
3. A brief recital of the controversy.
4. The petitioner applied, as a candidate belonging to the "the Tribunal" hereinafter Signing Date:03.01.2025 19:35 Economically Weaker Section[2] of society, for appointment to the post of Multi-Tasking Staff (Non-Technical)3, consequent to the notification issued by the respondents in 2019. The selection was to be by examination, to be conducted in two tiers by the Staff Selection Commission[4]. Merit was determined on the basis of the performance in Tier I, but the candidate was required to qualify Tier II in order to be eligible for appointment. The petitioner scored 88.95 marks in Tier I and 32 marks in Tier II. In the select list, which was announced in May 2021, the petitioner was at S. No. 3137. He was allocated the Delhi State. No actual appointment order was, however, issued, on the ground that his candidature/dossier was under scrutiny.
5. Following this, on 16 September 2021, the respondents issued a Memorandum to the petitioner, requiring him to provide samples of his handwriting, for verification. The petitioner did so. Thereafter, on 14 February 2022, the respondents informed the petitioner that his dossiers had been forwarded to the Central Forensic Science Laboratory[5] for expert opinion regarding his handwriting. The opinion, it was noted, had been received and was under examination. In the meanwhile, other candidates, who had participated in the examination with the petitioner, were appointed as MTS (NT).
6. As there was no further communication from the respondents, the petitioner approached the Tribunal by way of OA 1707/2022.
7. During the pendency of the said Original Application, the EWS MTS (NT) SSC Signing candidature of the petitioner was cancelled by the respondents vide order dated 25 July 2022. The order further debarred the petitioner from participating in any examination to be held by the SSC for a period of 7 years, from 9 August 2019 to 8 August 2026. This was done on the basis of the CFSL Report, which opined that the signature entered by the petitioner while undertaking the examination at various stages did not tally with his sample signature, as provided by him. The respondents, therefore, alleged that the petitioner had resorted to impersonation.
8. Aggrieved thereby, the petitioner instituted a second Original Application, being OA 2211/2022, in which the presently impugned judgement has been rendered by the Tribunal on 12 July 2023. The petitioner sought, in his OA, quashing and setting aside of the order dated 25 July 2022, whereby his candidature was cancelled and consideration of his case for appointment on the basis of his merit in the examination. Consequential reliefs were also sought.
9. The Tribunal has, in the impugned judgement dated 12 July 2023, limited its examination to the aspect of debarment of the petitioner from participating in any examination to be held by the SSC for 7 years. Reliance has been placed, by the Tribunal, on the judgements of the Supreme Court in UMC Technologies (P) Ltd v FCI[6] and Isolators and Isolators v Madhya Pradesh Madhya Kshetra Vidyut Vitran Co Ltd[7], to hold and conclude thus: ―5.[3] Drawing strength from above analogy and the ratio laid down by the decisions of Hon‘ble Apex Court (supra), the
Signing respondents have not issued any show cause notice as to why the punishment of debarment of 7 years (w.e.f. 09.08.2019) should not be imposed upon the applicant. The principles of natural justice in administrative sphere are of paramount consideration. The exercise of such powers cannot be arbitrary or unreasonable and must take into account the doctrine of proportionality and fair play. Hence, prima facie the decision to impose harsh punishment also appears to be disproportionate and excessive, i.e., for the period of 7 years.
6. Conclusion: 6.[1] In view of the above, the impugned order dated 25.07.2022 is quashed and set aside. The applicant has already undergone a substantial period of punishment w.e.f. 09.08.2019 till 2023, i.e. a period of almost 4 years till now. It is made clear that the aforesaid impugned order dated 25.07.2022 shall not come in the way of the applicant for future employment. Accordingly, the OA is disposed of.‖
10. The impugned judgement is peculiar. The order dated 25 July 2022 incorporated two decisions. It cancelled the petitioner‘s candidature and further debarred him from participating in any exam conducted by the SSC for 7 years. The Tribunal has, in para 6.[1] of the impugned judgement, quashed and set aside the order dated 25 July
2022. The setting aside is in whole, not in part. Unfortunately, however, that discussion which precedes para-6.[1] is entirely devoted to the decision, in the order dated 25 July 2022, to debar the petitioner from undertaking any examination conducted by the SSC for 7 years. There is no discussion, by the Tribunal, of the merits of the order dated 25 July 2022, insofar as it cancelled the candidature of the petitioner in the examination, or the sustainability of the said decision.
11. The respondent has not challenged the impugned judgement. We could, therefore, have, legitimately, let matters rest with the Signing observation that, as the Tribunal, in para 6.[1] of the impugned judgement, set aside, without any caveat or restraint, the order dated 25 July 2022, which not only debarred the petitioner from undertaking any examination conducted by the SSC for 7 years, but also cancelled his candidature for the examination which he had undertaken, and the respondent has not chosen to challenge the judgement, the entire order dated 25 July 2022 stands set aside by the Tribunal, and that decision stands accepted by the respondent.
12. Such an order, were we to pass it, would, in our view, have been correct in law. It may not, however, have resulted in substantial justice to both parties, as there is, in fact, in the impugned judgement, no discussion by the Tribunal or the aspect of cancellation of the petitioner‘s candidature. The discussion, in para 5.[3] of the impugned judgement – which is the only paragraph containing independent observations by the Tribunal – is wholly devoted to examining whether the decision of 7 years‘ debarment could have been passed without complying with the principles of natural justice. The Tribunal has held in the negative and has, consequently, observed that the punishment of debarment, besides being disproportionate, was also vitiated for non-compliance with the principles of natural justice.
13. These findings have been accepted by the respondents, who have not chosen to challenge them. Even otherwise, they are clearly unexceptionable. Debarment of the petitioner from appearing in any examination of the SSC for 7 years, without implicit compliance with the principles of natural justice, including audi alteram partem, was clearly impermissible in law. Signing
14. The petitioner is, however, justifiably aggrieved by the fact that, though, facially, the impugned judgement sets aside the order dated 25 July 2022, there is in fact no finding returned, on merits, regarding the challenge, by the petitioner, to the cancellation of his candidature. It is for this reason that the petitioner has instituted the present writ petition before this Court, challenging, in part, the impugned judgement dated 12 July 2023. That the challenge is limited is manifest from the prayer clause in the writ petition, which reads as under: ―PRAYER In the premise aforesaid, the petitioner most humbly pray is that this Hon‘ble Court be pleased to:-
(i) issue an appropriate writ, order or direction thereby setting aside the impugned Order dated 12.07.2023, passed by the learned Central Administrative Tribunal, Principal Bench, New Delhi, in Original Application [OA No 2211 of 2022] entitled ―Gourav Vs Union of India & Ors‖, to the extent it has failed to direct the respondents to consider the candidature of the petitioner for appointment on the post of Multi-Tasking (Non-Technical) Staff Examination, 2019;
(ii) Issue an appropriate writ, order or direction thereby declaring that the Order dated 25.07.2022, passed by Staff Selection Commission, is illegal, or unjustified, and unconstitutional & void ab initio and petitioner is entitled to all consequential benefits thereof;
(iii) issue an appropriate writ, order or direction thereby directing the respondent‘s to consider the candidature of the petitioner for appointment of the post of Multi-Tasking (Non-Technical) Staff, and accordingly, appoint the petitioner on the post of Multi-Tasking (Non-Technical) Staff with all consequential benefits (monetary as well as non-monetary benefits) thereof including seniority, full back wages, etc.;
(iv) allow the present writ petition with costs in favour of the petitioner; and
(v) pass any such other of further orders as this Hon‘ble
15. We have heard Mr. Anuj Aggarwal, learned Counsel for the petitioner and Ms Manisha Agrawal Narain, learned Central Government Standing Counsel, at length.
16. Ms Narain submits that the petitioner is not entitled to any relief, in view of the report of the CFSL confirming mismatch between the signature of the petitioner as contained on the examination documents and the specimen signature provided by him. She submits that, having noted the contention of the Counsel appearing for the Union of India before the Tribunal that Courts cannot interfere with the findings of expert bodies such as the CFSL, the Tribunal was clearly in error even in granting part relief to the petitioner.
17. Having said that, Ms Narain is characteristically candid in her admission that the respondents have not chosen to challenge the impugned judgement.
18. Mr. Aggarwal, on the other hand, submits that the findings of the Tribunal regarding non-compliance with the principles of natural justice applied as much to the cancellation of the petitioner‘s candidature as to the decision to debar him for 7 years. The Tribunal was, therefore, in his submission, clearly in error in restricting the Signing relief granted to his client to quashing of the decision to debar him.
19. Mr. Agarwal also places reliance on the judgements of a coordinate Division Bench of this Court in UOI v Sanjeev Kumar[8] and UOI v Sukhvinder[9] in which, in his submission, in similar circumstances, this Court upheld the decision of the Tribunal to grant relief to the candidates involved therein. Analysis
20. Having heard Mr. Anuj Aggarwal, learned Counsel for the petitioner and Ms. Manisha Agrawal Narain, learned CGSC for the respondents, and having seen the judgment of a Coordinate Bench of this Court in Sanjeev Kumar and Sukhvinder, we are of the opinion that the writ petition must succeed.
21. Cancellation of the candidature of candidates who have undertaken an examination may be of two categories and, depending on the category in which the decision falls, strict compliance with the principles of natural justice may, or may not, be required. Where it is a case of large scale fraud, or of large scale resort to unfair means during an examination, necessitating cancellation of the entire examination, or of the examination pertaining to a particular examination centre, and it is impractical or nearly impossible to issue individual show cause notices to all the candidates who may have undertaken the said examination, Courts have not insisted on grant of individual opportunity to each candidate, whose candidature is 2024 SCC OnLine Del 4902 Judgement dated 27 August 2024 in WP (C) 13635/2023 Signing cancelled, to be issued a show cause notice or given an individual opportunity to explain her, or his, case. In such a case, however, as the entire examination is cancelled, without any individual apportionment, or even ascertainment, of responsibility, the candidates have to be given an opportunity to rewrite the examination as, else, possibly innocent candidates would be deprived of their chance to undertake the examination for no fault of their own.
22. Where, however, the cancellation of candidature is only in respect of a fixed or select number of candidates, who are suspected or alleged to have resorted to unfair means, strict compliance with the principles of natural justice, which would include an opportunity to the said candidates to explain the allegation against them, is imperative and non-negotiable. Where, as in the present case, the cancellation is solely on the basis of a handwriting report of the CFSL, the necessity of complying with this requirement stands augmented. We have had opportunity to deal with this aspect in our recent decision in UOI v Jagmohan10 in which we inter alia emphasised the extremely weak nature of handwriting comparison evidence, as proof of impersonation: ―17. It is, further, well settled in evidence that handwriting comparison constitutes evidence of an extremely weak character, and cannot, in any event, be treated as conclusive. We may reproduce, in this context, the following passages from the judgments of the Supreme Court in S.P.S. Rathore v CBI11 and Padum Kumar v State of UP12: From S.P.S. Rathore:
Signing ‗47. With regard to the contention of the learned Senior Counsel for the appellant-accused that the signatures of Ms. Ruchika on the memorandum were forged though she signed the same in front of Shri. Anand Prakash, Shri S.C. Girhotra, Ms. Aradhana and Mrs. Madhu Prakash and they have admitted the same, we are of the opinion that expert evidence as to handwriting is only opinion evidence and it can never be conclusive. Acting on the evidence of any expert, it is usually to see if that evidence is corroborated either by clear, direct or circumstantial evidence. The sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. A court is competent to compare the disputed writing of a person with others which are admitted or proved to be his writings. It may not be safe for a court to record a finding about a person's writing in a certain document merely on the basis of expert comparison, but a court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of a handwriting expert is also relevant in view of Section 45 of the Evidence Act, but that too is not conclusive. It has also been held by this Court in a catena of cases that the sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. It follows that it is not essential that the handwriting expert must be examined in a case to prove or disprove the disputed writing. It is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence.
49. In Bhagwan Kaur v Maharaj Krishan Sharma13 this Court held as under: ―26. … It is no doubt true that the prosecution led evidence of handwriting expert to show the similarity of handwriting between (PW 1/A) and other admitted writings of the deceased, but in this respect, we are of the opinion that in view of the main essential features of the case, not much value can be attached to the expert evidence. The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The
Signing courts should, therefore, be wary to give too much weight to the evidence of handwriting expert. In Kishore Chandra Singh Deo v Babu Ganesh Prasad Bhagat14 this Court observed that conclusions based upon mere comparison of handwriting must at best be indecisive and yield to the positive evidence in the case.‖
50. It is thus clear that uncorroborated evidence of a handwriting expert is an extremely weak type of evidence and the same should not be relied upon either for the conviction or for acquittal. The courts, should, therefore, be wary to give too much weight to the evidence of handwriting expert. It can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence.‖ (Emphasis supplied) From Padum Kumar ―14. The learned counsel for the appellant has submitted that without independent and reliable corroboration, the opinion of the handwriting experts cannot be relied upon to base the conviction. In support of his contention, the learned counsel for the appellant has placed reliance upon S. Gopal Reddy v State of A.P.15, wherein the Supreme Court held as under: ‗28. Thus, the evidence of PW 3 is not definite and cannot be said to be of a clinching nature to connect the appellant with the disputed letters. The evidence of an expert is a rather weak type of evidence and the courts do not generally consider it as offering “conclusive” proof and therefore safe to rely upon the same without seeking independent and reliable corroboration. In Magan Bihari Lal v State of Punjab16, while dealing with the evidence of a handwriting expert, this Court opined: ―7. … we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a
Signing conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v State of U.P.17, that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad Misra v Mohd. Isa18 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v Subodh Kumar Banerjee19 where it was pointed out by this Court that an expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P.20 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial.‘‖
15. Of course, it is not safe to base the conviction solely on the evidence of the handwriting expert. As held by the Supreme Court in Magan Bihari Lal v. State of Punjab that: ―7. … expert opinion must always be received with great caution … it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law.‖
16. It is fairly well settled that before acting upon the opinion of the handwriting expert, prudence requires that the court must see that such evidence is corroborated by other evidence either direct AIR 1957 SC 381 AIR 1963 SC 1728 AIR 1964 SC 529 AIR 1967 SC 1326 Signing or circumstantial evidence. In Murari Lal v. State of M.P.21, the Supreme Court held as under: ―4. … True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses — the quality of credibility or incredibility being one which an expert shares with all other witnesses — but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of fingerprints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty ―is to furnish the Judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the Judge to form his own independent judgment by the application of these criteria to the facts proved in evidence‖ [Vide Lord President Cooper in Davis v. Edinburgh Magistrate22, quoted by Professor Cross in his evidence]. *****
6. Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person ―specially skilled‖ ―in questions as to identity of handwriting‖ is expressly made a relevant fact. … So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a
1953 SC 34 Signing particular case, a court may require corroboration of a varying degree. There can be no hard-and-fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.‖
18. Keeping in view the above legal position, we find no error in the impugned judgment of the Tribunal, as the petitioners have, in their arsenal, the handwriting opinion of the CFSL and no other evidence, and the respondents were, moreover, not provided with the documents which were found, even by the IO, to be necessary for their defence.‖
23. We also find the reliance, by Mr. Agarwal, on the decisions of the Coordinate Bench in Sanjeev Kumar and Sukhvinder to be apt.
24. In Sanjeev Kumar, too, the cancellation of the respondent Sanjeev Kumar‘s candidature was based on a FSL report, and alleged handwriting mismatch. A copy of the report was provided to the candidate, but no detailed inquiry was held, in which the candidate could have been afforded an opportunity to cross-examine the authors of the report. In these circumstances, this Court held as under: ―14. As reflected from the said termination orders, the petitioners, on the basis of their understanding of the order of the Hon'ble Supreme Court in the case of Monu Tomar (supra)23, provided copies of the relevant documents to the respondents, who submitted their detailed representations, challenging extensively the forensic reports of FSL, Chandigarh and claimed that they could demolish the same if a detailed enquiry was held. Despite that, the petitioners in their wisdom opted not to test the veracity of those forensic reports through a departmental enquiry granting an opportunity to the respondents to cross examine the authors of those FSL report, and thereby they deprived the respondents a fair opportunity to be heard.
15. It is trite that expert evidence is a weak piece of evidence. In the present case, except the said expert evidence (which, strictly Monu Tomar v UOI, MANU/SCOR/26052/2017 Signing speaking, is not even an evidence because the forensic reports were not got proved through authors thereof by calling them into the witness box and giving opportunity to the respondents to cross examine them) there is no other evidence at all to show that the respondents resorted to any unfair means in the recruitment exam.
16. During final arguments, we asked the learned counsel for petitioners as to whether any criminal complaint followed by police investigation was got lodged and conducted, going by their allegation of impersonation. It was submitted on behalf of petitioners that no police complaint was lodged by any of the authorities. But the reason for their having not done so remains unanswered. And that raises doubts about the veracity of the case set up by the petitioners to terminate services of the present respondents and many more. Thus, the FSL report, which is the solitary evidence relied upon by the petitioners was not tested in accordance with law through even investigation by police, what to say of a court conducting criminal trial.‖ (Emphasis in original)
25. Sanjeev Kumar was followed in Sukhvinder in which, too, the cancellation of the candidature was based on an unproved FSL report, which alleged the signature on the examination documents to be different from the specimen signature of the candidates. This Court, in the circumstances, held as under: ―11. At this stage, learned counsel appearing on behalf of respondent has pointed out that in a similar petition being W.P.(C) 15248/2022 titled as Union of India & Ors. Vs. Sanjeev Kumar & Anr. vide order dated 18.07.2024 this Court has upheld the order passed by the learned Tribunal.
12. Learned senior panel counsel appearing on behalf of petitioners has disputed the aforesaid submissions by stating that in the present case, though on the OMR sheet roll number is written, however, the same is not bubbled, due to which services of respondent have been terminated.
13. In the present case also, as per FSL report petitioner's signature on the OMR sheet did not match with the specimen signature.
14. Relevantly, in W.P.(C) 15248/2022 this Court upheld the judgment dated 10.03.2022 passed by the learned Tribunal in O.A. Signing No.2756/2019, whereby the respondents therein, who were successfully recruited to the post of Postal Assistant (PA)/Sorting Assistant (SA) in the Department of Posts and whose services were terminated on the charge that their signatures on their respective OMR sheets did not tally with those on the registration forms; were directed to be reinstated observing that without conducting any departmental enquiry and based upon unproved FSL report, termination order cannot be sustained.
15. It is not the case of petitioners that there is any dispute with regard to identification of the respondent. This Court is of the opinion that the case of respondent is on similar footing as decision of this Court in W.P.(C) 15248/2022.
16. The present petition and pending application, if any, are accordingly dismissed, with direction to the petitioners to reinstate respondent and grant consequential benefits within four weeks.‖
26. The decision to cancel the petitioner‘s candidature, therefore, stands vitiated on two grounds, independent of each other but each fatal in itself. The first is that, solely on the basis of the uncorroborated evidence of the signature comparison report of the CFSL, no positive finding of impersonation or resort to unfair means could have been returned by the respondents. The second is that the petitioner‘s candidature could not have been cancelled without compliance with the principles of natural justice, which would include audi alteram partem.
27. The petitioner‘s prayer for quashing of the cancellation of his candidature, as made before the Tribunal, therefore, deserved to be allowed.
28. Accordingly, we modify the order of the Tribunal by also allowing the OA filed by the petitioner to the extent it challenged the cancellation of his candidature. The petitioner would be entitled to be Signing considered for appointment to the post of MTS (NT), on merit, as per his position in the merit list, and be appointed, if so found suitable, from the date of grant of appointment to others who had participated with him in the examination and secured appointment. The petitioner would also be entitled to consequential relief of seniority and counting of service, but not to back wages.
29. The writ petition stands allowed in the aforesaid terms.
C. HARI SHANKAR, J.