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Judgment
O R D E R
BY HON’BLE MR JUSTICE OM PRAKASH -VII, MEMBER (J)
Heard Sri Rahul Upadhyaya, learned counsel for the applicant and Sri K.K. Ojha, learned counsel for the respondents.
The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:-
“(i)That by means of suitable order or direction quashing the result dated 16.12.2015 of the applicant and order dated 31.3.2016 passed by respondent No. 3.
(ii)That by means of suitable order or direction command the respondents authorities to appoint the applicant as a Group D employee under them and to pay his regular monthly salary every month”.
Learned counsel for the applicant submitted that the case of the applicant is similar to the applicants of OA No.150/2016 (Bhupendra Chaurasiya and others vs. UOI & Ors.) decided on 04.01.2019, applicant of OA No. 330/1112/2016 (Dharamjeet Kumar Vs. UOI and Ors) decided on 01.09.2016 and applicant of OA No. 330/01438/2015 (Ravant Raj Nayak Vs. Union of India and others) decided on 03.01.2023. He has further submitted that the applicant will be satisfied if similar order is given in the instant OA as well.
Learned counsel for the respondents has opposed the claim of the applicants and stated that during the document verification, the handwriting/thumb impression of the applicant did not match with the handwriting/thumb impression obtained during the written and PET examination. Learned counsel has filed written submission in which he has relied upon the following judgments:-
“(i)Technical Education Vs. Surindra Kumar Dhawan reported in 2009 (11) SCC 726.
(ii)Film Festivals Vs. Gaurava Ashwini Jain reported in 2001 (4) SCC 757.
(iii)S.S. Balu Vs. State of Kerala reported in (2009) 2 SCC 797.
(iv)Secretary, All India Pre-Medical/Pre Dental Examination, CBSE and others Vs. Khushboo Srivastava and others reported in 2011 (4) ESC (S) 637.
(v)Sanchit Bansal Vs. Joint Admission Board 2012 ESC (SC) pages 8 and 19.
(vi)Jitendra Singh Vs. State of UP 2012 (8) SCC 748”.
We have perused the impugned order dated 31.03.2016 (Annexure A-2), wherein it has been mentioned that handwriting/thumb impression of the applicant during document verification did not match with the handwriting/thumb impression obtained during written and PET examination and the Authority concerned presumed that someone else had appeared in the Written and PET examinations impersonating the applicant.
We have gone through the order dated 04.01.2019 passed in OA No.150/2016, order dated 01.09.2016 in OA No. 330/1112/2016, and the order dated 03.01.2023 in OA No. 330/1438/2015. In the aforesaid OAs, it was alleged that the thumb impression of the applicant did not match with the written and PET examination and it was held that someone else had appeared in their places impersonating their candidature. Considering the reply to the said show cause notice, the respondents had debarred him from appearing in all RRC (Railway Recruitment Cell)/RRB(Railway Recruitment Board) examinations in appointment in Railway for lifetime. In both the OAs respondents were directed to re-test the thumb impression as well as the signatures of the applicant by another laboratory and by another handwriting expert, if the case of impersonation was not established, the applicant was to be given appointment, as the respondents had already selected him. It was also directed that till the above-said process of settling the issue of impersonation is completed by the respondents, the applicant shall not be debarred from appearing in the examination conducted by the RRBs/RRCs.
We have perused the order dated 03.01.2023 passed by this Tribunal in OA No. 1438/2015. In para 7 of the aforesaid order, learned counsel for the applicant has referred a judgment of Hon’ble Allahabad High Court in the case of Ran Vijay Singh and 34 others vs. Union of India and others decided on 16th April, 2018 in Writ Petition A No.2813 of 2017 and other connected Writ Petitions. In para 27 of the aforesaid judgment, the Hon’ble High Court has held as under:-
“27.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 O.A. No.1438/2015 Page 4 of 5 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.”
Recently in the case of Vijay Pal and 22 others Vs. Union of India and 3 others in Writ A No. 21096 of 2018 decided on 16.5.2023, the Hon’ble Allahabad High Court has held as under:-
“30.The opinion of the expert was required to have been viewed and considered with other materials available on record. The learned Tribunal has discarded the theory of impersonation setup by the respondent Railways, then in that event, mismatch of handwriting/thumb impression of the petitioners becomes unsustainable, unless supported by any other material or evidence that petitioners have not appeared in the examination or have not filled the application form in their handwriting.
31.The respondent-Railways, in their counter affidavit, have not denied that at all stages of the examination, i.e., Written Test and P.E.T., thumb impression and signatures of the candidates was taken and the entire process was video-graphed. In this backdrop, it cannot be said that though the petitioners had appeared for the examination, yet at the same time, there was mismatch in handwriting/thumb impression.
32.It is not the case of the respondents that the petitioners, herein, had not carried the relevant documents, including, identity card to the examination centre or had not participated in the P.E.T./Medical Examination.
33.In the circumstances, it cannot be said in absence of any other material available with the Railways, that it is a case of mismatch in handwriting/thumb impression. The inference of the Railways is based on an opinion without being supported by any other material, i.e., the petitioners had not appeared at different stages of the selection process.
34.In service jurisprudence, though Evidence Act is not applicable, the charge is not required to be proved beyond reasonable doubt, but on the principle of preponderance of probability, based on some material evidence against the petitioners. It is not a case of disciplinary proceedings, neither, it is a case set up by the Railways, that there was large scale irregularities in the examination process, only few candidates have been picked-up and their selections cancelled merely on an opinion obtained behind the back of the petitioners without confronting the petitioners with the incriminating material.
35.The respondent’s action otherwise is not inconformity with the principles of natural justice, accordingly, the impugned order dated 1 May 2018, being stigmatic cannot be sustained.
36.Accordingly, the writ petition is allowed. Respondents are directed to appoint the petitioners on Group-D post forthwith.
37.It is clarified that no other ground or point was pressed by the counsels for the respective parties”.
In view of the observations made by the Hon’ble Allahabad High Court in the case Vijay Pal (supra) that the opinion of the expert was required to have been viewed and considered with other materials available on record. The learned Tribunal had discarded the theory of impersonation setup by the respondent Railways, then in that event, mismatch of handwriting/thumb impression of the petitioners became unsustainable, because it was not supported by any other material or evidence that petitioners have not appeared in the examination or have not filled the application form in their handwriting. in the instant case, the applicant has also cleared the written and PET examination but his candidature has been rejected on the ground of impersonation, hence, we are of the opinion that the facts of the instant OA are identical to the facts of aforesaid OAs (referred to above) and also judgment of Hon’ble High Court in the case of Vijay Pal (supra) as well as Ran Vijay Singh (supra), therefore, the OA is liable to be allowed..
Accordingly, the instant OA is allowed and impugned order dated 31.3.2016 is quashed. Respondents are directed to re-test the thumb impression as well as the signature of applicant by another laboratory and by another handwriting expert, if the case of impersonation is not established, the applicant will be given appointment, as he had already been selected by the respondents. This exercise shall be completed within a period of six months from the date of receipt of the certified copy of this order. During the said process of settling the issue of impersonation, the applicant shall not be debarred from appearing in the examination conducted by the RRBs/RRCs. No costs. All associated MAs stand disposed of.