OP (CAT) No. 64 of 2016 (Z)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **& THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 18TH DAY OF FEBRUARY 2016/29TH MAGHA, 1937** **OP (CAT).No. 64 of 2016 (Z) ----------------------------** **AGAINST THE ORDER/JUDGMENT IN OA 181/2014 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 09-12-2015** **PETITIONERS:** **-------------** ## **1. SHAMSUDHEEN K M** - **S/O. MOHAMMED P.I, KAMALIYA MANZIL, KAVARATTI ISLAND** **2. NASARUDHEEN P.K,** - **S/O.MOHAMMED P.P, THEKKILALLAM, KAVARATTI ISLAND** **3. NIYASUDEEN T.I** - **S/O. KUNHIKOYA P,THEKKILAILAM,KAVARATTI ISLAND** **4. SAJIDA BEEGUM A.P** - **D/O.KHALEEL P, ATHAMBAPEPURA,KAVARATTI ISLAND** **5. BEEGUM RUSEENA A.P** - **D/O.HAMZA K.P,AYSHAPURA, KAVARATTI ISLAND** **6. NOUSHIDA BEEGUM P** - **S/O. KUNHIKOYA K.P,POOVAMMADA,KAVARATTI ISLAND** **7. SABIRA K.P** - **D/O. NALLA KOYA K,,KAKKINIPURA,KAVARATTI ISLAND** **8. SUNNAHBI P** - **D/O. NALLAKOYA P,PANDARI HOUSE, KAVARATTI ISLAND** **9. SAFEERA B** - **D/O. YAHIYA K.K,BIREKKAL,KAVARATTI ISLAND** **10. ZANEEHATH U.P** - **D/O. KUNNINAMMEL ABDULHIGH KUNNINAMEL,KAVARATTI ISLAND** **11. SHARAFUNNISA BEEGUM M.K** - **D/O. SAYEDALI K.P,KOYILAKAM,KAVARATTI ISLAND** **12. BEEFATHUMMA K** - **D/O. BASHEER T.P,KOONIYAM HOUSE, KAVARATTI ISLAND** **13. SABIRA A.P** - **D/O. ABDUL RAZAK C.P,ALACHAPPADU HOUSE, KAVARATTI ISLAND** **14. JAMEELA B** - **D/O. HASSAINAR B, BEEVIVODA HOUSE, KAVARATTI ISLAND** **OP (CAT).No. 64 of 2016 (Z)** ## **15. HASEENA M.I** **D/O. ALI K, MUKRIYA ILLAM, KAVARATTI ISLAND** **16. ABIDA A.P** **D/O. K.B SAMMIL, ATHAMPAPAPURA, KAVARATTI ISLAND** **17. SHAMEENA K D/O.MOHAMMED A KUNNEL HOUSE, KAVARATTI ISLAND** **18. RAHMATH R.M D/O. SHAHUL HAMEED K.I, RAHMATH MAHAL, KAVARATTI ISLAND** **19. RASEENA M.P** **D/O. KHALID N.P, MALAIPAPADA,KAVARATTIISLAND** ## **20. SUNASA NUBIYA C.P** **D/O. BASHEER K, CHETTUPUZHA, KAVARATTI ISLAND** ## **21. SHAHINA BEEGUM E.P** **D/O. ATTAKOYA N, EDATHINAPURAM HOUSE,KAVARATTI ISLAND** ## **22. FARISHA BEEGUM K** **D/O. MOHAMMED U.P,KUYYALAKAM,KAVARATTI ISLAND** **23. SAJNA P** **D/O. ABDUL HAYYI U.P, SALAHIYA MANZIL, KAVARATTI ISLAND** **24. SHAMEERA A.K** **D/O. KHADER K.P, ASSMKAKADA, KAVARATTI** **25. KADEEJAMMABI T.P** **D/O. KOYAMMA T.P, THELIKEPURA HOUSE, KAVARATTI** **BY ADVS.SRI.K.B.GANGESH SMT.SMITHA CHATHANARAMBATH SMT.ATHIRA A.MENON** **RESPONDENT(S):** - **--------------** **1. THE ADMINITRATOR ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP, KAVARATTI 682 555** **2. DIRECTOR(SERVICES)** **ADMINISTRATION OF UNION TERRITORY OF LAKSHADWEEP,SECRETARIAT, KAVARATTI 682 555** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 18-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **kkj** ## **OP (CAT).No. 64 of 2016 (Z)** ## **PETITIONERS' EXHIBITS** **EXT.P1: TRUE COPY OF COMMON ORDER DATED 09.02.2015 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERAKULAM BENCH IN OA NOS.181/00042/2014 AND 181/000104/2014 EXT.P2: TRUE COPY OF OA NO.181/00042/2014. ANNEXURE A1:TRUE COPY OF THE EMPLOYMENT NOTICE F.NO.12/34/2012SERVICES DATED 18.03.2013** **ANNEXURE A2: TRUE COPY OF CIRCULAR F NO.12/34/2012-SERVICES AND EMPLOYMENT DATED 02.05.2014 ISSUED BY THE 2ND RESPONDENT ANNEXURE A3: TRUE COPY OF NOTICE F.NO.12/34/2012-SERVICES/1723 BOTH DATED 02.05.2014 ISSUED BY THE 2ND RESPONDENT ANNEXURE A4: TRUE COPY RELEVANT PORTION OF THE FINAL LIST OF CANDIDATES FOR THE POST OF LOWER DIVISION CLERK ISSUED BY THE 2ND RESPONDENT ON 02.10.2013. ANNEXURE A5: TRUE COPY OF THE GIST OF ENQUIRY REPORT PUBLISHED IN LAKSHADWEEP TIMES DATED 28.02.2014 EXT.P3: TRUE COPY OF REPLY STATEMENT FILED BY RESPONDENTS 1 AND 2 IN OA 181/00042/2014 EXT.P4: TRUE COPY OF REJOINDER TO EXT P3. EXT.P5: TRUE COPY OF REPLY STATEMENT FILED BY RESPONDENT 1 AND 2 IN OA NO.181/00072/2014 ANNEXURE R1(A): A TRUE COPY OF THE MODIFIED INSTRUCTION ON RECRUITMENT, F NO.12/28/2013- SERVICES DATED 11.12.2013 ANNEXURE R1(B): A TRUE COPY OF THE CIRCULAR F NO.12/34/2012-SERVICE (VOL.II) DATED 28.01.2015 ANNEXURE R1(C): A TRUE COPY OF THE OFFICE ORDER F NO.128/34/2012SERVICE (VOL-II)(2) DATED 27.02.2015 EXHIBIT P6: TRUE COPY OF REJOINDER TO EXT P5 EXT.P7: TRUE COPY OF THE NOTIFICATION F NO.12/35/2015SERVICE DATED 01.10.2015** **// TRUE COPY //** **PA TO JUDGE** **K.SURENDRA MOHAN & P.V.ASHA, JJ. --------------------------------------------O.P.(CAT) No.64 of 2016 ---------------------------------------------Dated this the 18[th] day of February, 2016** ## **J U D G M E N T** ## Surendra Mohan, J. The petitioners before us along with various others had invoked the jurisdiction of the Central Administrative Tribunal (CAT for short) by filing Original Application Nos.181/00042/2014, 181/00072/2014 and 181/000105/2014 challenging the action of the respondents in cancelling annexure A1 notification that forms part of exhibit P2 and issuing a fresh notification annexure A2. As per annexure A1 notification, applications were invited for selection and appointment to twenty posts of Lower Division Clerks in the service of the respondents. The petitioners had submitted applications pursuant to annexure A1 notification. A skill test was also conducted as part of the selection process. However, in the wake of allegations that there was leakage of the question paper, an enquiry was conducted and by annexure A2 dated 02.05.2014, annexure A1 was cancelled. -:2:- ## O.P.(CAT) No.64 of 2016 Thereafter, a fresh notification, annexure A3 of the same date 02.05.2014 was issued inviting applications to 50 posts of Lower Division Clerks. It has been specifically mentioned in annexure A2 that, all the persons who submitted applications pursuant to annexure A1 notification would be permitted to apply for selection and appointment to the posts notified by annexure A3 and that, age relaxation would be granted to the candidates who had become over aged as per annexure A3. The petitioners and others challenged cancellation of annexure A1 notification in the Original Applications filed by them. 2. The contentions of the petitioners were disputed by the respondents. It was contended that, the passage on the basis of which the skill test was conducted had been available on the internet and complaints regarding the said fact was received by the respondents. An enquiry conducted, revealed that the complaint was justified. In the meanwhile, additional vacancies had arisen and the ## -:3:- ## O.P.(CAT) No.64 of 2016 necessity to conduct a written test was also felt by the authorities. It was for the said reason that, annexure A1 notification was cancelled. According to the respondents, they had entrusted the task of conducting the selection to the Lal Bahadur Sasthri Centre for Science and Technology (LBS Centre for short), an independent and experienced agency. However, in spite of the above, there was leakage of question paper. Therefore, annexure A1 was cancelled for the purpose of ensuring that there was fairness in the selection process. 3. The CAT considered the rival contentions found that the allegation regarding the leakage of the question paper was substantiated and for the said reason, found that cancellation of annexure A1 notification was justified. In the above view of the matter, the Original Applications have been dismissed by exhibit P1 order dated 09.12.2015. 4. According to Advocate K.B. Gangesh who appears for the petitioners annexure A5 which is the gist of the ## -:4:- ## O.P.(CAT) No.64 of 2016 enquiry report submitted by the Enquiry Officer to the respondents, does not say that there was a leakage of the question paper as alleged. Therefore, according to the counsel, cancellation of the entire selection process was without any justification whatsoever. Assuming that there was leakage of the question paper, it is contended that it was sufficient for the authorities to have cancelled the skill test alone and conducted a fresh skill test. Instead of that the entire selection process has been cancelled, which was uncalled for. The counsel places reliance on the decision of the Apex Court in **Union of India V. Rajesh P.U.Puthuvalnikathu** [(2003) 7 SCC 785], which has confirmed the decision of the Division Bench of this Court reported in Rajesh v. Union of India [2002(1)KLT 492]. For the above reasons, it is contended that exhibit P1 Order of the CAT is unsustainable and liable to be set aside. 5. Advocate S.Radhakrishnan appears for the respondents. According to the learned counsel, there was a ## -:5:- ## O.P.(CAT) No.64 of 2016 leakage of the question paper and the passage that was given by the LBS Centre for the Skill test was available on the Internet. Many of the candidates had taken advantage of the above situation. An enquiry was ordered to find out whether there was complicity on the part of the staff of the respondents in the leakage of the question paper. As per the report annexure A5, it has been found that none of the staff were involved. In the meanwhile, other vacancies had also arisen, taking the number of vacancies to 50. It was further felt that, a written test was also necessary to be conducted as part of the selection process. It was taking into account all the above factors that a decision to cancel annexure A1 notification and to issue a fresh notification was taken. The respondents had taken care to ensure that the persons who had applied pursuant to annexure A1 notification were not prejudiced in any manner, by providing that they would be permitted to take part in the selection process by granting age relaxation. Accordingly, ## -:6:- ## O.P.(CAT) No.64 of 2016 many of the applicants had participated in the selection process and have been selected and appointed. The selection process pursuant to annexure A3 is already completed, a list of successful candidates has been published and a number of persons have also been appointed from the said list. The impugned action of the respondents was intended only to ensure that there was fairness in the selection process. Therefore, it is contended that there are absolutely no grounds to interfere with exhibit P1. 6. This Original Petition comes up before us for admission. We have heard the respective counsel at length and considered the contentions advanced. In the first place, we find that, absolutely no prejudice has been caused to the petitioners by the cancellation of annexure A1 notification by annexure A3. It is true that, the petitioners were all applicants pursuant to annexure A1 notification. However, annexureA2 specifically provides that persons ## -:7:- ## O.P.(CAT) No.64 of 2016 who had applied pursuant to annexure A1 notification would be permitted to take part in the selection process pursuant to annexure A3 by granting them suitable age relaxation for the purpose. We find that, the petitioners have no case regarding violation of the assurance contained in annexure A2. On the contrary, the counsel for the respondents submits that many of the applicants pursuant to annexure A1 had participated in the selection process pursuant to annexure A3 and have been selected and appointed to the notified post. In view of the above, the objections raised by the petitioners lack substance. Apart from the above, it has been found by the CAT that, though there was no involvement on the part of the officials of the respondents in the leakage of the question paper, the alleged discrepancy had in fact occurred. Though it is true that, the defect could have been remedied by setting aside the skill test alone, that would have left at least a sizable the section of the public with an impression ## -:8:- ## O.P.(CAT) No.64 of 2016 that the authorities were pursuing the selection process despite the leakage of the question papers. In view of the above, in order to set at rest objections from any quarter, it was only appropriate that the entire process was cancelled and a selection conducted afresh. Since in the process of selection, care was taken to ensure that applicants pursuant to annexure A1 notification were not prejudiced in any manner by permitting them to take part in the fresh selection that was notified, we are not satisfied that there has been any illegality in the procedure that was adopted. A perusal of the judgment in **Union of India V. Rajesh P.U.Puthuvalnikathu** (Supra) on which reliance has been placed shows that the issue in the said case was regarding the cancellation of a notification by the Central Bureau of Investigation (CBI for short). In the said case, the cancellation was for the reason that, there was some discrepancy in valuing the answer scripts. The said situation cannot be equated with the situation in the ## -:9:- ## O.P.(CAT) No.64 of 2016 present case where the question paper itself was alleged to have been leaked out. We have already found that absolutely no prejudice has been caused to the petitioners by the impugned action. Therefore, we find no grounds to admit this Original Petition or to grant any of the reliefs sought for. For the foregoing reasons, this Original Petition is dismissed. Sd/- **K.SURENDRA MOHAN JUDGE** Sd/- **P.V.ASHA JUDGE** kkj