Safeer Karim vs Union Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY ,THE 21ST DAY OF FEBRUARY 2019 / 2ND PHALGUNA, 1940** ## **WP(C).No. 34095 of 2018** ## **PETITIONER/S:** **SAFEER KARIM AGED 30 YEARS S/O K A KAREEM, RESIDING AT KOLLOM PARAMBIL HOUSE, KUNNUKARA, ALWAYE, ERNAKULAM-683524, KERALA STATE** **BY ADVS. SRI.T.RAMPRASAD UNNI SMT.R.S.ASWINI SANKAR SRI.G.RENJITH SRI.S.M.PRASANTH SRI.T.H.ARAVIND** ## **RESPONDENT/S:** **THE UNION PUBLIC SERVICE COMMISSION DHOLPUR HOUSE, SHAJAHAN ROAD, NEW DELHI-110069, REPRESENTED BY ITS UNDER SECRETARY** **BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL, SC UPSC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 34095 of 2018** 2 ## **J U D G M E N T** A candidate, who submitted application for appearing in the Civil Services Examination, 2017 conducted by the UPSC, filed this writ petition challenging Ext.P2 order issued by the UPSC debarring him from appearing in all its examinations and selection for a period of 10 years with effect from 22.11.2017. 2. Ext.P2 order was issued after issuing Ext.P1 show cause notice against the proposal to take action under Rule 14 of the Rules for Civil Services Examination Rules 2017. It was stated therein that First Information Report No.1646/17 dated 30.10.2017 has been lodged by the Supervisor of the examination held in the Presidency Girls' Higher Secondary School, Egmore, Chennai at Egmore Police Station stating that unauthorised articles such as cellphone, typed note and certain electronic **WP(C).No. 34095 of 2018** 3 devices were confiscated from the petitioner's possession and handed over to the police authorities on 30.10.2017 in the forenoon session. It was stated that in the undertaking/admission statement to the venue supervisor, he had acknowledged that he had carried cellular/mobile phone as specified therein to the examination on 30.10.2017. It was further alleged that he had infringed rule 14 of the Rules for Civil Services Examination 2017 on the following grounds: _1. using unfair means during the examination._ _2. Being in possession of or using any mobile phone, pager or any electronic equipment or device or any other equipment capable of being used as a communication device during the examination._ _3. Violating any of the instructions issued to candidates along with their admission certificates permitting them to take the examination._ _4. Attempting to commit or, as the case may be, abetting the Commission of all or any of the acts specified in the foregoing clauses._ ## 3. According to the petitioner, about 50 minutes prior to the examination mobile phone of the petitioner along with other materials were confiscated from his possession. The case of the petitioner as stated in paragraph 2 of the writ **WP(C).No. 34095 of 2018** 4 ## petition is as follows: _“The petitioner appeared for the Civil Services (Main) Examination, 2017 in the Presidency Girls’ Higher Secondary School, Egmore, Chennai, the examination being conducted by the UPSC. About 15 minutes prior to the examination the Mobile phone of the petitioner along with certain other materials were confiscated from the possession of the petitioner. It was perfectly permissible for any candidate to refresh his memory of the answers through Mobile phone after duly recording in it. The use of electronic device prior to the examination is not barred. However, when the petitioner was about to enter the examination hall, the Police found that the petitioner was carrying a Mobile phone, which admittedly prior to the commencement of the examination^l/as seized on the 30th of October, 2107.”_ Therefore even before he entered the examination hall and prior to the commencement of the examination mobile phone as well as the electronic devices were seized from him. According to the petitioner, those devices would not help him in answering the questions and he has not practised any unfair means or committed any violation of rules relating to holding of examination. It is also stated that using of those devices prior to the commencement of the examination is not forbidden or prohibited as every candidate is entitled to refresh his memory through electronic device. 4. Respondents have raised a preliminary **WP(C).No. 34095 of 2018** 5 objection as to the maintainability of the writ petition on the ground that the issue involved is a service matter and therefore it will lie only before the Central Administrative Tribunal (CAT). Union Public Service Commission (UPSC) is a constitutional body established under Article 315 to 323 of part XIV, Chapter II of the Constitution of India. The Commission holds various examinations for appointment to the services of the Union, including Civil Service Examination, for recruitment to IAS, IFS, IPS and various other Central Services in Group 'A' and Group 'B'. The Civil Services Examination is held in accordance with the rules framed and notified by the Govt. of India ie. the Dept. Of Personnel and Training. The prayer in the writ petition is as against the orders issued by the UPSC debarring the petitioner from appearing in the examination and seeking a direction to allow him to participate in the Civil Services Examination being **WP(C).No. 34095 of 2018** 6 conducted by UPSC. Pointing out the provisions contained in Section 3(q), 14 and 15 of the Administrative Tribunals Act, 1985 as well as Article 323A of the Constitution of India it is stated that the matter squarely comes within the jurisdiction of the Administrative Tribunals Act. 5. Sri.K.Ramkumar, learned Senior Counsel appearing for the petitioner points out that participation of a candidate in an examination is not a service matter and at any rate it will not come within the purview of the Administrative Tribunals Act, in respect of the incident which occurred even before the examination started. The learned Senior Counsel pointed out that the conditions of service under Article 309 will not include matters prior to recruitment or prior to the appointment. 6. The learned Senior Counsel relied on the judgments of this Court in OP No.16063/1993, **WP(C).No. 34095 of 2018** 7 judgments of the Apex Court in **State of Madhya Pradesh and others vs. Shardul Singh** [1970 (1) SCC 108], judgment dated 18.04.1963 of the Gujarat High Court in Special Civil Appln.No.989/1960 etc and argued that the remedy available for the petitioner is only before this Court under Article 226 of the Constitution of India. The learned counsel also pointed out that rules under which petitioner has been debarred are not framed under Article 309 and any action taken under those rules cannot come within the purview of the Administrative Tribunals Act. 7. On the other hand Sri.Thomas Mathew Nellimootil, the learned Standing Counsel for the UPSC, relying on the judgments of the Allahabad High Court in **Dhirendra Pratap Singh vs. Union Public Service Commission, New Delhi** [2002 (3) AWC 2050], **Bhagwan Ram Versus Regional Director, Staff Selection Commission, Allahabad** [CDJ 1999 All HC **WP(C).No. 34095 of 2018** 8 1090], judgment of the Full Bench of the Madras High Court in **P.Gokul Kaleeswaram vs. Union Public Service Commission** in WP.No.2067/2018, argued that all matters relating to/incidental to recruitment are matters relating to service, which exclusively come within the jurisdiction of Central Administrative Tribunal (CAT). 8. Having heard the contentions on either side it is necessary to examine the contentions with reference to the provisions in the Administrative Tribunals Act, 1985 and its constitution. 9. Article 323 A of the Constitution of India reads as follows: “323-A. _Administrative tribunals._ —(1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled **WP(C).No. 34095 of 2018** 9 by the Government.” 10. The preamble of the Administrative Tribunals Act, 1985 shows that it was enacted in order to provide for adjudication of disputes and complaints with respect to recruitment and conditions of service of persons, appointment to Public Service and posts in connection with the affairs of Union or of any State etc., in pursuance of Article 323 A of the Constitution of India and for matters connected there with or incidental to that. Article 323 A of the Constitution of India reads as follows: 323-A. _Administrative tribunals._ —(1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government. **WP(C).No. 34095 of 2018** 10 ## Section 3(q) defines service matters which reads as follows: ## Section 3. Definitions: ## _**xxxxxxxxxxxxxx**_ - ( _q_ ) “service matters”, in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation[6] ~~[~~ or society] owned or controlled by the Government, as respects— - ( _i_ ) remuneration (including allowances), pension and other retirement benefits; - ( _ii_ ) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation; - ( _iii_ ) leave of any kind; - ( _iv_ ) disciplinary matters; or - ( _v_ ) any other matter whatsoever; ## Section 14 of the Act reads as follows: ## **14. Jurisdiction, powers and authority of the** - **Central Administrative Tribunal:.** (1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on **WP(C).No. 34095 of 2018** 11 and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court in relation to— - ( _a_ ) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian; - ( _b_ ) all service matters concerning— - ( _i_ ) a member of any All-India Service; or - ( _ii_ ) a person not being a member of an All-India Service or a person referred to in clause ( _c_ ) appointed to any civil service of the Union or any civil post under the Union; or - ( _iii_ ) a civilian not being a member of an AllIndia Service or a person referred to in clause ( _c_ ) appointed to any defence services or a post connected with defence,and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation or society owned or controlled by the Government; - ( _c_ ) all service matters pertaining to service in connection with the affairs of the Union **WP(C).No. 34095 of 2018** 12 concerning a person appointed to any service or post referred to in sub-clause ( _ii_ ) or subclause ( _iii_ ) of clause ( _b_ ), being a person whose services have been placed by a State Government or any local or other authority or any corporation or society or other body, at the disposal of the Central Government for such appointment. _Explanation_ .—For the removal of doubts, it is hereby declared that references to “Union” in this sub-section shall be construed as including references also to a Union Territory. 11. Thus from the preamble, Section 3(q) as well as Section 14 of the Act, it is clear that the jurisdiction of the Administrative Tribunals extends not only to matters after the appointment to the service; but also to all matters in connection with recruitment also. Recruitment is a process starting from the issuance of notification inviting applications till its culmination in appointment. The expressions “service matters”, recruitment, appointment, etc have come up for consideration of various courts including this Court and the Apex **WP(C).No. 34095 of 2018** 13 Court. Article 309 of the Constitution empowers the appropriate Legislature to frame rules to regulate recruitment to public services and the post. ‘Recruitment’ is a comprehensive term and it is a process leading to the induction of a person in public service. In **Prafulla Kumar Swain v. Prakash Chandra Misra** [1993 Supp (3) SCC 181] **,** it was held that recruitment is just an initial process that may lead to eventual appointment in the service, which cannot tantamount to an appointment. It was observed that the term “recruitment” connotes and clearly signifies enlistment, acceptance, selection or approval for appointment; whereas “appointment” means an actual act of posting a person to a particular office. In **Vijay Kumar Mishra v. High Court of Judicature at Patna** [(2016) 9 SCC 313], it was observed that the word “ _appointed_ ” cannot be read to include the word “ _selection_ ”, “ _recruitment_ ” or “ _recruitment process_ ”. The provisions under the **WP(C).No. 34095 of 2018** 14 Administrative Tribunals Act in unambiguous terms provide that all matters relating to recruitment to All India Service have to be dealt with by the Administrative Tribunals. Matters incidental to recruitment also come within its purview. Therefore an examination conducted by the UPSC for selection for appointment to the All India Civil Services is one conducted in the process of recruitment to civil service. Section 14 of the Act excludes the jurisdiction of the High Court over these matters. 12. In the judgment dated 21.08.2018 of the Madras High Court in W.P.No.2067 of 2018, relied on by the learned Standing Counsel, the Division Bench followed the Full Bench judmgment of that Court in **Secretary, Education Department Madras v. P. Hepzi Vimalabai** [1994 Writ LR 690], in which it was held that section 3(q) of the Act would include pre-recruitment matters as well. In that case an aspirant for appointment to civil service sought the **WP(C).No. 34095 of 2018** 15 assistance of a scribe to write the civl service final examination. 13. The Apex Court has in **Chandra Kumar v. Union of India** [AIR 1997 SC 1125], held that the Tribunals constituted under the Act would continue to be the courts of first instance in respect of areas for which it is constituted and it would not be open to litigants to approach the High Court directly. However it was held that the decisions of the Tribunals would be subject to scrutiny by a Division Bench of the concerned High Court. 14. As early as in 1988, this Court has by the judgment in **Saleem v Deputy Collector** [1988 (1) KLT 757], dismissed an Original Petition filed by aspirants for appointment to the post of Sepoys in Central Excise on the ground that the jurisdiction of this court in matters relating to recruitment are also excluded by Section 28 of the Administrative Tribunals Act. A Division Bench of this Court in the **WP(C).No. 34095 of 2018** 16 ## judgment in **Tomy Philip v The Chief General Manger,** **Telecommunication** [2001(2) KLT 490], approved the judgments dated 20.11.1992 in O.P.No.13618 of 1992 and in **Saleem** 's case (supra) and held that the primary authority to consider the questions relating to recruitment and matters incidental thereto is the Administrative Tribunal and that it is only the decision of the Tribunal that would be subject to scrutiny by a Division Bench of the High Court, under Article 226 and 227 of the Constitution of India, as held in C **handrakumar** 's case. 16. Though, the learned Senior Counsel placed heavy reliance on the judgment dated 10.02.1994 in O.P.No.16063 of 1993 in **Devassy v. State of Kerala** , it is seen that the said writ petition was filed by a person, who could not have approached the Tribunal, because an application under Section 19 could have been filed only by an “aggrieved person.” The petitioner was not one competent to contest for **WP(C).No. 34095 of 2018** 17 the post and was not a person even in any service. He wanted to see that Government is not appointing the 3[rd] respondent as Director General of Police. The contention of 3[rd] respondent therein that Administrative Tribunal alone has the jurisdiction to entertain the matter as it relates to his promotion, this Court found that as the matter was of public interest and when the petitioner therein who was a stranger was not able to approach the Tribunal under Section 19 of the Act, it can be entertained by this Court under Article 226. It is pertinent to note that the said judgment was rendered before the judgment in **Chandrakumar** 's case. In para 13 of the judgment this court had referred to the judgment of the Andhrapradesh High Court which had held that Article 323 A (2) (d) to the extent it divested the High Court of its jurisdiction, was unconstitutional. That question was concluded in **Chandrakumar** 's case (supra). Even **WP(C).No. 34095 of 2018** 18 otherwise that judgment will not apply to the factual circumstances of this case, as the petitioner himself is the person aggrieved by the action of the UPSC and he can very well file an application under Section 19 of the Act before the CAT. 16. The contention of the learned Senior Counsel is that the issue arising in this case is not one covered by the Proviso to Article 309 and therefore petitioner has rightly approached this court. It is also his contention that the Civil Service Examination Rules are not rules framed under Article 309 and therefore the forum to challenge action taken under such rules is the High Court. The judgments in **Patel V State of Gujarat** [AIR 1965 Guj 23] and **State of Madhya Pradesh and Others v. Shardul Singh** [1970 (1) SCC 108] relied on by the learned Senior Counsel in support of the contention that being an incident which occurred even before **WP(C).No. 34095 of 2018** 19 the petitioner entered the examination hall and started writing the examination, and that too with respect to the possession of certain electronic articles, do not have any relevance in this case. 17. In this case petitioner submitted application for selection and appointment to Civil Service. He assails the orders issued by Union Public Service Commission, issued under Civil Service Examination Rules framed by Government of India, Department of Training. The action taken against him, debarring him from appearing in the examination for selection to the Civil Service under the Government of India has been issued during the process of recruitment. It cannot be said that, it is not a matter coming under Section 3(q) of the Act. 18. The contention of the petitioner that the incident leading to the impugned orders, occurred before he entered the examination hall, and **WP(C).No. 34095 of 2018** 20 therefore CAT would not have jurisdiction is also unsustainable, as his grievance is against the action of the UPSC taken in connection with the process of recruitment to Civil Service, under Rule 14 of Civil Service Examination Rules. The question regarding applicability of Rule 14 of the Civil Service Examination Rules can be raised by the petitioner and the Tribunal is competent to decide that issue. Examination is conducted for determining the eligibility of candidates for selection for appointment to the service. Whether the incident occurred before or after the examination commenced, or before or after he entered the examination hall or that he was forcibly prevented from the examination hall or whether Rule 14 would apply or not will not make any difference in order to determine the question of jurisdiction to entertain the writ petition. Petitioner would be free to raise all his contentions before the appropriate **WP(C).No. 34095 of 2018** 21 forum. 19. In the light of the provisions contained in Section 3(4) and Section 14 of the Act and in the light of the judgment of the Division Bench of this Court in **Tomy Phillip** 's case (supra) and the judgment of the Apex Court in **L. Chandrakumar** 's case (supra) it can be safely concluded without any ambiguity that service matters under Section 3(q) will include matters incidental to recruitment also. Therefore, I am of the view that the matter is one incidental to recruitment and hence a service matter, which comes within the purview of Section 3(q) of the Administrative Tribunals Act. Therefore, I sustain the objection raised by the respondents and I dismiss the writ petition, with liberty to the petitioner to move the appropriate forum. Sd/- ## **P.V.ASHA, JUDGE.** rkc/AS **WP(C).No. 34095 of 2018** 22 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 31-10-2017 ISSUED TO THE PETITIONER BY THE RESPONDENT** **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 23-112017 ISSUED TO THE PETITIONER BY THE RESPONDENT** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1** TRUE COPY OF THE REPORT DATED 30.10.2017 IS PRODUCED HEREWITH. **EXHIBIT R2** TRUE COPY OF THE F.I.R. IS PRODUCED HEREWITH. **EXHIBIT R3** TRUE COPY IMPORTANT INSTRUCTIONS PROVIDED WITH E-ADMIT CARD PROVIDED TO THE CANDIDATES OF CSM 2017 IS PRODUCED HEREWITH. **EXHIBIT R4** TRUE COPY EXAMINATION NOTICE NO.06/2017-CSO DATED 22.2.2017 IS PRODUCED HEREWITH. **EXHIBIT R5** TRUE COPY OF THE E-ADMIT CARD OF CSM 2017 ISSUED TO THE PETITIONER IS PRODUCED HEREWITH. **EXHIBIT R6** TRUE COPY RULE 14 OF THE RULES FOR CIVIL SERVICES EXAMINATION, 2017 PUBLISHED IN THE GAZETTE OF INDIA EXTRAORDINARY PART I SECTION 1 DATED 22.2.2017 IS PRODUCED HEREWITH. **EXHIBIT R7** TRUE COPY OF THE SHOW CAUSE NOTICE BEARING F.NO.CSM/ROLL NO.655345/2017-E.IV DATED 31.10.2017 IS PRODUCED HEREWITH. **EXHIBIT R8** TRUE COPY OF THE DETAILED APPLICATION FORM SUBMITTED BY THE PETITIONER IS PRODUCED HEREWITH. **EXHIBIT R9** TRUE COPY OF THE SPEED POST TRACKING REPORT IS PRODUCED HEREWITH . **EXHIBIT R10** TRUE COPY OF ORDER BEARING F.NO.CSM/ROLL **WP(C).No. 34095 of 2018** 23 NO.655345/2017-E.IV DATED 23.11.2017 IS PRODUCED HEREWITH. **EXHIBIT R11** **EXHIBIT R12** TRUE COPY OF THE REPRESENTATION SUBMITTED ON 7.10.2018 IS PRODUCED HEREWITH. TRUE COPY OF LETTER BEARING F.NO.CSM/ROLL NO.655345/2017-E.IV DATED 12.10.2018.