Jharkhand High Court
State Of Jharkhand Thr. Princi vs Radha Prem Kishore & Ors on 14 June, 2012
Bench: R.K. Merathia, D.N. Upadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. ( PIL) No. 3594/2011
Budh Deo Oraon Vs. State of Jharkhand & Ors.
With
W.P.(PIL) No. 4980/2008, L.P.A.Nos.254/2011, 255/2011,
247/2011, 351/2011, 321/2011, 322/2011, 323/2011,
324/2011, 325/2011 & 434/2011.
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CORAM:HON'BLE MR.JUSTICE R.K. MERATHIA
HON'BLE MR.JUSTICE D.N. UPADHYAY
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For the Petitioner : Mr.Rajeev Kumar, Advocate
in WP (PIL) No. 3594/2011
For the State : JC to S.C. 1
For Accountant General: Mr.Suresh Kumar, Advocate
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For the Petitioner : Mr.Pandey Ashok Nath Roy
Mr. Satya Prakash Sinha, Advocates in
in WP(PIL) No. 4980/08
For the Respondents : Mr.Abhay Kumar Mishra,
Mr. Manoj Kumar Choubey, Advocates
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For the Appellant : Mr. R.R.Mishra, G.P. II in LPA No. 254/2011
For Respondent no. 1 : Mr. S. Srivastava, Advocate
For Satish Kumar Singh
& Others : Mr. S.N. Prasad, Advocate
For Vikash Kumar Pandey : Mr. Delip Jerath, Advocate
For Successful candidates : Mr. S Mitra
: Mrs. Nivedita Kundu, Advocates.
----
For the Appellants :JC to G.P. 1 in LPA No. 247/2011
For the Respondents : Mr. Basant Kumar Chaudhary, Sr. Advocate
Mr. Rakesh Kumar Singh, Advocate
Mr. Rajendra Krishna, Advocate
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For the Appellant : JC to S.C. II in LPA No. 323/2011
For the Respondents : Mr. Anup Kumar
Mr. Rajendra Krishna
Mr.Rakesh Kumar Singh, Advocates
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C.A.V. On 07.05.2012 Delivered on 14/06/2012
R.K. Merathia, J, All these cases were taken up and were heard together at
length. In Public Interest Litigation (W.P. (PIL) No. 3594 of 2011)
several selection processes held by the Jharkhand Public Service
Commission ( JPSC for short) have been challenged, including the
selection process pursuant to the 2nd Combined Civil Services
Examination, whereas in the Letters Patent Appeals (LPAs) only the
selection process of 2nd Combined Civil Services Examination
pursuant to the Advertisement No. 07 of 2005 is involved. Though
the facts and the main questions involved in PIL and LPAs are
common, but for the sake of clarity and convenience the PIL and LPA
will be dealt with separately.
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Relevant facts common to PIL and LPAs.
2. Several complaints were received by the State Government
alleging mal-practices, favoritism, interpolation and manipulation
done in the several selection processes held by the JPSC.
3. Sometimes in July, 2008, during Hon'ble Governor's Rule,
recommendations were made for enquiring into the matter. The
matter remained pending for more than a year.
4. A letter dated 30.11.2009 was written by the Secretary to the
Chairman, JPSC that while taking over charge, he found that the
documents/papers relating to examinations were not kept properly in
strong room in sealed cover, rather they were found scattered and
kept openly in cartoons. He also indicated the financial irregularities.
5. By letter dated 27.08.2009 as per the direction of the Hon'ble
Governor, the Vigilance Commissioner requested D.G.P. Vigilance to
enquire into the allegations. On enquiry, the allegations were found
prima facie correct.
6. The Memo of charges were framed against the Chairman-Sri
Dilip Kumar Prasad and the members-Sri Gopal Prasad Singh, Sri
Radha Govind 'Nagesh' with regard to different selection processes
such as 1st and 2nd Civil Services Examination, Market Supervisor
Examination, Lecturer Examination etc.. The charges inter alia were
that the selection processes were tainted due to deliberate
irregularities, mal-practices, bribe, influence and favoritism etc and
that the Chairman and Members of the JPSC have misused their
constitutional posts for giving benefit to their relatives; and kith and
kins. Some of the names of their near and dear ones were also
indicated in the charges.
The PIL-WP( PIL) No.3594 of 2011
7. It may be noted that one Public Interest Litigation being WP
(PIL) No. 4918/08 was filed by one Pawan Kumar Choudhary for
instituting a case and investigating the 2nd Civil Services Examination
conducted by JPSC. This PIL is also in the present batch.
8. Another Public Interest Litigation WP (PIL) No. 397/2010 was
filed on 1.2.2010 by one Budhdeo Oraon for a direction upon CBI to
investigate into the entire appointments made through the JPSC
including 1st and 2nd Jharkhand Combined Civil Services Examination
and also into the earnings of the Chairman and Members of JPSC and
for lodging an FIR. Investigation into the appointment process of all
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16 examinations was also sought including the investigation into
financial irregularities.
9. A counter affidavit was filed only on behalf of the officiating
Chairman, JPSC indicating therein that the steps were taken to
ensure proper selection and putting the working of JPSC on track. On
such affidavit, the said writ petition was disposed of on 1.9.2010 with
the following order:-
" The necessary action as prayed for putting the
working of Jharkhand Public Service Commission on track
has been taken by the Government. As per their
response, learned counsel for the petitioner is satisfied as
far now.
However, if at all any cause of action arises in
future, he will have the liberty to bring those facts to the
notice of this Court.
With the aforesaid observation, this petition is
disposed of".
10. Then the present PIL being W.P.(PIL)No. 3594/2011 has been
filed on 1.7.2011 by the said Budhdeo Oraon seeking CBI
investigation into the entire alleged appointment scam of JPSC in
holding 16 examinations including 1st and 2nd Jharkhand Combined
Civil Services Examinations, on the ground that the Vigilance has
failed in its duty to investigate the same properly due to involvement
of influential people. The investigation by Income tax department has
been sought into the earnings of the concerned ex- officer of JPSC.
Direction has also been sought for submitting an audit report by the
Accountant General.
The following submissions were made on behalf of the petitioner in
the Public Interest Litigation.
11. JPSC is a Constitutional Body. But there has been large scale
bungling in the selection processes during the period of
Chairmanship of Shri Dilip Kumar Prasad and when Sri. Gopal Prasad
Singh, Shri Radha Govind Singh 'Nagesh', Smt. Shanti Devi etc. were
the members of JPSC. State Vigilance is not investigating the cases
properly. Inspite of long delay, the investigation has not been
completed by the Vigilance. The evidences will be lost due to delay.
The entire selection processes are tainted. The candidates of the
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influential persons have been selected. Many of them have been
selected on extraneous consideration. The State Vigilance has not
been and will not be able to complete the investigation properly and
expeditiously. Due to involvement of high influential persons, the
State Vigilance will not be able to investigate the scam properly. The
relevant documents and the records are not being supplied to the
Vigilance Department by the concerned persons of JPSC. All the
investigations pending with the State Vigilance Bureau should be
handed over to CBI.
12. The learned counsel appearing on behalf of 167 selected
candidates submitted as follows.
The present PIL in the service matter is not maintainable and
secondly the petitioner-Budhdeo Oraon had filed another PIL earlier
with the self same relief, which was disposed of with some
observations. It was further submitted that only on the basis of
suspicion, they cannot be removed from service. There is no bar that
a near and dear one of an influential person cannot take part and
compete in a selection process. They can be removed only if found
guilty in the departmental proceeding or in the criminal case.
13. In reply, learned counsel for the petitioner in PIL submitted that
the present W.P ( PIL) No. 3594 of 2011 is maintainable. The earlier
PIL was disposed of in view of the counter affidavit of the officiating
Chairman of the JPSC that corrective majors are taken. The writ
petition was disposed of with liberty to file fresh writ petition. It was
not decided on merits. This PIL does not relate to service matter. It
relates to the bungling in selection processes. This court can take suo
motu action in such matters. The court is not bound by the opinion of
one or other Government officer. The tainted candidates can not and
should not be allowed to work.
The following submissions were made on behalf of the State.
14. Learned counsel for the State referred to its counter affidavit
filed in this PIL, on 3.1.2012. In the counter affidavit, it is inter alia
stated that altogether 12 enquries in connection with the alleged
mal-practices and corruption in JPSC were entrusted to Vigilance
Bureau as detailed in the counter affidavit.
(i) Case no. 23/2010 dated 12.06.2010 was instituted
against 32 named persons including the Chairman and
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Members of the JPSC and 19 terminated candidates, regarding
2nd Civil Services Examination held by JPSC.
(ii) Vigilance P.S. Case No. 11/2011 dated 24.04.2011 was
also registered against the Chairman and Members of the JPSC,
in which chargesheet no. 53/11 dated 5.8.11 has been
submitted pending further investigation.
(iii) With regard to 1st Civil Services Examination, Vigilance
P.S. Case No. 10/2011 dated 26.4.11 has been registered
against the Chairman and Members of the JPSC, in which
also chargesheet no. 52/11 dated 3.8.11 has been
submitted pending investigation against other accused
persons.
(iv) Regarding the appointment of Deputy Registrar of Ranchi
University and S.K.M. University, Dumka, Vigilance P.S.
Case No. 13/2011 dated 26.04.2011 has been registered
against the Chairman and Members of the JPSC pending
further investigation.
(v) Regarding appointment of Principal, Professor and
Lecturer of Rajkiya Pharmacy Sansthan, Vigilance P.S.
Case No. 12/2011 has been instituted against the
Chairman and Members of the JPSC, in which also
chargesheet no. 55/11 dated 5.8.2011 has been
submitted.
(vi) With regard to appointment of Lecturers, preliminary
enquiry being P.E. No. 34/10 dated 24.09.10 is going on,
in which the allegations have been found to be true.
(vii) With regard to appointment of Primary Teacher and the
Residential School Teacher, P.E. No. 36/10 dated
1.9.2010is said to be continuing.
(viii) In P.E. No. 1/09 dated 17.02.2009, with regard to 1st limited Civil Services Examination, the Enquiry Officer has made recommendation to the Vigilance Commissioner, Cabinet ( Vigilance), Jharkhand to cancel the examination on the basis of the facts found during enquiry.
(ix) P.E. No. 23/10 dated 1.9.2010 has been registered regarding the Administrative & Financial lapses in JPSC, in which it is said that disproportionate asset angle will also -6- be looked into. During investigation, several lapses have been found and permission is sought to lodge FIR.
(x) P.E. No. 29/10 dated 1.9.2010 has been registered regarding the examination of the Sr. Audit Officer and Cooperative Extension Officer conducted in the year 2006.
(xi) P.E. No. 28/2010 dated 1.9.2010 was registered regarding the appointment of Medical Officer.
(xii) P.E. No. 38/10 dated 24.09.2010 was registered regarding the Market Supervisors Examination in the year 2006.
According to the State counsel, the State Vigilance Bureau is effectively enquring/investigating the said cases and therefore there is no need to handover the cases to C.B.I. at present.
15. Ultimately, it is stated that this court if thinks fit can direct the investigation by C.B.I. On this, Mr. Mokhtar Khan, learned counsel appearing for the CBI, submitted that if this Court directs, CBI can take over the matters.
16. Thus, the first question is whether W.P. ( PIL) No. 3594 of 2011 is maintainable?
This PIL alleges mass scale bungling in different selection processes. It is not a service matter in the sense in which it has been said that PIL is not maintainable in service matters.
Secondly, the earlier PIL was not decided on merits as noticed in paragraphs 8 and 9 above.
Thus, in our opinion, this PIL is maintainable.
17. The second question is whether the cases pending with the State Vigilance Bureau should be handed over to C.B.I.?
As noticed above, the DGP Vigilance himself was of the opinion that the selection process of 2nd Combined Civil Services Examination should be investigated by C.B.I. However, the Chief Secretary was of the opinion that it was not required at that stage. But in our opinion, the stage has come when all pending cases before the State Vigilance Bureau should be handed over to C.B.I. As per the allegation, the selected candidates are the near and dear ones of the persons holding very high and influential position including the Politicians and Ministers. The progress made by the State Vigilance -7- Bureau in all these years is not satisfactory. The relevant records were not sent by JPSC to Vigilance.
18. During the course of hearing, learned counsel appearing in W.P. ( PIL) No. 3594 of 2011, supplied a list of the candidates selected in various selection processes, for perusal of this court. It is alleged that such candidates have been selected being the near and dear ones of the Chairman and Members of the JPSC and other influential persons and also on the basis of the monetary transactions. It is submitted that such list is a tip of ice berg and if investigation is made by the C.B.I. much more tainted cases will come to light.
19. It is true that there is no bar in taking part in selection process by a near and dear one of an influential person and getting selected on merit, but it is not possible to swallow that only the near and dear ones of influential persons will be meritorious and will be selected on merit.
From the said list, for example, we may take the case of one of the members of the JPSC-Shri Gopal Prasad Singh. Apart from his others, his own son Kundan kumar Singh, his daughter in law-Jugnu Singh, his own brother-Shankar Singh, his another own brother- Tripurari Singh, his own brother's wife-Rekha Singh, apart from his other near and dear ones, are said to have been appointed as Lecturers.
The own brother in law of Sri Gopal Prasad Singh-Uday Kumar Singh has been selected and working as Finance Officer and Sanjay Kumar Singh, his brother in law is said to have been selected and working as Librarian in S.K. University, Dumka.
The names of the relatives and close associates of the Chairman and Members of the JPSC and the near and dear ones of highly influential persons including Ministers have also been disclosed in the said list of selected and appointed candidates. There is also allegation of monetary transactions.
These allegations are subject matters of investigation but if found correct, the position would be intolerable.
20. JPSC is a constitutional body. Prima facie it has failed to discharge its duty in conducting the selection processes in question in transparent manner. Prima facie, large scale fraud has been played. Fraud and justice never dwell together (Fraus et jus -8- nunquam cohabitant). It has been repeatedly said that fraud and deceit defend or excuse no man ( Fraus et dolus nemini patrocinari debent).
21. Fair play is justice and unfair play is injustice. Prima facie injustice has been done to the unselected candidates. The present PIL is between the court on the one hand and the State, JPSC and the selected candidates on the other hand. If the selection of a candidate is found tainted with fraud, such candidate being the beneficiary of fraud cannot be said to be innocent and has to suffer the consequences, of the crime.
22. It was submitted on behalf of the selected candidates that in some of the cases, some of the examinations held by the JPSC have been upheld by this court but it appears from such orders, being order dated 3.2.2009, passed in LPA No. 78/2007 in the case of Arun Kumar Dubey and from the order dated 1.2.2012, passed in LPA No. 144 of 2011 that those cases were with regard to individual grievances of some of the candidates. In our opinion, such orders are of no help to the selected candidates.
23. In the result, the Vigilance Department will handover the records of all the pending Vigilance Cases to the C.B.I. within two weeks.
It is expected that the C.B.I. will take up the investigation and will try to conclude it as early as possible and preferably within three months from the date of receipt of the records from Vigilance Bureau. The CBI may register one case or separate cases, as it may think proper. It is clarified that the C.B.I. will be free to act in accordance with law, and the pendency of these cases will not stand in the way of CBI, in any manner. It is made clear that CBI will not be prejudiced by the prima facie observations made in this order.
LPAs arising from the 2nd Combined Civil Services Examination pursuant to Advertisement No. 07 of 2005
24. It may be noted that in the 2nd Civil Services Examination, 172 candidates were selected. Five did not join. Out of remaining 167 candidates, 19 were terminated as aforesaid. One candidate namely Kumar Shailendra did not challenge his termination order. The other -9- 18 candidates challenged their terminations by filing 18 writ petitions, (referred as terminated candidates). 148 candidates are working in different departments of the Government, ( referred as working candidates). The writ petitions were allowed. 10 Letters Patent Appeals have been filed against the orders passed in 10 writ petitions. There is nothing to show that LPAs have been filed with regard to other 8 writ petitions. But the main question is whether the entire selection process is void or not, and in that view of the matter non filing of LPAs against the orders passed in writ petitions, is not of any consequence.
25. As noticed above, several complaints were received by the State Government, alleging mal-practices and fraud in several selection processes held by JPSC, including the aforesaid 2nd Combined Civil Services Examination. On investigation, the allegations were prima facie found to be correct.
26. By letter dated 27.05.2010, the D.G.P. Vigilance sent its interim investigation report to the Vigilance Commissioner regarding 2nd Civil Services Examination. From this letter, it appears that the answer sheets and interview documents of about 37 candidates out of 172 candidates were examined, as sample, in which candidatures of 19 candidates were found tainted. He recommended that Government may consider removal of the tainted candidates. Permission was sought for lodging the FIR. It was also recommended that the assets of the Chairman and the members of the JPSC related to 2nd Civil Services Examination be got examined by C.B.I. It was further recommended that the Government may consider to handover the investigation with regard to 2nd Civil Services Examination as well as other examinations through C.B.I. The matter was referred to the Chief Secretary indicating the gist of preliminary enquiry.
27. The Chief Secretary referred the matter to the Hon'ble Governor advising that the Vigilance Bureau should institute an FIR and investigate the case through special team so that the investigation is completed within maximum period of three months; and the 19 candidates, against whom prima facie case has been made out, should be served with show cause notice as to why their services should not be terminated. The Chief Secretary opined that -10- he was not in favour of handing over the case to CBI at that stage. He further opined that the Vigilance Bureau itself should complete the investigation into the assets and properties of the Chairman and Members of the Commission with special team and in case the Vigilance Bureau has shortage of staffs, they can authorize to recruit retired CBI officers and retired competent police officers, on contract. He also opined that pending such enquiry, 19 candidates regarding whom prima facie case of fraud and forgery has been found should be immediately recalled from the field and be attached to the department of Personnel & Training till the final decision is taken on the show cause to be served on them.
28. Accordingly, the matter was referred to the State Vigilance Bureau. The Personnel & Training Department by letter was directed to issue show cause notices to 19 candidates.
29. On 12.06.2010, an FIR being Vigilance Case No.23/2010 was lodged against 32 named accused persons including the 19 selected candidates.
30. The Law Department was of the opinion that since the initial appointment of the said appointees was itself illegal and void on account of the same having been obtained by unlawful means, there is no question of initiating any enquiry against them under Article 311(2) of the Constitution of India. Accordingly, 19 appointees were terminated between 4.8.2010 to 13.10.2010 on the ground that the Government is satisfied that their services were not required in public interest. The said candidates filed 18 writ petitions (except one Kumar Shailendra), as aforesaid.
31. The stand of the State in the writ petitions was inter alia as follows. There has been mal-practices in getting the candidates selected. FIR has been lodged with regard to such bungling alleging manipulation, interpolation in marks-in examination sheets and interview. The selection was anything but not on merit. The successful candidates got them selected due to relationship, influence, bribe etc. The candidatures of other candidates were wrongly rejected.
32. In view of such stand taken by the State, the writ petitions were allowed mainly on the ground that the termination orders were stigmatic and therefore were in violation of Article 311(2) of the Constitution of India, which article was applicable to probationers as -11- well as regular employees. The writ petitioners were allowed to join their posts, on which they were working till they were duly served with show cause notices and were given opportunity of hearing. However, such joining was to be subject to final decision in the enquiry proceeding in the event the Government decided to hold an enquiry.
33. In the L.P.As, the State reiterates its stand taken in the writ petitions, that the selection process of the 2nd Combined Civil Services Examination was tainted with manipulation and fraud, for which Vigilance Case no. 23/2010 was also registered against 32 named accused persons including the writ petitioners. The further stand of the State in the LPAs is that as the appointment itself was void, recourse to the provisions contained in Article 311 (2) of the Constitution of India was not required. Further it is said that if such officers are retained in service, it is bound to damage the image of the State and bring bad name to the Government and destroy the ethical fabric of the administrative set up of the State.
On the other hand, learned counsel appearing on behalf of terminated candidates supported the orders passed in the writ petitions.
34. These batch of cases were heard on 8th November,2011 by a Division Bench of this Court. Learned counsel for the State referred to the aforesaid letter dated 27.05.2010 which was sent by the D.G.P. (Director General of) Vigilance Bureau to the Vigilance Commissioner showing prima facie mass scale illegalities and deliberate irregularities in the selection process of 2nd Jharkhand Civil Services Examination which related to the State Police Service, the State Finance Service, the State Cooperative Service and the State Administrative Service.
35. This court on perusing the enquiry report found the facts mentioned therein to be very glaring. From such report, it appeared to this Court that there was cheating, forgery well planned large scale criminal conspiracy, misuse of power, large scale corruption, and illegal monitory transactions in the entire selection process. This court noticed that it appeared to be a case of selection scam, and observed-
" We want to know from the State that in case where the State found after inquiry that there was large number -12- of manipulation, interpolation, wrong constitution of Committees and relevant records were, either not given to the Enquiry Officer or were never in existence and when the persons, who were members of the selection process, failed to submit their requisite declaration with respect to participation of their relatives-candidates in the selection process and it was found that in the process of selection relatives of candidates were Members and where there is allegation of taking money by the officers, abuse of their power with specific instance given in detail in the report, under what circumstances, State had not cancelled the entire selection and had passed order with respect to only 19 candidates.
It is also pertinent to mention here that the Enquiry Officer has also clearly stated in his enquiry report with respect to the conduct of the persons working in Jharkhand State Public Service Commission, who, on demand by the Enquiry Officer, tried to avoid submitting the record and on insistence, successfully avoided to submit the records by taking the plea of "official secret"
even in the matter of such enquiry. As per the fact mentioned in the enquiry report, it was informed to the Enquiry Officer, vide letter dated 28.07.2010, that for constitution of the interview Board, no document is available with the Jharkhand State Public Service Commission. It appears that the Enquiry Officer could trace out the names of seven experts, for which he opined that all seven persons were appointed in violation to the Jharkhand Lok Seva Aayog Rules, 2002. Not only this, to conduct the examination, it was projected that one Dr. Gopal Singh was authorized and by his order, the experts were selected and appointed, whereas in respect to this fact, no record was available with Jharkhand State Public Service Commission. It appears from the enquiry report that sample test was conducted with respect to various answer books of various subjects.
Be that as it may, the enquiry was not with respect to the particular candidate and it appears that the -13- enquiry was with respect to the entire process of selection and prima facie, we are of the opinion that enquiry was against the entire selection process with allegation of corruption, mal-practice, favouritism, manipulation and forgery and we are of the considered opinion that in the process of selection, forgery, manipulation, interpolation and taking bribe is normally not from all the candidates and when large scale favoritism, illegal gratification or even substantial number of such activities are found, then in such circumstances the entire process should have been cancelled.
We are also having doubt, that the impugned order may have been passed so as to project that cases against certain individuals have been made out and, therefore, they only have been punished and the Government acted fairly to remove those persons who got appointment through illegal mode and manner but in our opinion, it may also be a case of protecting other persons for whom no order has been passed and no action has been taken and even if those 19 persons individually, (individually against whom no enquiry was conducted, nor they were heard), may be guilty and were, therefore removed, that does not make the entire selection process clean and pure which was in the hands of such type of persons who can appoint persons in the State Administrative Service in all fields like State Administrative Service, State Police Service, State Cooperative Service, State Finance Service so as to permit them to eat out the entire State.
We are of the considered opinion that it is a fit case for giving notice to the State Government as well as to all selected candidates, as to why their selection, as a whole, may not be cancelled and therefore, issue notice to the State Government to show cause as to why the selection process started by issuing advertisement no. 07 of 2005, in pursuance of which appointments have been given by the State Government and have been continued in spite of the enquiry report referred to above and in -14- spite of the fact that State itself has acted on that report and lodged FIR, be not cancelled".
36. Notices were also issued to all the selected and appointed candidates through the State Authorities. Notices were also issued to writ petitioners who were appearing before the court, which were accepted by them. Such notices were issued only in LPA No. 254 of 2011 with which all other matters were connected. The State was directed to submit the status report with regard to criminal case.
37. This court heard the parties also on the question of stay of the orders impugned in the letters patent appeal. After hearing the parties, and by a reasoned order, this Court stayed the impugned orders, passed in the writ petitions about giving joining to the terminated candidates.
38. Then on 26.03.2012, the following order was passed by this Court:-
" Referring to the supplementary affidavit filed on behalf of State in L.P.A. No.254 of 2011 on 16.02.2012 Mr. Mishra appearing for the State submitted that the order dated 08.11.2011 and 09.12.2011 have been complied by serving notice on the working candidates out of 172.
Service report is accepted as valid.
All the learned counsel, appearing for all the parties agree that L.P.A. No.254 of 2011 can be taken up as the main case. Office will mark running page in the brief of L.P.A. No.254 of 2011 by 28.03.2012.
The learned counsel appearing for the parties may mark such running page in their brief. -
As all the cases are being heard together for deciding the points involved therein, the parties will be at liberty to inspect the records thereof by 30.03.2012 for which the records of all the cases will be kept in the office of Assistant Registrar (Inspection).
The parties may request the other parties for supply of required pleadings, if any, by 30.03.2012 which must be supplied by the parties concerned by 2nd April, 2012.-15-
The parties will be at liberty to file further affidavit, if any, by 7th April, 2012 after serving copy on the concerned parties.
Reply affidavit, if any, by any of the parties can be filed by 13.04.2012.
Put up on 17th April, 2012 for final disposal, if possible".
39. When the cases were taken up for hearing on 17th April, 2012, an Interlocutory Application-I.A. No. 137 of 2012 was pressed, which was filed for recalling/modifying the said order dated 8.11.2011.
Accordingly the said I.A. was referred to the Division Bench which passed the order dated 8.11.2011.
40. By order dated 2.5.2012, the said I.A. was dismissed for the reasons mentioned therein, after hearing the parties at length. It was inter alia observed that in the order dated 8.11.2011 as well as in the order dated 2.5.2011, observations have been made only for the purpose of issuing notices so that the candidates on whom the notices were issued can know the grounds for issuing the notices. It was further observed that the Bench hearing the matter will decide the matter without being influenced by any of the observation made in the orders dated 2.5.2011 and 8.11.2011.
The following submissions were made on behalf of 18 terminated candidates.
41. They were selected on merit. There was no bungling in their selection. Their termination has been rightly set aside as it was stigmatic and therefore in violation of Article 311 (2) of the Constitution of India. Other candidates selected in the same selection process are working and only these 18 have been terminated and are suffering for no fault on their part. Their termination is based on unilateral preliminary enquiry. Their careers will be ruined if their termination is upheld. They should be allowed to continue till the conclusion of departmental enquiry.
The following submissions were made on behalf of 148 working candidates.
42. They have been selected on merits. There is only suspicion with regard to their selection process. In any event, they cannot be terminated without following the due process of law as contemplated -16- under Article 311(2) of the Constitution of India. Further their right of appeal etc. cannot be taken away. On the basis of preliminary inquiry/FIR, they cannot be removed from service. The entire selection process cannot be declared as bad. There is no specific allegation against them. They do not know what is against them.
43. Relying on the judgments reported in (2006) 11 SCC 356- Inderpreet Singh Kahlon and others Vs. State of Punjab and others and ( 2003) 7 SCC 285-Union of India and others Vs. Rajesh P. U., Puthuvalnikathu and another, it was submitted that the cases of the 19 tainted candidatures should be separated from 148 candidatures, against whom only suspicion is there.
The common submissions on behalf of all 168 candidates, were as follows.
44. There is no bar that the relatives /known persons of the Chairman and Members of the Commission or the other influential persons cannot take part in the selection processes.
45. Cutting in the marks is natural phenomena in competitive examination for the purpose of scaling, moderation etc. In the cases reported in (2003) 12 SCC-701-U.P. Public Service Commission Vs. Subhash Chandra Dixit etc. and (2005) 12 SCC 688- K. Channegowda etc. Vs. Karnataka Public Service Commission etc., the cutting in the marks was held permissible.
46. Other examinations held by JPSC have been upheld by this Court.
If their services is terminated, some of them will not be able to take part in other selection process as their age has expired. Some of them have joined leaving other service. If their services is terminated, the State function will collapse.
47. The question is whether the case of the 19 terminated candidates is required to be dealt with separately with the other 148 working candidates?
48. The writ petitions filed by 18 terminated candidates, were allowed mainly on the ground that their termination was not simplicitor, rather it was stigmatic and therefore Article 311 (2) of the Constitution of India was required to be followed.
49. But it is rightly not disputed by the parties, that if the selection itself is held tainted and void, Article 311 (2) or the principles of -17- natural justice are not attracted, which would be attracted if any charge relates to misconduct committed by an employee during his service. In the case of R. Vishwanatha Pillai Vs. State of Kerala and others-(2004) 2 SCC 105, it has been held as follows:-
"15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising -18- fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.
16. In Ishwar Dayal Sah V. State of Bihar the Division Bench of the Patna High Court examined the point as to whether a person who obtained the appointment on the basis of a false caste certificate was entitled to the protection of Article 311 of the Constitution of India. In the said case the employee had obtained appointment by producing a caste certificate that he belonged to a Schedule Caste community which later on was found to be false. His appointment was cancelled. It was contended by the employee that the cancellation of his appointment amounted to removal from service within the meaning of Article 311 of the Constitution and was therefore void. It was contended that he could not be terminated from service without holding departmental inquiry as provided under the Rules. Dealing with the above contention, the High Court held that if the very appointment to the civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 of the Constitution can possibly flow. It was held: ( Lab IC pp.394-95, para
12).
If the very appointment to civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional right under Article 311 can possibly flow from such a tainted force. In such a situation, the question is whether the person concerned is at all a civil servant of the Union or the State and if he is not validly so, then the issue remains outside the purview of Article 311.If the very entry or the crossing of the threshold into the arena of the civil service of the State or the Union is put in issue and the door is barred against him, the cloak of protection under Article 311 is not attracted.
-19-17. The point was again examined by a Full Bench of the Patna High Court in Rita Mishra V. Director, Primary Education, Bihar. The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent, or illegal. The Full Bench held: ( AIR p. 32, para 13).
"13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of the law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow from it".
18. We agree with the view taken by the Patna High Court in the aforesaid cases.
19. It was then contended by Shri Ranjit Kumar, learned senior counsel for the appellant that since the appellant has rendered about 27 years of service the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionery benefits of the appellant. We do not find any substance in this submission, as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eyes of law. The right to salary or pension after retirement flow from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment -20- was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste thus depriving the genuine Scheduled Caste of appointment to that post does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud".
50. The allegations in PIL is that all the selection processes in question are tainted with manipulation and fraud. These selection processes include the 2nd Combined Civil Services Examination, in which 167 candidates are involved.
51. Therefore the main question is whether the selection processes in question are tainted with manipulation and fraud or not.
52. The fate of the orders passed in the 18 writ petitions and the show cause notices issued to them and/or other 148 candidates will depend on the answer to this main question.
53. Therefore, in our opinion, the cases of 18 terminated candidates are not required to be dealt with separately from the cases of 148 candidates.
54. The next question is whether the cases of tainted or untainted candidates of 2nd Combined Civil Services Examination can be separated, and whether the said selection process should be declared void, being tainted with manipulation and fraud?
-21-55. Reliance was placed on behalf of the selected candidates on S.C. Dixit (supra) and K. Channegowda ( supra) in support of their contention that cutting in the marks is a normal phenomena due to scaling/moderation etc. Such contention is not acceptable. In case of S.C. Dixit (supra), scaling was not disputed and therefore it was observed that there was nothing wrong in it. Similarly, the facts situation in the case of K. Channegowda (supra) was also different from the present case. In the present case, JPSC has not said that cutting in the marks was due to scaling/moderation. Moreover, in the case reported in (2007) 3 SCC 720-Sanjay Singh and another Vs. U.P. Public Service Commission, Allahabad and another, it was observed that approval of the scaling system in S.C. Dixit (supra), is no longer valid. The case of K. Channegowda (supra) was explained in the judgement of Sanjay Singh (supra). Therefore it is not possible to accept that cutting/overwriting in the marks is a normal phenomena due to scaling/moderation in the examination in question. Moreover, as noted above, Forensic Science Laboratory, Gandhi Nagar, Gujarat confirmed the incidences of manipulation and interpolation in the answer books and in the marks given during the interview. Further as already noted, the JPSC has not come out with a case that the alleged cutting/overwriting was due to scaling/moderation.
56. In the case of Inderpreet Singh Kahlon (supra) heavily relied on behalf of the selected candidates, the fact situation was different. In that case, a report was submitted by the committee stating that a distinction is possible to be made between the tainted and non- tainted officers but in the present case, the fact situation is different.
57. It appears that initially sample verification of 37 candidatures out of 172 was made, in which the cases of 19 candidates were found tainted. Then, it appears from the counter affidavit filed on behalf of State in the PIL that during further investigation, the answer books of 172 selected candidates were examined by the Vigilance Bureau, out of which 139 candidatures were found suspicious, in which the marks were increased or decreased after cutting and over writing. The answers books of 632 unsuccessful candidates who were also allowed to face the interview was also examined, in which it was found that the original marks of 120 candidates were reduced. The suspected mark-sheets of interview of 83 candidates were examined -22- by the Forensic Science Laboratory, Gandhinagar, Gujrat which confirmed the incidences of manipulation and interpolation in the answer books and also in the marks given during the interview.
58. It also appears that not only there were interpolation, cutting and overwriting in the marks of successful candidates but it was done in the cases of unsuccessful candidates also.
59. Paragraph 19 of the counter affidavit filed on behalf of the State in PIL reads as follows.
"19. That the statements made in paragraph 17 of the writ application under reply it is submitted that the Answer Books of 172 selected candidates have been examined in the Vigilance Bureau. Out of 172, Answer Books of 139 candidates were found suspicious. The marks were increased or decreased after cutting and overwriting. The 368 Answer Books of 139 selected candidates were examined by D.F.S. Gandhi Nagar, Gujarat. Answer Books of 632 unsuccessful candidates who were allowed to face the interview were also examined by the team under the leadership of I.O. At first instance, it is apparent that the original marks of 120 candidates have been reduced, for the accuracy the copies would be sent to D.F.S. Gandhi Nagar, Gujarat for Expert opinion. In this way altogether 5628 Answer Books of 804 candidates were examined till date during the investigation of Vigilance P.S. Case No. 23/10 related to 2nd Combined Civil Services Examination conducted by the JPSC. Even suspected mark sheet of interview of 83 candidates have also been examined by the DFS, Gandhi Nagar, Gujarat. The aforesaid premier institute has also confirmed the incidences of manipulation and interpolation in the Answer Books, and also in the marks given during their interview. Hence it is not true and denied".
60. Thus, in our opinion, it is not possible to separate the cases of tainted or untainted candidates of the 2nd Combined Civil Services Examination. The Vigilance Bureau itself found 139 candidates tainted out of 168. It is not known what steps were taken by the -23- Vigilance Bureau thereafter. Even if there are few untainted candidatures it is not known where they would have stood, had the selection been made in a transparent manner.
61. Thus a strong prima facie case is made out in support of the contention of the State, that the entire selection process of 2 nd Combined Civil Services Examination is tainted. The selected candidates are holding important posts in the State. If such tainted candidates are allowed to continue, till the investigation by CBI is complete, it will be against public interest.
62. After carefully considering the entire facts and circumstances of the case, we are of the opinion that as several selection processes including this one, has been handed over to CBI, instead of declaring this selection process void at this stage, we are inclined to order that the candidates selected in the 2nd Combined Civil Services Examination held pursuant to Advertisement No. 07 of 2005 will not be allowed to work and draw their salary till further orders of this Court.
63. However, only one candidate namely Ranju Kumari who has been selected and appointed against handicapped quota will be allowed to continue till further orders of this Court.
Awaiting the report of CBI, as ordered in paragraph 23 above, put up these cases on 5th November, 2012 before appropriate Bench.
( R.K. Merathia, J) ( D.N. Upadhyay, J) Rakesh/