The Union Of India And Others vs Rahul Anantrao Kale And Others on 3 May, 2019

[Cites 6, Cited by 1]

Bombay High Court

The Union Of India And Others vs Rahul Anantrao Kale And Others on 3 May, 2019

Author: A. M. Dhavale

Bench: S. V. Gangapurwala, A. M. Dhavale

1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

WRIT PETITION NO.12117 OF 2016

01 Prakash s/o Bhagaji Wani
Age 27 years, occ. nil
R/o Chinchkheda, Post Maniknagar
Tq. Sillod, Dist. Aurangabad

02 Alkesh S/o Walimik Nikam
Age 28 years, Occ.Nil
R/o yashwant Nagar Pachora Road
Bhadgaon, Tq. & Dist. Jalgaon

03 Vaibhav S/o Chandrakantrao Kulkarni
Age 24 years, Occ. Unemployed
R/o Bhakti Construction Beed
Tq. & Dist. Beed

04 Baviskar S/o Bhushan Devidas
Age 22 years, Occ Nil
R/o At Post Kapadne
Tq. & Dist. Dhule

05 Digvijay S/o Ramdas Chaudhari
Age 27 years, Occ. Nil
R/o Near Bajaj Poly College,
Balaji Ward, Chandrapur
Tq. & Dist. Chandrapur

06 Vitthal s/o Gulabrao Khadse
Age 30 years, Occ. Nil
R/o At Post Hirdao Tq.Lonar
Dist. Buldana

07 Mahesh S/o Popat Gorgund
Age 29 years, Occ. Nil
R/o At Post Khare Krjune,
Tq. & Dist. Ahmednagar

08 Swati D/o Ashok Patil
Age 26 years, Occ. Unemployed
R/o Vivekanand Colony, Kargaon Road,
Chalisgaon, Dist. Jalgaon.

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2
09 Sandip S/o Sidheshwar Jitkar
Age 27 years, Occ. nil
R/o Mukundwadi, Aurangabad

10 Rahul S/o Anandrao Patil
Age 25 years, Occ. Nil
R/o Vivekanand Colony,
Kargaon Road, Chalisgaon
Dist. Jalgaon

11 Imran Khan Mjid Khan Pathan
Age 26 years, occ. nil
R/o Girnar Colony, Bhadgaon
Tq. Bhadgaon, Dist. Jalgaon

12 Amol S/o Gajanan Patil
age 29 years, occ. nil
R/o Korala Bajar, Tq. Motala
Dist. Buldhana

13 Ashish S/o Bhagwan Shinde
Age 20 years, Occ. nil
R/o Mehekar, Tq. Mehekar
Dist. Buldhana

14 Gautam s/o Sudama Kharat
Age 29 years, Occ. Nil
R/o Anjani, Tq. Mehekar
Dist. Buldhana

15 Vinod S/o Shmrao Chandanshiv
Age 22 years, occ. nil
R/o Anjani, Tq. Mehekar
Dist. Buldhana

16 Umaji S/o Satwaji Phole
Age 26 years, Occ. Nil
R/o Talhari, Tq. Kinwat
Dist. Nanded

17 Keshav S/o Sadashiv Shirade,
Age 26 years, Occ. Nil
R/o Ekghari, Post Savna
Tq. Himayatnagar, Dist. Nanded

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3
18 Kalyani D/o Chandrakant Jadhav
Age 27 years, occ. Nil
R/o Rangar Galli, Gulmandi
Tq. & Dist. Aurangabad.

19 Gajanan S/o Suryakant Kande
Age 29 years, Occ. Nil
R/o Ramnagar, Police Colony
Tq. & Dist. Jalna.

20 Ravindra S/o Bhausaheb Pathare
Age 29 years, Occ. Nil
R/o Sataraparisar,
Tq. & Dist. Aurangabad

21 Kantaram S/o Gorakshnath Pawar
Age 26 years, Oc. Nil
R/o Kalegaon, Tq. & Dist. Beed

22 Yogesh S/o Rajaram Rasal
Age 23 years, Occ. Nil
R/o Bhanupwadi, Post Raymoha
Tq. Shiroor Kasar, Dist. Beed

23 Sunita d/o Vishwanathrao Mali
Age 28 years, Occ. Nil
R/o Pethwada, Tq. Kandhar, Dist. Nanded

24 Ananda S/o Jemnaji Jinke
Age 23 years, Occ. Nil
R/o Gadegao, Tq. Biloli, Dist. Nanded

25 Satish S/o Anandrao Patil
Age 25 yers, Occ. Unemployed
R/o Pangra, Tq. Kandhar, Dist. Nanded

26 Govind S/o Raghunath Chavan
Age 27 years, Occ. Unemployed

R/o Chidgiri, Tq. Bhokar, Dist. Nanded

27 Vishwanath S/o Shivshankar Swami
Age 22 years, Occ. Unemployed
R/o Lagaldood, Tq. Bhokar, Dist. Nanded

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4

28 Nagnath S/o Dnyanoba Pande
Age 26 years, Occ. Unemployed
R/o Dhanora Tq. Ahmedpur
Dist. Latur

29 Gajanan S/o Tukaram More
Age 27 years, Occ. Unemployed
R/o Panshewdi,
Tq. Kandhar, Dist. Nanded

30 Sachin S/o Yuvraj Shivre
Age 27 years, Occ. Unemployed
R/o Bhoot Mungli
Tq. Nilanga
Dist. Latur

31 Rajebhau s/o Sangram Paltwad
Age 25 years, Occ. unemployed
R/o Supa, Tq. Gangakhed
dist. Parbhani

32 Sanjiv S/o Bhikaji Gunjalkar
Age 27 years, Occ. unemployed
R/o Khudaj, Tq. Shengaon
Dist. Hingoli

33 Sainath S/o Pandurang Patale
Age 25 years, Occ. unemployed
R/o Kekat Umra,
Tq. & Dist. Washim

34 Gopal S/o Vasudev Hembade
Age 25 years, Occ. Unemployed
R/o Walana, Tq. Shengaon, Dist. Hingoli

35 Ishwar S/o Motiram Bamrule
Age 43 years, Occ. Unemployed
R/o Hastara, Tq. Hadgaon
Dist. Nanded

36 Kiran S/o Balaji Pimparwar
Age 23 years, Occ. Unemployed
R/o Wanjarwada
Tq. Jalkot Dist. Latur

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37 Pravin S/o Trembak Arakh
Age 25 years, Occ. Unemployed
R/o Savitribai Phule Nagar
Buldhana Dist. Buldhana

38 Dnyaneshwar S/o Sarjerao Jadhav
Age 23 years, Occ. Unemployed
R/o Dhekanmoha
Tq. & Dist. Beed

39 Pradip S/o Baburao Adhav
Age 27 years, Occ. Unemployed
R/o Borgaon
Tq. Loha, Dist. Nanded

40 Manoj S/o Devlal Bramhane
Age 29 years, Occ. Unemployed
R/o Manik Nagar, Tq. Sillod
Dist. Aurangabad

41 Kishor S/o Laxman Badgujar
Age 26 years, Occ. Unemployed
R/o Pimpalkhed, Tq. Bhadgaon
Dist. Jalgaon

42 Ganesh s/o Vitthal Mandurke,
age: 26 years, Occ: Unemployed,
R/o Wanjarwada, Tal.Jalkot,
District Latur.

43 Dnyanba s/o Kishan Paul,
age: 27, R/o Parbhani,
District Parbhani.

44 Ujwala d/o Bhimrao Bankar,
age: 30 years, Occ: Unemployed,
R/o Milind Nagar, Osmanpura,
Aurangabad, Tq. and District
Aurangabad.

45 Shankar s/o Manohar Yerawar,
age: 26 yaers, Occ: Unemployed,
R/o Dhaswadi, Post. Khandali,
Tql. Ahmedpur, District Latur.

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46 Nitin s/o Laxmanrao Murkute,
age: 23 years, Occ: Unemployed,
R/o Raiwadi, Tal. Chakur,
District Latur.

47 Savita d/o Bhausaheb Kadam,
age: 26 years, Occ: Unemployed,
R/o Arvi, Tq. & Dist. Parbhani.

48 Arjun Vasantrao Kendre,
age: 24 years, Occ: Unemployed,
R/o Kumbha (Kh), Tq.Udgir,
District Latur.

49 Raju s/o Eknath Thale,
age: 28 years, Occ: Unemployed,
R/o Chikalthana, Aurangabad,
District Aurangabad.

50 Gajanan s/o Gangaram Bamrule,
age: 27 years, Occ: Unemployed,
R/o Hastra, Tal. Hadgaon,
District Nanded.

51 Kavita d/o Jaywant Ghantewar,
age: 27 years, Occ: Unemployed,
R/o Gokul Nagar, Deglur,
District Nanded.

52 Rahul s/o Masu Aher,
age: 26 years, Occ: Unemployed,
R/o Umrad Jahagir, Tal. And
District Beed.

53 Bhagwan s/o Himatrao Pimple,
age: 28 years, Occ: Unemployed,
R/o Pangarkhede,
Tal & District Buldhana.

54 Renuka d/o Sanjay Jadhav,
age: 24 years, Occ: Unemployed,
R/o Soygaon, Tal. & District
Buldhana.

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55 Sagar s/o Ratnakar Sontakke,
age: 27, Occ: Nil, R/o N-11,
T.V.Centre, Hudco, Aurangabad,
District Aurangabad.

56 Rahul s/o Gangadhar Kasbe,
age: 31 years, Occ: Nil,
R/o Manishnagar, Waluj,
Tal. Gangapur, District Aurangabad.

57 Vinod s/o Rupchand Nimrat,
age: 27 years, Occ: Nil,
R/o Surewadi, Harsul, Aurangabad,
District Auragabad. ... Petitioners

VERSUS

01 Union of India,
through the Secretary to Ministry of Posts,
Communications & Information
Technology, Delhi.

02 The Chief Post Master General,
Maharashtra Circle,
Mumbai 400 001.

03 The Assistant Director,
Postal Services (Recruitment),
Maharashtra Circle, Mumbai. ... Respondents

..
Shri. P. M. Shah, Sr. Counsel i/b Dr. Swapnil D. Tawshikar, advocate
for the petitioners.
Shri. Anil Singh, Addl. Solicitor General of India with Shri. Bhushan
Kulkarni, St. Counsel for respondents No. 1 to 3
..
WITH

WRIT PETITION NO.30 OF 2017

01 Bhagwan s/o Dhondiba Ghuge,
age: 30 years, Occ: Nil,
R/o At Asola, Post_Kawada,
Tq. Jintur, District Parbhani.

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02 Vishwanath s/o Wamanrao Ghogare,
age: 30 years, Occ: Nil,
R/o At Karanji, Post Bamani Bk.,
Tq. & District Parbhani.

03 Chetan s/o Ashok Sonawane,
age: 25 years, Occ: Unemployed,
R/o Bhakshi Nagar, Shanti Nagar,
Satana Rural, Tq. Satana,
District Nashik.

04 Ganesh s/o Laxman Gend,
age: 31 years, Occ:
R/o At Post Jalgaon Galhe,
Tq. Malegaon 423 202,
District Nashik.

05 Dinesh s/o Keda Shinde,
age: 27 years, Occ: Nil,
R/o Plot No.103/1, Near
Grampanchayat Office,
Ajmir Saudanane, Dist.Nashik.

06 Sanket s/o Ashok Sonawane,
age: 22 years, Occ: Nil, R/o Bakshi Road,
Suyog Colony, Shanti nagar, Satana,
Baglan, Tal.Satana, Dist. Nashik.

07 Pandarinath s/o Ratan Mandawade,
age: 26 years, Occ: Nil, R/o Chaugaon
Road, Mo.Po. Chaugaon, Chaugaon,
Tal. and District Nashik.

08 Dhananjay s/o Keshav Gosavi,
age: 28 years, Occ: unemployed,
R/o H.No.2116, Bhakshi Rd,
Sharad Nagar, Near Water Tank,
Satana, Tal. Baglan, Dist.Nashik.

09 Manoj s/o Raghunath Hivale,
age: 25, Occ: Nil, R/o At Veluk,
Post Washala, Tal.Shahapur,
District Thane, Shahapur.

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10 Sachin s/o Keval Patil,
age: 27, Occ: Nil, R/o Room No.202,
Ganesh Krupa Building No.1,
Davale Nagar Pada No.3, Lokmanya
Nagar, Thane West, District Thane.

11 Dipak s/o Bharat Sonawane,
age: 28 years, Occ: Nill, R/o At Post
Chinchwar, Tal. Dhule, District Dhule.

12 Visal s/o Ashok Dungahu,
age: 23 years, Occ: Nil, R/o At
Pimipalkhanta, Tal. Jafrabad,
District Jalna.
13 Vishal s/o Sanjay Wakchaure,
age: 25 years, Occ: Nil, R/o At Post
Zarekathi, Tal. Sangamner,
District Ahmednagar.

14 Prasad s/o Dilip Gosavi,
age: 25 years, Occ: Nil,
R/o 3, Samrudha Residency,
Ramnagar, Indiranagar,
Nashik, District Nashik.

15 Vilas s/o Sakharam Nirgude,
age: 28 years, Occ: Nil,
R/o Chehedi Pumpting Station
Road, Near Hanuman Mandir
Nashik Road, District Nashik.

16 Ankush s/o Dnyaneshwar Kapadi,
age: 29 years, Occ: Nil, R/o
At Post Pimpalgaon Nipani,
Tq. Niphad, District Nashik.

17 Nilesh s/o Prakash Patil,
age: 27 years, Occ: Nil, R/o At Post
Vidyasagar Colony, Sindhkheda,
District Dhule.

18 Manisha w/o Balu Sonawane,
age: 29 years, Occ: Nil,
R/o 20, Madhuban Housing
Society, Kathe Lane, Near Datta

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Mandir, Dwarka, District Nashik.

19 Virad s/o Sanjay Salvi,
age: 24 years, Occ: Nil,
R/o Suman Co-op. Housing Society,
Kopar Cross Road, Near Jain
Mandir, Dombivli West, Dombivli,
District Thane.

20 Ashwin s/o Bhaskar Sonone,
age: 31 years, Occ: Nil,
R/o Vadaji, District Buldhana.

21 Yeshwant s/o Karbhari Sonawane,
age: 28 years, Occ: Nil, R/o
Pimpleshwar Road, Krushna Colony,
Baglan, Satana, District Nashik.

22 Pritul s/o Ramdas Patil,
age: 29 years, Occ: Nil, R/o 55/3,
Desaipura, near Shreeji Hospital,
Nandurbar, District Nandurbar.

23 Samadhan s/o Nimba Pawar,
age: 25 years, Occ: Nil, R/o At
Devlane, Po: Ajmir Saudhana,
Tal. Baglan, District Nashik.

24 Sandeep s/o Bhau Aher,
age: 26 years, Occ: Nil,
R/o NA Sawant Marg, Colaba
Fire Brigade, Room No.20,
near Sasoon Dock, Colaba, Mumbai.

25 Ajitkumar s/o Dhondiram Lokhande,
age: 31 years, Occ: unemployed,
R/o Ramchandra Patil Chawl,
Gandhi Nagar No.2, Mulund
Goregaon, Link Road,
Mulund West,Mumbai.

26 Nilesh s/o Subhash Wagh,
age: 24 years, Occ: unemployed,
R/o Mali Wada, Maharashtra Bank,

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Javad, Bhadne, District Dhule.

27 Rushikesh s/o Daulat Pagar,
age: 27 years, Occ: unemployed,
R/o Pdp nagar, Thengoda, Thengode,
District Nashik.

28 Sandip s/o Tukaram Madhe,
age: 28 years, Occ: unemployed,
R/o Post Chindchodi, Tal. Akole,
near Vithal Mandi, Kothrud,
Bhandardhara, Rajur, District
Ahmednagar.

29 Gorakh s/o Suryabhan Sanap,
age: 27 years, Occ: unemployed,
R/o Pachore Bk, Pachore Bk,
Niphad, District Nashik.

30 Vilas s/o Bhaskar Hirale,
age: 27 years, Occ: unemployed,
R/o Somthan Desh, Somthandesh,
District Nashik.

31 Uday s/o Krushna Yesare,
age: 26 years, Occ: unemployed,
R/o B/8, Shree Apartment,
Pokharan Road, Behind Shivsena
Shakha, Khopat, Thane,
District Thane.

32 Pranaykumar s/o Sitaram Sudrpam,
age: 28 years, Occ: unemployed,
R/o Near Shitla Mata Mandir,
B/304, Dhanlaxmi, Co. Hou. Soc.
Mohilli Village, Sakinaka, Mumbai.

33 Vishnu s/o Manchakrao Bachate,
age: 22 years, Occ: unemployed,
R/o At Kapsi Post, Kerwadi,
Tq. Palam, District Parbhani.

34 Gulab s/o Gangadhar Pandhare,
age: 26 years, Occ: unemployed,

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R/o At Kothale Posegaon,
Tq.Naigaon Kh. District Nanded.

35 Ankosh s/o Nyinbakarao Shinde,
age: 20 years, Occ: unemployed,
R/o At Po. Babhal, Tal.Kalamnuri
Babhali, District Hingoli.

36 Pramod s/o Madhukar Kale,
age: 27 years, Occ: unemployed,
R/o Sai nagar, Ram Nagar, Jalna,
Near Nilesh Kirana, District Jalna.

37 Amol s/o Vishnu Bargaje,
age: 25 years, Occ: unemployed,
R/o At Post Piimpalner, Tal.Shirur,
(Ka), District Beed.

38 Ramkisan s/o Banshi Chavan,
age: 24 years, Occ: unemployed,
R/o At Golegaon, Post Jategaon,
Tal. Georai, District Beed.

39 Rophan s/o Ashwaling Salappa,
age: 26 years, Occ: unemployed,
R/o Shiv Prasad Sadan,
Adarsh Nagar, DP Road, Dist.Beed.

40 Akshay s/o Sanjay Sonawne,
age: 20 years, Occ: unemployed,
R/o Jawahar Colony Road,
Vishnu Nagar, V/A-5, Aurangabad.

41 Yogesh s/o Ramkrushna Ghuge,
age: 28 years, Occ: unemployed,
R/o At Mehagaon, Post Wasadi,
Tal. Kannad, District Aurangabad.

42 Sachin s/o Dattatraya Sonawane,
age: major, R/o Shriram Colony,
Hiwarkheda Road, Tal. Kannad,
District Aurangabad.

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43 Kailash s/o Sheshrao Bhise,
age: major, Occ: unemployed,
R/o At Sabalkheda, Post Palsi,
Tal. Sengaon, District Hingoli.

44 Gaurav s/o Vilas Khoje,
age: 30 years, Occ: unemployed,
R/o Virbhadra Nagar,
Mu.Po. Sakur, Sakur,
District Ahmednagar.

45 Pravin s/o Sheshrdao Kadam,
age: major, Occ: unemployed,
R/o At Po. Chitali, Tal. Pathardi,
District Ahmednagar.

46 Atul s/o Prakash Pardeshi,
age: 26 years, Occ: unemployed,
R/o Near Bhajani Math, Igatpuri,
District Nashik.

47 Ganesh s/o Shivaji Jadhav,
age: 31 years, Occ: unemployed,
R/o N.S.P. College, Pimpalner,
Pimpalner, District Dhule.

48 Shankar s/o Bhaurav Dhumase,
age: 28 years, Occ: unemployed,
R/o Vitewadi, Post Pale, Tq.Kalwan,
Pale, District Nashik.

49 Shivshankar s/o Namdeo Giri,
age: 23 years, Occ: unemployed,
R/o At Post Siddheshwar, Tq.Aundha
Nagnath, District Hingoli.

50 Pramod s/o Dilip Wanare,
age: 29 years, Occ: unemployed,
R/o Tayade Coloony, Khamgaon,
Tq.Khamgaon, Dist. Buldhana.

51 Nitesh s/o Shivnath Jadhav,
age: major, Occ: unemployed,
R/o Yashwant Colony Chowk No.4,

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Room No.1, Ganesh Marg, Vikroli,
(East) 400 083.

52 Gajanan s/o Tukaram More,
age: 27 years, Occ: unemployed,
R/o Panshevadi, Tal. Kandhar,
District Nanded.

53 Govardhan s/o Ramrao Tungar,
age: 26 years, Occ: Nil,
R/o Chanyakyapuri, B.C. Wing,
Flat No.6, Peth Road, Makhamalabad
Naka, Nashik, District Nashik.

54 Avinash s/o Bhagwan Kapse,
age: major, Occ: unemployed,
R/o Jawalgaon, Tal. Barshi,
District Solapur.

55 Imran Khan Gafar Khan,
age: major, Occ: Nil, R/o Masoom
Colony, Darga Road, Parbhani,
District Parbhani.

56 Hanmant s/o Nagnath Linganwad,
age; 26 years, Occ: Nil,
R/o Gaglegaon,
Tal. Biloli, District Hingoli. ...Petitioners

Versus

01 Union of India,
through the Secretary to
Ministry of Posts,
Communications & Information
Technology, Delhi.

02 The Chief Post Master General,
Maharashtra Circle,
Mumbai 400 001.

03 The Assistant Director,
Postal Services (Recruitment),
Maharashtra Circle, Mumbai. ...Respondents

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15
..
Dr. Swapnil D. Tawshikar, advocate for the petitioners.
Shri. Anil Singh, Addl. Solicitor General of India with Shri. Bhushan
Kulkarni, St. Counsel for respondents No. 1 to 3
..

WITH
CIVIL APPLICTION NO. 14216 OF 2017
IN
WRIT PETITION NO. 30 OF 2017

WITH
WRIT PETITION NO.9447 OF 2017

01 Bharat s/o Baliram Chavan,
age: 30 years, Occ: Nil,
R/o Pimpalgaon Kajale Tanda,
Tq. Jintur, District Parbhani.

02 Amruta s/o Vasantrao Rathod,
age: 28 years, Occ: Nil,
R/o Shrihari Nagar, Vasmat Road,
Parbhani, Tq. & District Parbhani.

03 Nilesh s/o Rambhau Badhe,
age: 27 years, Occ: Nil, R/o At Post
Nandura, Malkapur Road,
Near Civil Court, Nandura,
Tal.Nandura, District Buldhana.

04 Shabbir s/o Nuruddin Mulla,
age: 25 years, Occ: Nil,
R/o Banajgai, Tal. Akkalkot,
District Solapur.

05 Nikhil s/o Bhimrao Shendre,
age: 25 years, Occ: Nil, R/o
At Post Shiroli, Tal. Ghanji,
District Yavatmal.

06 Dipak s/o Dnyandeo Mahakal,
age: 25 years, Occ: Unemployed,
R/o Durga Nagar, Tal. Nandura,
District Buldhana.

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07 Sachin s/o Madhukar Satao,
age: 25 years, Occ: Nil, R/o Durga
Nagar, Malkapur Road, Nandura,
Tal. Nandura, Dist. Buldhana.

08 Rajesh s/o Shravan Ghode,
age: 25 years, Occ: Nil,
R/o C.G.S. Colony, Sector C,
Bhandup East, Mumbai,
Mumbai 400 042.

09 Santosh s/o Raosaheb Sirsat,
age: 25 years, Occ: Unemployed,
R/o Walewadi, Tal. Ambejogai,
District Beed.

10 Dnyaneshwar s/o Shivajirao Sirsat,
age: 24 years, Occ: Unemployed,
R/o Walewadi, Tal. Ambejogai,
District Beed.

11 Vyankat s/o Vaijanath Lahane,
age: 26 years, Occ: Unemployed,
R/o Walewadi, Tq.Ambejogai,
District Beed.

12 Jayesh s/o Ashok Waghmare,
age: 25 years, Occ: Unemployed,
R/o Shivlani Kothal, Tq.Nilanga,
District Latur.

13 Santosh s/o Ambadas Shinde,
age: 25 years, Occ: Unemployed,
R/o Wanjarwadi, Tal.Nandgaon,
District Nashik.

14 Umesh s/o Eknath Kakad,
age: 26 years, Occ: Nil,
R/o At Chikhla, Post Pimpri
Khandare, Tal. Lonar,
District Buldhana. ... Petitioners

VERSUS

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17
01 Union of India,
through the Secretary to
Ministry of Posts,
Communications & Information
Technology, Delhi.

02 The Chief Post Master General,
Maharashtra Circle,
Mumbai 400 001.

03 The Assistant Director,
Postal Services (Recruitment),
Maharashtra Circle, Mumbai. ...Respondents

..
Dr. Swapnil D. Tawshikar, advocate for the petitioners.
Shri. Anil Singh, Addl. Solicitor General of India with Shri. Bhushan
Kulkarni, St. Counsel for respondents No. 1 to 3
..

WITH
CIVIL APPLICATION NO. 14235 OF 17
IN
WRIT PETITION NO. 9447 OF 2017

WITH
WRIT PETITION NO.9837 OF 2017

01 Rahul s/o Anantrao Kale,
age: 24 years, Occ: Nil,
R/o 5/3/260, Sunjay Nagar,
Smashan Maroti Road, Line No.
C-10, Aurangabad.

02 Sandeep s/o Dnyandeo Bansode,
age: 23 years, Occ: Nil, R/o Durga
Mandir, At Post Doiphode Wadi,
Singav (Jahagirdar), Taluka
Deaulgaonraja, Dist.Buldhana.

03 Bhushan s/o Gopichand Baviskar,
age: 21 years, Occ: Nil,
R/o At Post Mukti, Galli No.02,
Ram Mandir Chowk, Dhule.

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18
04 Varsha s/o Uttam Jadhav,
age: 27 years, Occ: Nil,
R/o BDD Chawl, No.60, Room
No.25, Dr.G.M.Bhosale Marg,
Worli, Maharashtra

05 Vithal s/o Govind Panchal,
age: 29 years, Occ: Nil,
R/o National Association for
the Blinds, 11-12,
Khan Abdul Gaffar Khan Road,
Worli Seaface, Mumbai-400 030.

06 Sandeep s/o Bhausaheb Tile,
age: 29 years, Occ: Nil, R/o At Post
Dhamori, Tq. Kopargaon,
District Ahmednagar.

07 Vasanta s/o Dayaram Dahake,
age: 29 years, Occ: Nil,
R/o Opposite Electric Pol,
Shivani, Titur Kuhi, Nagpur.

08 Jypal s/o Dinkar Shrirame,
age: 24 years, Occ: Nil, R/o At Post
Khutala, Tq. Chimur,
District Chandrapur 442 904.

09 Devanand s/o Bhiva Raserao,
age: 30 years, Occ: Nil,
R/o At Shingoli, Post Tirhe,
Tq. Mohol, District Solapur 413 002.

10 Amol s/o Pandurang Kathar,
age: 24 years, Occ: Nil,
R/o Line No.07,
Plot No.15/16, Jadhavwadi
(Sarvewedi), Harsool,
Aurangabad 431 005.

11 Shrikant s/o Ganesh Gangamwar,
age: 26 years, Occ: Nil, R/o
At Post Bhokar, District Nanded-
431 801.

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19
12 Vinod s/o Kartik Shende,
age: 24 years, Occ: Nil, R/o
at Manjara (Begde), Post Khadasangi,
Tq.Majara Begde,
District Chandrapur 442 906.

13 Anita d/o Arun Patil,
age: 28 years, Occ: Nil,
R/o At Post Patil Vada, Shirpur,
Tq. & District Dhule.

14 Changdev s/o Pandurang Choure,
age: 32 years, Occ: Nil,
R/o At Sarukwadi, Post :
Chincholimali, Tq. Kaij,
District Beed 431 123.

15 Varsha s/o Sanjay Patil,
age: 24 years, Occ: Nil,
R/o At Post Ravanje, Tq.Yarandol,
District Jalgaon 425 103.

16 Rajendra s/o Ramdas Shinde,
age: 29 years, Occ: Nil,
R/o At Alme, Post: Ballalwadi,
Near Muktadevi Temple,
Pune 410 502. ... Petitioners

VERSUS

01 Union of India,
through the Secretary to
Ministry of Posts,
Communications & Information
Technology, Delhi.

02 The Chief Post Master General,
Maharashtra Circle,
Mumbai 400 001.

03 The Assistant Director,
Postal Services (Recruitment),
Maharashtra Circle, Mumbai. ...Respondents

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20
..
Dr. Swapnil D. Tawshikar, advocate for the petitioners.
Shri. Anil Singh, Addl. Solicitor General of India with Shri. Bhushan
Kulkarni, St. Counsel for respondents No. 1 to 3
..

WITH
CIVIL APPLICATION NO. 14231 OF 2017
IN
WRIT PEETITION NO. 9837 OF 2017

WITH

WRIT PETITION NO.9910 OF 2017

01 Amit s/o Rajendra Dongre,
age: 26 years, Occ: Nil,
R/o Ausa, Tq. Ausa,
District Latur.

02 Annasaheb s/o Shivaji Mali,
age: 27 years, Occ: Nil,
R/o Dhanuri, Tq. Lohara,
District Osmanabad. ... Petitioners

VERSUS

01 Union of India,
through the Secretary to
Ministry of Posts,
Communications & Information
Technology, Delhi.

02 The Chief Post Master General,
Maharashtra Circle,
Mumbai 400 001.

03 The Assistant Director,
Postal Services (Recruitment),
Maharashtra Circle, Mumbai.

04 Senior Superintendent of Post
Offices, Solapur Division, Solapur,
District Solapur. ... Respondents

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21
..
Shri. Shrihari Aney, Sr. Counsel with Shri. Surendra Pardhy and
Shri. Kuldeepsing K. Kamare i/b Shaikh Mazhar A. Jahagirdar,
Advocate for the petitioners.
Shri. Anil Singh, Addl. Solicitor General of India with Shri. Bhushan
Kulkarni, St. Counsel for respondents No. 1 to 3
..

WITH
CIVIL APPLICATION NO. 14233 OF 2017
IN
WRIT PETITION NO. 9910 OF 2017

WITH

WRIT PETITION NO. 10373 OF 2017

01 Shivpratap S/o Ganpat Jadhwar,
Age : Major, Occu. Nil,
R/o. SRTR Medical College Campus,
In front of Sinhgad Colony, Ambajogai,
Tq. Ambajogai, District Beed.

02 Nitin S/o Laxman Sangekar,
Age : 25 years, Occu. Nil,
R/o. Pachalegaon, Tq. Jintur,
District Parbhani.

03 Ramdas S/o Hulppa Papaji,
Age : Major, Occu. Nil,
R/o. At Post Alandi, Tq. Biloli, District Nanded.

04 Raju S/o Raghunath Bhurkade,
Age : Major, Occu. Nil,
R/o. At Post Mungala, Tq. Malegaon,
District Washim.

05 Ganesh S/o Motiram Waghmare,
Age : Major, Occu. Nil,
R/o. House No. 1-21/6, Shriramnagar, CIDCO,
N-2, Post Mukundwadi, Aurangabad.

06 Dipak S/o Dadasaheb Pandit,
Age : 28 years, Occu. Unemployed,

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R/o. Tupewadi, Tq. Paithan, District Aurangabad.

07 Raju S/o Ratan Mhaske,
Age : Major, Occu. Nil,
R/o. At Post Dongaon, Tq. Gangapur,
District Aurangabad.

08 Sandeep S/o Dnyaneshwar Khute,
Age : Major, Occu. Nil,
R/o. At Bhingare, Post Nimgaon (Madh),
Tq. Yeola, District Nashik.

09 Dilkhush S/o Chhaburao Kokate,
Age : Major, Occu. Nil,
R/o. C/o. C. D. Kokate,
At Satali, Post Chichondi, Tq. Yeola,
District Nashik.

10 Nandkishor S/o Shravan Wankhade,
Age : Major, Occu. Nil,
R/o. Bhogalsingnagar No. 2,
Behind Buddha Mandir Wankhede Galli,
Janeko Society, Goregaon (W), Mumbai.

11 Nagnath S/o Hanumantrao Bhujbal,
Age : 24 years, Occu. Nil,
R/o. At Porjawala, Post Majlapur, Tq. Parbhani,
District Parbhani.

12 Yogiraj S/o Rakhama Benke,
Age : Major, Occu. Nil, R/o.

13 Mahendra S/o Maruti Musale,
Age : 27 years, Occu. Nil,
R/o. At Post Padoli, Tq. Kalamb,
District Osmanabad.

14 Shrikant S/o Panditrao Borgaonkar,
Age : 29 years, Occu. Nil,
R/o. Ambika Colony, Somnathpur Road,
Udgir, Tq. Udgir, District Latur.

15 Mangesh S/o Prabhakar Kedare,
Age : 25 years, Occu. Nil,

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23

R/o. Police Head Quarter,
Line No. 1, Room No. 16, Near Old CBS,
Nashik, District Nashik.

16 Yash S/o Suryakant Magar,
Age : 23 years, Occu. Nil,
R/o. Mahadev Row House No. 4,
Behind Old Baba Sai Hotel,
More Hospital, Ambad Link Road,
Nashik.

17 Santosh S/o. Tanaji Shinde,
Age : 27 years, Occu. Nil,
R/o. B, 204, Krishna CH5, Sector 11,
Plot No. 35, Kamothe, Tq. Panvel,
District Raigad.

18 Sugatnand S/o Panjabrao Poharkar,
Age : 27 years, Occu. Nil,
R/o. 115, Babasaheb Sangludkar Nagar,
Banosa Daryapur, District Amravati,
Daryapur.

19 Sambhaji S/o Devidas Sangle,
Age : 22 years, Occu. Nil,
R/o. At Post Gutti, Tq. Jalkot,
District Latur.

20 Sharad S/o. Dhondiram Waghmare,
Age : 28 years, Occu. Nil,
R/o. At Post Bheta, Tq. Ausa,
District Latur. ... Petitioners

VERSUS

01 Union of India,
Through the Secretary to Ministry of Posts,
Communications & Information Technology, Delhi.

02 The Chief Post-Master General,
Maharashtra Circle, Mumbai - 400 001.

03 The Assistant Director,
Postal Services (Recruitment),

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Maharashtra Circle, Mumbai. ... Respondents

..
Dr. Swapnil D. Tawshikar, advocate for the petitioners.
Shri. Anil Singh, Addl. Solicitor General of India with Shri. Bhushan
Kulkarni, St. Counsel for respondents No. 1 to 3
..

WITH

WRIT PETITION NO. 11801 OF 2017

01 Maroti S/o Devidas Kalyankar,
Age : 26 years, Occu. Nil,
R/o. C. S. Kalyankar, Khadakpura, Hingoli,
District Hingoli.

02 Nitin S/o Nivrathi Salve,
Age : 32 years, Occu. Unemployed,
Sujata Colony, Old Pedgaon Road, Parbhani,
District Parbhani.

03 Someshwar S/o Ganeshrao Sawale,
Age : 30 years, Occu. Nil,
R/o. At Post Shingnapur, Tq. Daryapur,
District Amravati.

04 Sachin S/o. Madhav Gosavi,
Age : 30 years, Occu. Nil,
R/o. Kalparaj Housing Society,
Gulmohar Nagar, Mhasrul, Nashik, District Nashik.

05 Sachin S/o Kishanrao Bukkawar,
Age : 28 years, Occu. Nil,
R/o. Sadhna Nagar, Deglur,
Tq. Deglur, District Nanded.

06 Shaikh Akhil S/o Shaikh Shadulla,
Age : 26 years, Occu. Nil,
R/o. Line Galli, Degav Road, Deglur,
Tq. Deglur, District Nanded.

07 Ashish S/o Ashok Borhade,
Age : 28 years, Occu. Nil,

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25

R/o. Chicbunder, BIT Chawl No. 5,
3rd Floor, Room No. 57, Dongri,
Mumbai.

08 Ajay S/o. Arunrao Dhamankar
Age : 25 years, Occu. Nil,
R/o. Vivekanand Ward No. 1,
Borban, Tq. Umarkhed, District Yavatmal.

09 Pundalik S/o Banku Gotale,
Age : 25 years, Occu. Nil,
R/o. Wanjarwada, Tq. Jalkot,
District Latur.

10 Sudhakar S/o Babu Rathod,
Age : 25 years, Occu. Nil,
R/o. Varwanti Tanda, Tq. Ahmedpur,
District Latur. ... Petitioners

VERSUS

01 Union of India,
Through the Secretary to Ministry of Posts,
Communications & Information Technology,
Delhi.

02 The Chief Post-Master General,
Maharashtra Circle, Mumbai - 400 001.

03 The Assistant Director,
Postal Services (Recruitment),
Maharashtra Circle, Mumbai. ... Respondents

..
Dr. Swapnil D. Tawshikar, advocate for the petitioners.
Shri. Anil Singh, Addl. Solicitor General of India with Shri. Bhushan
Kulkarni, St. Counsel for respondents No. 1 to 3
..
WITH
WRIT PETITION NO. 13060 OF 2017

01 Babasaheb s/o Dnyanoba Gaikwad
Age 30 years, Occu: Nil,
R/o At Post Ahmedpur, Siddharth Colony,

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26

Sai Nagar, Near MG College,
Ahmedpur, Dist. Latur

02 Sharadkumar Baliram Suryawanshi
Age 27 years, Occu: Nil,
R/o M.G.Road, Gaikwad Colony,
Sai Nagar, Ahmedpur, Dist. Latur

03 Sanjay s/o Raghunath Durge,
Age -years, Occu: Nil,
R/o C/o Sambhaji Sonkamble,
Near Lakshmi Talkies, Thodga Road, Ahmedpur

04 Vilas s/o Ganesh Palaskar,
Age 29 years, Occu: Nil R/o Jawahar Ward,
Neaar Agrawal Swami, Nag Chowk,
Umarkhed 445206

05 Smt.Apeksha Rajendrasing Rajput,
Age 24 years, Occu:Nil R/o Plot No.10/3,
Sadguru Nagar, Behind CK Steel, Buldhana Road,
Malkapur 443 101

06 Govind s/o Narayan Pawar,
Age 27 yers, Occu: Nil
R/o Rampuri, Tq. Georai Dist.Beed

VERSUS
01 Union of India,
Through the Secretary to Ministry of Posts,
Communications &Information Technology,
Delhi.

02 The Chief Post-Master General,
Maharashtra Circle, Mumbai - 400 001.

03 The Assistant Director,
Postal Services (Recruitment),
Maharashtra Circle, Mumbai. ...Respondents

..
Shri. V. J. Dixit, Sr. Counsel i/b Shaikh Mazhar A. Jahagirdar,
advocate for the petitioners.

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27

Shri. Anil Singh, Addl. Solicitor General of India with Shri. Bhushan
Kulkarni, St. Counsel for respondents No. 1 to 3
..
WITH
CONTEMPT PETITION NO. 663 OF 2017
IN
WRIT PETITION NO. 9837 OF 2017

01] Changdev S/o. Pandurang Choure,
Age : 32 years, occu. Nil,
R/o. At Sarukwadi, Post-Chincholimali,
Tq. Kaij, Dist. Beed.

02] Sandeep s/o Dnyandeo Bansode,
age: 23 years, Occ: Nil, R/o Durga
Mandir, At Post Doiphode Wadi,
Singav (Jahagirdar), Taluka
Deaulgaonraja, Dist.Buldhana.

03] Bhushan s/o Gopichand Baviskar,
age: 21 years, Occ: Nil,
R/o At Post Mukti, Galli No.02,
Ram Mandir Chowk, Dhule.

04] Varsha s/o Uttam Jadhav,
age: 27 years, Occ: Nil,
R/o BDD Chawl, No.60, Room
No.25, Dr.G.M.Bhosale Marg,
Worli, Maharashtra

05] Vithal s/o Govind Panchal,
age: 29 years, Occ: Nil,
R/o National Association for the Blinds, 1112,
Khan Abdul Gaffar Khan Road,
Worli Seaface, Mumbai400 030.

06] Sandeep s/o Bhausaheb Tile,
age: 29 years, Occ: Nil, R/o At Post
Dhamori, Tq. Kopargaon, District Ahmednagar.

07] Vasanta s/o Dayaram Dahake,
age: 29 years, Occ: Nil,
R/o Opposite Electric Pol,
Shivani, Titur Kuhi, Nagpur.

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28
08] Jypal s/o Dinkar Shrirame,
age: 24 years, Occ: Nil, R/o At Post
Khutala, Tq. Chimur,
District Chandrapur 442 904.

09] Devanand s/o Bhiva Raserao,
age: 30 years, Occ: Nil,
R/o At Shingoli, Post Tirhe,
Tq. Mohol, District Solapur 413 002.

10] Vinod s/o Kartik Shende,
age: 24 years, Occ: Nil, R/o
at Manjara (Begde), Post Khadasangi,
Tq.Majara Begde, District Chandrapur 442 906.

11] Rajendra S/o. Ramdas Shinde,
Age : 29 years, occu. Nil, R/o. At Alme,
Post ballalwadi, near Muktadevi Temple,
Pune.

..
Dr. Swapnil D. Tawshikar, advocate for the petitioners.
Shri. Anil Singh, Addl. Solicitor General of India with Shri. Bhushan
Kulkarni, St. Counsel for respondents No. 1 to 3
..

CORAM : S. V. GANGAPURWALA
AND
A. M. DHAVALE, JJ.

DATE OF RESERVING THE JUDGMENT : 28th FEBRUARY, 2019.
DATE OF PRONOUNCING THE JUDGMENT : 3rd MAY, 2019

JUDGMENT [PER A. M. DHAVALE, J.] :-

1. The petitioners in these eight petitions assail the order of

Assistant Director Postal Services (Recruitment) dated 25.11.2016

whereby examination for the post of Postman/Mail Guard held on

29.03.2015 and examination for the post of Multi Tasking Staff

(MTS) held on 03.05.2015 were cancelled. The petitioners also seek

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29

directions to respondent No.2- The Chief Post Master General to

restore the selection list declared earlier as successful candidates.

2. Following facts are not in dispute. By the notification dated

24.01.2015, the Chief Postmaster General invited on-line applications

for 1701 posts of Postman/Mail Guard and 733 posts of M.T.S. to fill

up vacancies created in 2009 to 2014. Large number of applications

were received. Details of the applications received, admit cards

uploaded and the candidates appeared for examination are as

follows:

Particulars Postman/ Mail M.T.S.
Guard
Total Applications received : 575383 213552
Total admit cards uploaded : 463949 173064
Total No. of candidates appeared for examination : 373979 119212

3. Work of recruitment process was assigned to M/s Manipal

Technology Ltd., on end to end basis. After scrutiny, the examination

for the post of Postman/Mail guard was conducted on 29.03.2015

and for the post of M.T.S. on 03.05.2015. The outsourcing agency

communicated the result to the respondents on 07.01.2016. Then

there was manual random evaluation of 1% papers. The

discrepancies noted were brought to the notice of outsourcing agency

on 16.02.2016. Those were rectified on 03.03.2016. The final result

was declared on 21.03.2016 and those sheets of the selected

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candidates were handed over to all the divisions for completing pre-

appointment formalities. 1680 candidates for Postman, 21

candidates for post of Mail Guards and 733 for MTS were selected.

Results were declared by the outsourcing agency and were published

by the respondents on 21.03.2016. Pursuant thereto the appointment

orders were issued to 395 candidates (the department says 356) and

they had undergone medical examinations, character and

antecedents verifications, and training programme and had received

appointment orders and had joined their duties. Two petitioners in

Writ Petition No. 9910 of 2017 are such appointed candidates.

4. The remaining petitioners appeared before the respondents for

pre-appointment formalities. Letters of medical examination were

also issued, character and antecedents verification was undertaken

and the notices for verification of documents were issued on

21.11.2016.

5. During the pre-appointment formalities, Amravati Division

reported on 29.04.2016 the irregularities in the selection of one

Hardip Singh. He had given his permanent address at Satara, but he

was not found there. When He was contacted on his given mobile

No., he appeared and disclosed that he was from Simla village in

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31

Haryana. His photograph and signature did not tally with the same

on the application form. He admitted that it was not his photograph

and his signature. The second permanent address was correct. The

admit card issued to him was also not having his photograph.

6. This was followed with another complaint from

Superintendent, Mumbai North Division, Kandivali dated 03.06.2016.

Till that stage there was no suspicion about malpractices and

irregularities. The Superintendent informed that out of 140

candidates appeared for further process, 40 had not appeared for

Marathi or Kokani examination in Class 10th exam. Their mother

tongue was different. Still, they had secured more than 80 % marks

in Marathi or Kokani i.e. 20 and above out of 25. They had secured

very less marks in their mother tongue in Hindi in 10 th examination.

The marks of unsuccessful candidates having mother tongue Marathi

were less than these candidates. Similar irregularities and suspicious

circumstances were found in respect of marks in Maths and English.

Those who had secured poor marks in math in 10th std. exam scored

excellent marks in the recruitment process in maths. For example,

one candidate had secured only one mark in 10 th Std. in maths and

he got 100 % marks in the recruitment process in Maths. Similarly,

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another candidate, who had secured 12 marks in maths in 10 th Std.

Examination secured 100 marks in maths in recruitment process. In

respect of English, the candidates, who got very less marks around 10

% in 10th std. examination had secured around 68 % marks in

recruitment process. The list of such candidates was given. The

comparative study of the marks in SSC and marks in recruitment

process revealed that 7 candidates who had scored very low marks in

10th Std. examination had secured very high marks in recruitment

process more than those scored by clever students (who had secured

around 85% marks in SSC) in recruitment exams. In the light of these

complaints, the Department has decided to stay the process and

communicated not to issue appointment orders.

7. On the basis of the report showing the malpractices in the

examinations, the impugned decision to cancel the examinations and

hold fresh examinations and to terminate the appointed candidates

was taken on 25.11.2016.

8. Two petitioners in Writ Petition No.9910 of 2017, who

received appointment letters and were working on the posts have

challenged the decision of cancelling their appointments with

necessary modification in the prayers. Other successful candidates

who were waiting for appointment orders, filed all other petitions.

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9. After filing of the petitions, it was represented before this

Court that the facts in these cases were identical to the facts in the

case of Monu Tomar Vs. Union of India (Civil Appeal

No.10513/2016 decided on 13.07.2017), wherein the Apex Court

had directed that the persons suspected of having indulged in

malpractices in the examination could be identified and after

following the procedure, action can be taken against them. Entire

recruitment process should not be quashed. In Manu Tomar's case,

the Apex Court had directed to reinstate the candidates/appointees

who were not suspected of malpractices and to pay 50% back wages

to those who were actually appointed. Same course was adopted by

this Court in all these Writ Petitions by order dated 02.08.2017. The

same was challenged by the Union by filing Review petition. Review

was allowed by this Court on 04.05.2018 and the order dated

02.08.2017 was recalled.

10. The respondents had taken a stand that the petitioners have

alternate remedy as they can approach before the Central

Administrative Tribunal like several other candidates. This Court, on

1st November, 2018, in the light of above background, held that it

would not be appropriate now to relegate the petitioners to avail the

alternate remedy.

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34

11. Shri. P. M. Shah, Shri. V. J. Dixit, Shri. V. D. Salunke and

Shri. S. D. Tawshikar, the learned Counsels for the petitioners

submitted that there were no complaints whatsoever against the

petitioners before us regarding the malpractices. They also submitted

that there were no complaints of any serious nature in the

examination centres in Marathwada Region about irregularities or

malpractices. It is also argued that no malpractice or irregularities

were noticed at the time of holding the examinations. The

examinations were held under CCTV and Video Recording. At each

Centre, responsible officers of the Postal Department were

supervising and monitoring the examinations. The vigilance report

indicating irregularities and malpractices did not show that the entire

process of recruitment was tampered. These are individual cases of

candidates indulging in malpractices. Those candidates can be

identified, segregated and the chaff can be separated from the grains.

In the light of settled law in various Apex Court decisions, it was not

proper to cancel the entire examination and direct re-examination.

The petitioners belong to poor class. Most of them belong to socially

backward castes. Some of them had incurred loans. Some of them

had given up earlier service. Some of the petitioners were having

excellent academic record having secured more than 80 % marks at

the time of SSC or HSC examination. Their good marks in the

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35

examination cannot be doubted. Eleven petitioners in Contempt

Petition who are petitioners in Writ Petition No. 9837 of 2017 are

differently abled including vision impaired and hearing impaired. The

learned Counsel for the petitioners argued that the tainted candidates

may be appropriately dealt with. When the petitioners were not at

fault, it was improper to cancel their appointments or selections.

They also argued that the decision of the respondents to cancel the

examination has disastrous consequences. Huge money spent for

conducting examination belonging to the Public Exchequer is

squandered. Many vacancies in Postal Department are causing lot of

administrative inconvenience to both, the Departments as well as to

the police . The cancellation of the entire examination was not

justified on any count. They relied on number of Rulings, which will

be considered in due course. The petitioners in Writ Petition

No.9910/2017 were given appointment letters and have undergone

training and had received appointments while others were waiting

for appointment letters. They were not given any opportunity before

cancellation of the examination held. The principles of natural justice

were not followed. They have been punished for no fault on their

part.

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12. Per contra, Mr. Anil Singh, the learned Additional Solicitor

General of India challenged the maintainability of the writ on the

ground that,

(i) the selected candidates had no vested right and the
appointed candidates being probationers are not entitled to the
protection. They cannot invoke the writ jurisdiction.

(ii) Considering the magnitude of recruitment process, the
work was given to Manipal Technology Ltd. by outsourcing on end to
end basis. It was specifically agreed that the work was not to be
delegated to outsider by the Agent without the permission of the
Department, but still the Manipal Technology had delegated the work
to Chanakya Software. It was specifically agreed that OMR numbers
will be given to the candidates and the same set of questions would
be differently arranged in 4 different set of question papers. The type
of set of question papers A, B, C, D was to be shown on the answer
sheet and the papers were to be examined through computer without
manual intervention but it was not done in many cases thereby
automatic evaluation process by software by recognizing OMR sheet
was not possible. The answer sheets provided contained boxes for
numbers of 8 digits whereas many students were given numbers of 9
digits. The candidates were required to add one box to the number
for writings, the 9th digit of their number. Thus, this addition could
not have been accepted by the Software and human intervention or
manual evaluation is the most probable result, which was to be
prevented. This manual intervention is a serious irregularity in
the recruitment process. Mr. Anil Singh also relied on the
complaint of Kandivali Post Office and the vigilance report
dated 10.11.2016 and pointed out the various discrepancies noted

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37
by the Vigilance Team. He pointed out that many candidates who
were not having mother tongue Marathi or who did not appear
for Marathi or Konkani in SSC examination have secured
suspiciously high marks in Marathi subject in the recruitment
process. Similar is the case with the marks obtained by the
candidates in English and maths and overall marks as
compared to their performance and academic record at the 10 th
examination as detailed in the vigilance report. He also argued that
the Vigilance Team noted that many candidates had given common
mobile numbers, common E-mail address and common permanent
addresses. This was surprising as their places of residence were at
different stations and it became more suspicious as they have
given identical answers both right or wrong to most of the
questions. Similarity in such right or wrong answers was above 70%
in most of the cases and even up to 100 % in some cases. He also
argued that many successful candidates were residents of the States
other than Maharashtra and in spite of poor academic record,
some of them have secured excellent marks. Besides, there were
discrepancies in the identification of handwriting and signature of
the candidates when their handwriting and photograph at the time of
pre-appointment formalities were compared with the admit card or
the other documents. He pointed out that as many as 56 candidates
from Haryana were selected for the post of Postman/MTS. Besides,
the report shows that there was high percentage of successful
candidates from particular localities. He strenuously argued that it
was not a case where individuals indulging in irregularities could be
identified and separated and action could be taken against them. He
argued that the percentage of tainted candidates is extremely high.
Out of 2434 candidates selected, 1699+622=2321 candidates are
tainted.

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38

Sr. Allotted Division Committee Vigilance Tota
No. l

Sign Photo Variation Attendan Selected Attendan Candidat Those Common Common Sibling Common Common Poor Passed Passed Both
Variation Variation in ce Sheet Candidat ce Sheet es who have Mobile Email Communi Permanen Academic Both Exam but have
noticed by noticed by Signatur Not e found found belonging not No. given given at cation t Address Backgrou Exam- poor academic
the the e noticed Found Absent on without to Other studied at the the time Address (Other nd (Less 102 background-
Committee Committe by Attendan signature State (i.e. Marathi time of of (Other than than 50% candidate 102
members ee Vigilance ce Sheet of Other in Registrati Registrati than siblings) in SSC s have candidates
at the time Members Section candidate than Academic on on siblings) exam passed have passed
of at the time i.e. s Maharash but have both the both the
preappoint of Registrati mentione tra & scroed examinati examinations
ment preappoint on d on it Goa) as more ons i.e. i.e. Postman as
formalities ment Signatur and per than 15 Postman well as MTS
formalities e with without permanen marks as well as which were
OMR signature t address (60% MTS held on two
Signatur of the uploaded marks) which different dates
e Invigilato at the out of 25 were held Passed Both
r time of marks in on two Exam
Registrati Marathi different
on exam dates
condcute
d by the Passed Passed Both
Departme Both Exam but have
nt (based Exam poor academic
on background
candidate
s
attended
for
OMR preappoi
ntment
formalitie
s

1 AHMEDNAGAR 0 0 1 4 0 1 1 0 2 0 3 3 3 1 0 19
2 AKOLA 1 0 1 10 0 0 0 0 1 0 0 0 2 2 0 17

3 AMRAVATI 5 1 1 15 1 1 3 1 11 0 2 3 6 1 0 51
4 AURANGABAD 0 0 2 18 2 1 0 1 4 1 1 1 4 4 0 39

5 BEED 0 0 0 7 2 2 1 0 1 0 0 0 4 1 1 19
6 BHUSAWAL 0 0 0 7 3 2 2 0 0 0 0 0 1 1 0 16

7 BULDHANA 1 0 1 12 0 0 0 1 0 0 0 3 3 0 21

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Sr. Allotted Division Committee Vigilance Tota
No. l
Sign Photo Variation Attendan Selected Attendan Candidat Those Common Common Sibling Common Common Poor Passed Passed Both
Variation Variation in ce Sheet Candidat ce Sheet es who have Mobile Email Communi Permanen Academic Both Exam but have
noticed by noticed by Signatur Not e found found belonging not No. given given at cation t Address Backgrou Exam- poor academic
the the e noticed Found Absent on without to Other studied at the the time Address (Other nd (Less 102 background-
Committee Committe by Attendan signature State (i.e. Marathi time of of (Other than than 50% candidate 102
members ee Vigilance ce Sheet of Other in Registrati Registrati than siblings) in SSC s have candidates
at the time Members Section candidate than Academic on on siblings) exam passed have passed
of at the time i.e. s Maharash but have both the both the
preappoint of Registrati mentione tra & scroed examinati examinations
ment preappoint on d on it Goa) as more ons i.e. i.e. Postman as
formalities ment Signatur and per than 15 Postman well as MTS
formalities e with without permanen marks as well as which were
OMR signature t address (60% MTS held on two
Signatur of the uploaded marks) which different dates
e Invigilato at the out of 25 were held Passed Both
r time of marks in on two Exam
Registrati Marathi different
on exam dates
condcute
d by the Passed Passed Both
Departme Both Exam but have
nt (based Exam poor academic
on background
candidate
s
attended
for
OMR preappoi
ntment
formalitie
s

8 CHANDRAPUR 0 4 0 4 1 0 1 4 1 1 1 3 5 2 27

9 DHULE 1 0 0 5 1 3 2 0 2 0 0 0 5 0 0 19
10 GOA 8 9 0 17 2 6 2 0 2 0 1 1 8 4 2 62

11 JALGAON 2 0 1 9 1 0 1 0 2 0 0 0 2 1 0 19
12 KOLHAPUR 1 2 1 6 2 0 0 0 0 1 1 0 0 0 14

13 MALEGAON 0 0 0 10 1 1 1 1 3 2 3 3 3 0 0 28

14 MUMBAI EAST 1 2 2 17 1 5 15 0 6 0 0 0 13 1 0 83
15 MUMBAI GPO 4 0 1 4 0 1 10 8 0 4 0 0 0 2 3 1 38

16 MUMBAI NORTH 26 21 0 31 1 15 8 1 10 1 3 4 5 4 2 132

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40

Sr. Allotted Division Committee Vigilance Tota
No. l

17 MUMBAI NORTH 6 15 3 40 3 9 8 2 9 1 3 3 6 9 3 120
EAST
18 MUMBAI NORTH 56 29 4 64 8 45 34 10 38 4 14 14 25 10 1 356
WEST

19 MUMBAI SOUTH 4 2 1 17 2 2 1 0 3 0 1 1 6 2 1 43
20 MUMBAI WEST 6 2 0 25 3 5 5 0 3 0 0 0 4 3 0 56

21 NAGPUR CITY 0 0 1 5 0 2 1 1 5 2 2 3 7 0 0 29
22 NAGPUR 0 0 0 3 2 0 0 3 1 3 3 1 1 0 17
MOFFISIL

23 NANDED 0 0 0 6 1 0 0 0 0 0 0 3 1 0 11

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41

Sr. Allotted Division Committee Vigilance Tota
No. l

24 NASHIK 0 0 0 19 2 1 3 3 0 2 1 1 1 2 2 0 37

25 NAVI MUMBAI 6 1 1 24 6 9 5 1 4 2 2 2 6 6 1 76
26 OSMANABAD 0 0 1 10 0 0 0 0 0 0 0 0 3 0 14

27 PANDHARPUR 0 0 0 2 0 0 0 0 0 0 0 0 2 0 4
28 PARBHANI 0 0 1 5 2 0 1 1 1 1 1 0 1 0 14

29 PUNE CITY EAST 0 0 0 12 1 3 3 1 3 0 2 2 4 4 0 35
30 PUNE CITY WEST 1 0 1 19 0 0 0 2 1 1 1 4 9 2 41

413 PUNE MFL 0 0 0 6 0 3 2 0 0 0 0 0 1 1 0 13
1

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42

Sr. Allotted Division Committee Vigilance Tota
No. l

32 PUNE MOFFUSIL 0 0 0 4 0 1 0 0 0 0 0 0 0 0 5
33 RAIGAD 1 0 0 8 0 1 1 1 0 0 0 0 2 0 0 14

34 RATNAGIRI 1 2 0 5 0 1 0 0 0 0 0 0 2 0 11
35 RMS BM 0 0 0 0 0 0 0 1 0 0 0 0 0 0 1
DIVISION MIRAJ

36 RMS F DIVISION 0 0 0 0 1 0 0 0 1 1 1 0 0 0 4
NAGPUR

37 RMS L DIVISION 0 0 0 0 0 0 0 1 0 0 0 0 0 0 1
BHUSAVAL
38 SANGLI 1 1 0 3 0 1 1 1 2 1 1 1 2 1 0 16

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43

39 SATARA 0 0 0 8 0 0 0 0 0 0 0 1 2 0 11

40 SINDHUDURG 0 0 1 4 0 0 0 0 0 0 0 1 2 1 9
41 SOLAPUR 0 0 1 12 1 0 0 0 0 0 0 1 1 0 16

42 SRIRAMPUR 0 0 0 5 1 0 0 0 0 0 0 1 0 0 7
43 THANE CENTRAL 14 3 2 27 3 2 1 0 3 2 3 3 4 4 1 72

44 THANE WEST 5 1 1 10 0 1 1 0 1 0 0 0 4 2 0 26
45 WARDHA 0 0 3 9 1 0 0 1 0 1 1 6 1 0 23

46 YEOTMAL 0 0 0 6 0 0 1 2 0 0 0 2 2 0 13
TOTAL 151 95 32 534 55 1 1 155 110 24 137 22 51 54 157 102 18 1699

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44

Sr. Allotted Division Committee Vigilance
No.

Sign Photo Variation Attendan Selected Attendan Candidat Those Common Common Sibling Common Common Poor 102 candidates have
Variatio Variation in ce Sheet Candidat ce Sheet es who have Mobile Email Communi Permanen Academic passed both the
n noticed by Signatur Not e found found belonging not No. given given at cation t Address Backgrou examinations i.e. Postman
noticed the e noticed Found Absent on without to Other studied at the the time Address (Other nd (Less as well as MTS which were
by the Committe by Attendan signature State (i.e. Marathi time of of (Other than than 50% held on two different
Committ ee Vigilance ce Sheet of Other in Registrati Registrati than siblings) in SSC dates
ee Members Section candidate than Academic on on siblings) exam Tota
member at the time i.e. s Maharash but have l
s at the of Registrati mentione tra & scored
time of preappoint on d on it Goa) as more
preappo ment Signatur and per than 15
intment formalities e with without permanen marks
formaliti OMR signature t address (60%
es Signatur of the uploaded marks)
e Invigilato at the out of 25
r time of marks in
Registrati Marathi
on exam
conducte
d by the Passed Passed Both
Departme Both Exam but have
nt (based Exam poor academic
on background
candidate
s
attended
for
OMR preappoi
ntment
formalitie
s

1 AIRMAIL SORTING 5 2 1 6 2 2 0 0 0 0 4 11 3 36
DIVISION
2 AKOLA 1 0 0 4 0 0 1 1 1 1 1 0 0 0 10

3 AMRAVATI 1 0 0 1 0 0 0 0 1 1 0 0 0 4
4 BULDHANA 0 0 0 2 0 0 0 2 1 2 2 0 1 0 10

5 CENTRAL SORTING 0 0 0 0 0 0 1 2 2 4 4 0 8 1 22
DIVISION
6 CHANDRAPUR 0 1 0 6 0 0 0 0 0 0 3 0 0 10

7 DAP NAGPUR 0 0 0 0 1 0 1 0 1 1 2 2 0 2 0 10

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Sr. Allotted Division Committee Vigilance
No.

8 DHULE 0 0 0 0 0 0 1 1 1 1 0 1 0 5
9 FOREIGN POST 6 3 1 0 1 1 1 2 3 3 3 6 7 0 37
MUMBAI

10 GOA 0 0 0 7 0 0 0 0 0 0 0 1 0 8
11 JALGAON 0 0 0 0 0 0 0 1 1 1 1 0 0 0 4

12 KOLHAPUR 0 0 0 0 0 0 0 0 0 0 1 0 0 1

13 MMS MUMBAI 0 0 0 2 0 0 0 0 0 0 0 1 0 3
14 MMS NAGPUR 1 1 0 2 0 0 0 2 1 1 2 1 1 12
15 MUMBAI CO 0 0 1 3 1 1 0 0 0 0 0 1 0 7

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Sr. Allotted Division Committee Vigilance
No.

16 MUMBAI EAST 0 0 0 2 0 0 2 1 1 2 2 1 0 0 11
17 MUMBAI GPO 2 0 0 0 4 2 2 6 1 1 14 6 1 39

18 MUMBAI NORTH 5 3 0 13 4 3 0 0 1 1 1 1 4 1 37
19 MUMBAI NORTH 1 2 2 1 4 3 0 1 0 0 1 4 0 19
EAST

20 MUMBAI NORTH 5 2 0 2 1 1 0 3 2 2 0 1 0 19
WEST
21 MUMBAI SORTING 0 0 2 4 3 1 0 5 2 2 4 7 2 32
DIVISION

22 MUMBAI SOUTH 1 0 1 15 3 2 1 2 1 1 1 3 6 3 40

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Sr. Allotted Division Committee Vigilance
No.

23 MUMBAI WEST 2 0 2 0 1 1 1 1 1 1 0 4 1 15
24 NAGPUR CITY 0 0 0 7 0 0 0 0 0 0 1 0 0 8

25 NAVI MUMBAI 0 0 0 0 0 0 0 1 1 1 1 0 1 0 5
26 PANDHARPUR 0 0 0 1 0 0 0 0 0 0 0 0 0 1

27 PARBHANI 0 0 0 1 0 0 0 0 0 0 0 0 0 1
28 PSD KOLHAPUR 0 3 1 1 0 0 0 1 1 1 2 2 1 13

29 PSD MUMBAI 0 0 0 1 0 0 1 1 1 1 0 0 0 5
30 PSD NASHIK 0 0 0 3 0 0 0 0 0 0 1 1 0 5

31 PSD NASIK 0 0 0 1 0 0 0 0 0 0 0 0 0 1

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Sr. Allotted Division Committee Vigilance
No.

32 PUNE CITY EAST 0 0 0 0 0 0 2 1 2 2 2 0 0 0 9
33 PUNE CITY WEST 0 0 0 1 0 0 0 0 0 0 1 2 0 4

34 PUNE MFL 0 0 0 2 0 0 2 1 1 2 2 1 0 0 11
35 RAIGAD 1 0 0 1 0 0 0 0 0 0 0 1 0 3

36 RATNAGIRI 2 0 0 4 0 0 0 0 0 0 0 0 0 +

37 RMS B DIVISION 0 0 0 0 1 0 2 4 3 6 6 2 12 2 38
PUNE
38 RMS BM DIVISION 0 1 0 4 1 0 0 1 1 1 0 2 1 12
MIRAJ

39 RMS F DIVISION NAGPUR 1 0 3 1 1 0 2 6 2 3 3 9 2 0 33

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49

Sr. Allotted Division Committee Vigilance
No.

Sign Photo Variation Attendan Selected Attendan Candid Those who Common Common Sibling Common Common Poor 102 candidates have
Variatio Variation in ce Sheet Candidat ce Sheet ates have not Mobile Email Communi Permanen Academic passed both the
n noticed by Signatur Not e found found belongi studied No. given given at cation t Address Backgrou examinations i.e. Postman
noticed the e noticed Found Absent on without ng to Marathi in at the the time Address (Other nd (Less as well as MTS which were
by the Committe by Attendan signature Other Academic time of of (Other than than 50% held on two different
Committ ee Vigilance ce Sheet of State but have Registrati Registrati than siblings) in SSC dates
ee Members Section candidate (i.e. scored on on siblings) exam Tota
member at the time i.e. s Other more than l
s at the of Registrati mentione than 15 marks
time of preappoint on d on it Mahara (60%
preappo ment Signatur and shtra & marks) out
intment formalities e with without Goa) as of 25 marks
formaliti OMR signature per in Marathi
es Signatur of the perman exam
e Invigilato ent conducted
r address by the
uploade Department
d at the (based on
time of candidates
Registr attended
ation for
preappoint
ment Passed Passed Both
formalities Both Exam but have
Exam poor academic
background

OMR

40 RMS L DIVISION 1 0 2 13 0 0 1 3 0 0 4 3 0 27
BHUSAVAL
41 RO GOA 0 0 0 8 0 0 0 0 0 0 0 1 0 9

42 RO MUMBAI 0 0 0 0 0 0 0 0 0 0 0 2 0 2
43 RO NAGPUR 0 0 0 0 0 0 0 4 1 1 2 0 0 8

44 RO PUNE 0 0 1 1 0 0 0 0 0 0 0 1 0 3
45 SANGLI 0 0 0 0 0 0 0 0 0 0 0 1 0 1

46 SATARA 0 0 0 0 0 0 1 1 1 1 1 1 1 0 7

47 SHRIRAMPUR 0 0 0 1 0 0 0 0 0 0 0 1 0 2
48 SINDHUDURG 0 1 0 0 0 0 0 0 0 0 0 0 0 1

49 THANE CENTRAL 0 0 0 0 0 0 0 1 1 1 2 1 0 6

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50

Sr. Allotted Division Committee Vigilance
No.

50 THANE WEST 0 0 0 0 0 0 0 0 0 0 0 1 0 1
51 WARDHA 0 0 0 0 0 0 0 1 0 0 0 1 1 3

52 YEOTMAL 0 0 1 2 0 0 0 0 0 0 3 0 0 6
TOTAL 35 19 18 123 1 0 0 27 18 21 57 22 46 46 69 102 18 622

Including Including Including Including Out of 102 in
10 12 22 22 the adjoining
Siblings Siblings Siblings Siblings column 18
have poor
academic
background

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51

The purity of recruitment process must be maintained. The vigilance

report indicates that the outsourcing agency itself was involved in the

crime of malpractice and F.I.R. has been lodged against the Directors

of Manipal Technologies. The Hon'ble High Court has declined to

grant anticipatory bail to them. The entire recruitment process was

tampered. It is also argued that the in case of candidates having

common address, common mobile No., common Email I.D., 99% of

them were having similar answers, both right or wrong, though

they were sitting in different centers or rooms. It was noticed that all

the papers of Postman/Mail Guard were manually evaluated when it

was agreed that there would be Zero human interference. Thus, the

software programme has not evaluated the answer-sheet. Many

candidates had passed SSC examinations without Maths and English

but they have secured extremely good marks in Maths and English.

Thus there is compromising of the entire process. Some candidates

were shown as absent in the attendance sheet but their answer sheets

have been evaluated. The results indicated possibility of leakage of

question papers. Suspicious candidates are spread across most of the

divisions and it is not possible to identify the tainted one as it would

be never ending exercise. He relied on number of rulings and argued

that even when there is minute leak of question paper, the entire

examination needs to be quashed. The facts indicate that there was

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52

possibility of leakage of the papers and of E-cheating. When it is

impossible to segregate the tainted candidate, i.e. to separate the

chaff from the grains, the respondents have no alternative but to

cancel the examination. The inconvenience caused to the selected

candidates can be minimized by allowing age relaxation to the

candidates who had filled in forms to appear for the examinations

without filing fresh application.

13. In reply, the learned Counsel for the petitioners argued

that the vigilance report was not reliable in respect of the tainted

candidates though they are not appearing for them. They submitted

that the signature difference noted was on account of shortage of

space. They also pleaded and argued that the candidates poor in 10 th

Std. or 12th standard might have prepared themselves. Most of them

have graduated and thereafter, had appeared for examination. The

comparison of marks obtained at 10th Std. or 12th Std. with the marks

obtained in the recruitment process, examination was unwarranted.

They also pointed out that the respondents took long time to take

decision as they themselves were not certain about the irregularities.

They also argued that there was nothing suspicious if some

candidates have given common mobile numbers and common E-mail

addresses or common permanent addresses as many of them are

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53

siblings and due to poverty, they may not have separate mobile

numbers or E-mail addresses. In any case, according to them, the

entire recruitment process was not tampered and individual cases can

be identified and separated and the petitioners can be appointed

without re-examination.

14. We have carefully considered the arguments advanced and

the documents referred. We have also carefully considered the

various Rulings cited before us.

15. In the light of the arguments advanced, the points for our

consideration are as follows:

(i) Whether the petitioners have a right to invoke the writ
jurisdiction of this Court?
......In the affirmative.

(ii) Whether the order of cancellation stands vitiated on
the ground of not following the principles of natural
justice?
... In the negative.

(iii) Whether the material collected by the respondents
through vigilance discloses that the entire recruitment
process was tampered and it would not be possible to
segregate the tainted candidates with untainted
candidates and the entire process was required to be
cancelled?
... In the negative.

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(iv) What order? .... As per final order.

16. Right to invoke the jurisdiction:- The learned advocate

for the respondents relied on the judgment in Chairman, All India

Railway Recruitment Board and another Vs. K. Shyam Kumar and

others reported in 2010(6) SCC 614, wherein it is observed;

49. The Writ Petitioners, in our view, have also no
legal right to insist that they should be appointed to Group
`D' posts. Final merit list was never published. No
appointment orders were issued to the candidates. Even if a
number of vacancies were notified for appointment and
adequate number of candidates were found successful, they
would not acquire any indefeasible right to be appointed
against the existing vacancies. This legal position has been
settled by a catena of decisions of this Court. Reference can
be made to the judgment of this Court in Shankarsan Dash
v. Union of India, (1991) 3 SCC 47; B. Ramanjini and Others
v. State of A.P. and Others, (2002) 5 SCC 533.

17. Per contra, learned advocates for the petitioners relied on

Anil Barmu Patil v State of Goa reported in [2014(6) Mh.L.J. 148],

wherein reliance was placed on following two rulings.

(i) Asha Kaul (Mrs.) Vs. State of Jammu and Kashmir

reported in (1993) 2 SCC 573

"8. It is true that mere inclusion in the select list does not
confer upon the candidates included therein an indefeasible
right to appointment State of Haryana v. Subhash Chandra
Marwaha ; IMS. Jain v. State of Haryana State of Kerala v A
Lakshmikutty but that is only one aspect of the matter. T he
other aspect is the obligation of the government to act
fairly. The whole exercise cannot be reduced to a farce.
Having sent a requisition/request to the commission to

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55

select a particular number of candidates for a particular
category, -in pursuance of which the commission issues a
notification, holds a written test, conducts interviews,
prepares a select list and then communicates to the
government - the government cannot quietly and without
good and valid reasons nullify the whole exercise and tell
the candidates when they complain that they have no legal
right to appointment. We do not think that any government
can adopt such a stand with any justification today.

(ii) R. S. Mittal vs. Union of India reported in (1995) Supp. 2

SCC 230.

12. It is no doubt correct that a person on the select- panel
has no vested right to be appointed to the post for which he
has been selected. He has a right to be considered for
appointment. But at the same time, the appointing
authority cannot ignore the select-panel or decline to make
the appointment on its whims. When a person has been
selected by the Selection Board and there is a vacancy
which can be offered to him, keeping in view his merit
position, then, ordinarily, there is no justification to ignore
him for appointment. There has to be a justifiable reason to
decline to appoint a person who is on the select-panel. In
the present case, there has been a mere inaction on the part
of the Government. No reason whatsoever, not to talk of a
justifiable reason, was given as to why the appointments
were not offered to the candidates expeditiously and in
accordance with law.

18. Relying on these judgments, this Court in case of Anil

Barmu Patil Vs. State of Goa and another reported in [2014(6)

Mh.L.J. 148], observed in para 12 as follows:

12. The petitioner has been selected after following the
due procedure and the petitioner having being given the
appointment order, it cannot be said that the petitioner has
no right to seek indulgence of this Court in the extraordinary
writ jurisdiction for enforcing his legal right pursuant to the

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56

memorandum dated 4-11-2011 which admittedly stands and
has not been cancelled or revoked.

19. In case of appointed candidates, it was argued that, they

are probationers and they are not entitled for protection. Reliance

was placed on Chandra Prakash Shahi Vs. State of U.P. and others

reported in 2000 SCC (L&S) 613. Following passage from State of

Punjab v. Sukh Raj Bahadur reported in AIR 1968 SC 1089 was

quoted with approval.

15. ....

1. The services of a temporary servant or a
probationer can be terminated under the rules of his
employment and such termination without anything more
would not attract the operation of Article 311 of the
Constitution.

2. The circumstances preceding or attendanton the
order of termination of service have to be examined in each
case, the motive behind it being immaterial.

3. If the order visits the public servant with any evil
consequences or casts an aspersion against his characer or
integrity, it must be considered to be one by way of
punishment, no matter whether he was a mere probationer
or a temporary servant.

20. Similarly, in para 13 & 14 of the judgment in

Chandraprakash Shahi's case (supra), it is held that, if the

termination is simplicitor without putting any stigma, no regular

departmental enquiry is to be held as no punitive action was taken

and there was no question of applicability of Article 311(2) of the

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57

Constitution. In Para 19 & 20, it is further held that, it is necessary to

consider whether the enquiry held for removal of probationer was the

foundation or not. If it is for determining misconduct which is

foundation for the removal, it is punitive in nature and in such case

the probationer will be entitled for protection under Article 311(2) of

the Constitution. But if it is for determining suitability for

continuation then no protection to probationer. It was observed in

para 20 that, termination simpliciter of a temporary government

servant on the ground of unsuitability does not attract the provisions

of Article 16, nor is the protection under Article 311(2) of the

Constitution available to a temporary government servant unless the

termination involved "stigma", was the dictum laid down by this

Court in Commodore Commanding, Southern Naval Area, Cochin

vs. V.N. Rajan reported in AIR 1981 SC 965.

21. In Kazia Mohammed Muzzammil Vs. State of Karnataka

and another reported in (2010) 8 SCC 155, it was held that, unless

the rules provide, on completion of period of probation, there is no

deemed confirmation. A specific order in writing is necessary for

confirming the employee. In the facts of the case the Apex Court

decided not to exercise powers u/s Article 136 (Para 55).

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58

22. The respondents placed reliance on;

Inderpreet Singh Kahlon and others Vs. State of Punjab

and others reported in (2007) 1 SCC (L&S) 444

57. ....... It is one thing to say that having regard to
the nature of selection process, no person is appointed from the select
list as no person has right to be appointed only because his name
appears in the select list, but, in our opinion, a different standard
must be adopted for terminating the services of the officers who had
completed about three years of service. Some of them, as noticed
hereinbefore, passed departmental tests. Some have been given
higher responsibilities. They had completed the period of probation
and some were nearing the completion thereof. They presumably had
been working to the satisfaction of the authorities concerned.

. In the facts and circumstances, impugned orders of the

Government were set aside.

23. In the present case, two appointed petitioners were

probationers and were removed within short time after their joining.

Whereas; most of the others are selected candidates. Their

termination is on the ground of cancellation of examination and not

on the ground of personal misconduct. In such situation, the

petitioners can challenge their termination or cancellation of the

examination on the ground of arbitrariness or unequality on treating

them at par with tainted candidates which is unreasonable, violative

of Article 14 of the Constitution of India. In this regard, reliance can

be placed on Gohil Vishvaraj Hanubhai & others Versus State of

Gujarat & Others (Civil Appeal Nos. 5680-83 of 2017, decided on 28th

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April, 2017), wherein it is observed thus:

27. It is nobody's case before us that the
impugned action is violative of any of the fundamental
freedoms of the appellants. We are called upon to examine
the proportionality of the administrative action only on the
ground of violation of Article 14. It is therefore necessary to
examine the principles laid down by this Court in this
regard.

This Court posed the question in Omkar's Case;

61. When does the court apply, under
Article 14, the proportionality test as a primary reviewing
authority and when does the court apply the Wednesbury
rule as a secondary reviewing authority? From the earlier
review of basic principles, the answer becomes simple. In
fact, we have further guidance in this behalf.

and concluded;

"66. It is clear from the above discussion that in
India where administrative action is challenged under
Article 14 as being discriminatory, equals are treated
unequally or unequals are treated equally, the question is
for the Constitutional Courts as primary reviewing courts to
consider correctness of the level of discrimination applied
and whether it is excessive and whether it has a nexus with
the objective intended to be achieved by the administrator.
Here the court deals with the merits of the balancing action
of the administrator and is, in essence, applying
"proportionality" and is a primary reviewing authority.

67. But where an administrative action is challenged
as "arbitrary" under Article 14 on the basis of E.P. Royappa
v. State of T.N., (1974) 4 SCC 3, (as in cases where
punishments in disciplinary cases are challenged), the
question will be whether the administrative order is
"rational" or "reasonable" and the test then is the
Wednesbury test. The courts would then be confined only
to a secondary role and will only have to see whether the
administrator has done well in his primary role, whether he
has acted illegally or has omitted relevant factors from
consideration or has taken irrelevant factors into
consideration or whether his view is one which no

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reasonable person could have taken. If his action does not
satisfy these rules, it is to be treated as arbitrary. In G.B.
Mahajan v. Jalgaon Municipal Council, (1991) 3 SCC 91,
Venkatachaliah, J. (as he then was) pointed out that
"reasonableness" of the administrator under Article 14 in
the context of administrative law has to be judged from the
stand point of Wednesbury rules. In Tata Cellular v. Union
of India, (1994) 6 SCC 651, Indian Express Newspapers
Bombay (P) Ltd. v. Union of India, (1985) 1 SCC 641,
Supreme Court Employees' Welfare Assn. v. Union of India,
(1989) 4 SCC 187, and U.P. Financial Corpn. V. Gem Cap
(India) (P) Ltd., (1993) 2 SCC 299, while judging whether
the administrative action is "arbitrary" under Article 14 (i.e.
otherwise then being discriminatory), this Court has
confined itself to a Wednesbury review always.

68. Thus, when administrative action is attacked
as discriminatory under Article 14, the principle of primary
review is for the courts by applying proportionality.
However, where administrative action is questioned as
"arbitrary" under Article 14, the principle of secondary
review based on Wednesbury principles applies."

. Further reliance was placed on para 34 of the judgment in

Inderjeet Kahlon's case (supra).

34. Yet again in Onkar Lal Bajaj and Others v. Union
of India and anotherr [(2003) 2 SCC 673], this Court while dealing
with a case of en masse cancellation of the licences granted to the LPG
Distributors as a result whereof unequals were said to have been
clubbed by reason of arbitrary exercise of executive power, the same was
held to be impermissible stating:

"The solution by resorting to cancellation of all was worse
than the problem. Cure was worse than the disease. Equal treatment to
unequals is nothing but inequality. To put both the categories tainted
and the rest on a par is wholly unjustified, arbitrary, unconstitutional
being violative of Article 14 of the Constitution".

......
......

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The role model for governance and decision taken thereof
should manifest equity, fair play and justice. The cardinal principle of
governance in a civilized society based on rule of law not only has to
base on transparency but must create an impression that the decision-
making was motivated on the consideration of probity. The
Government has to rise above the nexus of vested interests and
nepotism and eschew window dressing. The act of governance has to
withstand the test of judiciousness and impartiality and avoid
arbitrary or capricious actions. Therefore, the principle of governance
has to be tested on the touchstone of justice, equity and fair play and
if the decision is not based on justice, equity and fair play and has
taken into consideration other matters, though on the face of it, the
decision may look legitimate but as a matter of fact, the reasons are
not based on values but to achieve popular accolade, that decision
cannot be allowed to operate.

Rajnikant Ojha vs. Union of India reported in (2014) 4
PLJR 511, wherein Patna High Court held in para 36 thus:

36. This court is mindful of the fact that in a populous
country like India, where job opportunities are few and sparse, public
employment is much coveted for the youth. Denial of opportunity to
compete for such posts and to be considered for appointment without
any valid, justifiable reason is bound to generate a sense of
discontentment among them. An arbitrary and whimsical decision by
respondents to cancel a selection process held at a particular centre
succeeded by denial to hold a fresh selection process in violation of their
own promise made by them through public notice can be genesis of
reasonable suspicion in minds of youth over the bone fide of
administrative action/inaction. The men entrusted with the task of
recruitment/selection for public employment are not only called upon to
ensure that best persons are selected most suited for requirement of the
post. Equally important is their duty to be sensitive to the legitimate
expectation of the aspirants vying for such posts on the basis of their
merit through open competition/selection process, that they are treated
fairly. Such fairness in action should not only be practised but it should
be manifest from their conduct.

24. In the light of these rulings, we hold that, the petitions are

maintainable and the petitioners can succeed only if they can show

that the Government has exercised their discretion arbitrarily or

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unfairly or unreasonably and have treated them at par with tainted

candidates and the decision cannot not stand in the face of doctrine

of unreasonableness and proportionality.

25. Principles of Natural Justice: The petitioners argued that,

before cancellation of the exams, they should have been provided

with the vigilance report and should have been given opportunity of

hearing and the reasons should have been disclosed in the order

itself. If the reasons are not given, those cannot be supplanted later-

on. In this regard, they placed reliance on Harbhajan Singh and

others Vs. Nawanshahar Central Co-operative Bank Ltd. & Ors.

reported in (2004) SCC (L&S) 1031.

7. The Bank should have conducted a proper enquiry
to find out the irregularities, if any, committed in the process of
selection of candidates and based on that report alone the candidates
who were already appointed could have been removed from service. The
candidates should have been given reasonable opportunity of being
heard before their removal from service. The appellants removal from
service is without following proper procedure and it amounted to
violation of the principles of natural justice.

26. In Chandra Prakash Shahi Vs. State of U.P. and others

reported in 2000 SCC (L&S) 613, In this case the petitioner/constable

was terminated after three years of service without notice and

opportunity of hearing. It is held in para 27 & 33 as follows:

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27. The whole case law is thus based on the peculiar
facts of each individual case and it is wrong to say that decisions have
been swinging like a pendulam; right, the order is valid; left, the
order is punitive. It was urged before this Court, more than once
including in Ram Chandra Trivedi's case (supra) that there was a
conflict of decisions on the question of order being a simple
termination order or a punitive order, but every time the Court
rejected the contention and held that the apparent conflict was on
account of different facts of different cases requiring the principles
already laid down by this Court in various decisions to be applied to a
different situation. But the concept of "motive" and "foundation" was
always kept in view.
33. Where, therefore, the services of a probationer
are proposed to be terminated and a particular procedure is
prescribed by the Regulations for that purpose, then the termination
has to be brought about in that manner. The probationer-constable
has to be informed of the grounds on which his services are proposed
to be terminated and he is required to explain his position. The reply
is to be considered by the Superintendent of Police so that if the reply
is found to be convincing, he may not be deprived of his services.

27. Per contra, learned advocate for the respondents relied on

number of rulings wherein consistent view is taken that, where the

entire recruitment has been tampered and no individual is charged

with adoption of unfair practice, the principles of natural justice are

not required to be followed. The reliance was placed on the

following judgments.

(a) Chairman, All India Railway Recruitment
Board and another Vs. K. Shyam Kumar and others 2010(6) SCC
614

46. We also find it difficult to accept the reasoning of
the High Court that the copy of the Vigilance report should have been
made available to the candidates at least when the matters came up for
hearing. Copy of the report, if at all to be served, need be served only if
any action is proposed against the individual candidates in connection
with the malpractices alleged. Question here lies on a larger canvas as

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to whether the written test conducted was vitiated by serious
irregularities like mass copying, impersonation and leakage of question
paper, etc not against the conduct of a few candidates.

(b) Om Prakash Mann Vs. Director of Education

(Basic) & Ors. reported in AIR 2006 SC 3096, wherein it is held that,

there is no necessity to supply the vigilance report in such matters.

Besides, if the report is not submitted, the petitioner should show the

prejudice for not furnishing the vigilance report.

Industrial Corporation Ltd. & Anr. reported in 1999 SCC (L&S)

439, in para 20 it is held thus:

20. However Shah,J. (as he then was) in State of
Orissa vs. Ram Narayan Das [1961 (1) SCR 606] gave a new
dimension to the legal principles. That case also related to a probationer
but was governed by Rule 55-B of the Civil Services (Classification,
Control and Appeal) Rules which was a special provision and which
stated :

"where it is proposed to terminate the employment of a
probationer, whether during or at the end of the period of probation,
for any specific fault or on account of his unsuitability for the service,
the probationer shall be apprised of the grounds of such proposal and
given an opportunity for show cause against it, before orders are passed
by the authority competent to terminate the employment."

If the test of 'inquiry' laid down by Sinha, CJ was to be
applied, every termination of a probationer made by following the rule
and conducting an inquiry would become punitive. The ' inquiry test'
(as pointed out by Krishna Iyer, J. in Samsher Singh's case broken
down. A new test had to invented. Therefore Shah, J. (as he then was)
laid down a new test which required that one should look into "object or
purpose or the inquiry" and not merely held the termination to be
punitive merely because of an antecedent inquiry. J.C. Shah, J (as he
then was) said:

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"Whether it amounts to an order of dismissal depends upon
the nature of the inquiry, if any, the proceedings taken therein and the
substance of the final orders passed on such inquiry."

(d) In Om Prakash Mann's case (supra), it is observed

in para 9 which reads thus:

9. By now it is well settled principle of law
that doctrines of principle of natural justice are not embodied Rule. It
cannot be applied in the straight jacket formula. To sustain the
complaint of violation of the principle of natural justice one must
establish that he has been prejudiced by non-observance of principle of
natural justice. As held by the High Court the appellant has not been
able to show as to how he has been prejudiced by non-furnishing of the
copy of the enquiry report. The appellant has filed a detail appeal before
Appellate Authority which was dismissed as noticed above. It is not his
case that he has been deprived of making effective appeal for non-
furnishing of copy of enquiry report. He has participated in the enquiry
proceedings without any demur. It is undisputed that the appellant has
been afforded enough opportunity and he has participated throughout
the enquiry proceedings, he has been heard and allowed to make
submission before the enquiry Committee.

(e) In Nidhi Kaim Vs. State of Madhya Pradesh

and others reported in (2016) 7 SCC 615, there was prima facie

material of mass copying and mass leakage of paper and handing

over and taking money for favouritism in the entrance examination of

the Medical College. Some officers of the Board were also involved

and were arrested along with the students and others. Such

malpractices were noticed for a period of more than five years. The

Apex Court relied on judgment in The Bihar School Examination vs.

Subhas Chandra Sinha reported in (1970) 1 SCC 648 wherein it is

held:

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26. This Court in Sinha case laid down the principle
that the rule of audi alteram partem need not be complied with in
connection with the cancellation of examinations where it would be
impracticable to apply the said principle. Adoption of unfair means on a
large scale is one of them. This Court did not go by the percentage of the
students who were alleged to have had resorted to the practice of unfair
means. When this Court characterized the situation as practice of unfair
means on a 'large scale', it used the expression only to distinguish the
situation from cases of practice of unfair means by one or two students.
This Court has also held that there are other circumstances justifying
the departure from complying with the audi alteram partem rule. They
are leakage of question papers and destruction of a large number of
answer papers. In my opinion, the examples given therein are not
exhaustive of all the categories constituting exceptions to the application
of the rule of audi alteram partem.

28. This view is again summed up in para 39(4), 39(5) and

39(6) and it was held that, in para 42(1) and 42(2) that, principles of

natural justice need not be followed. His Lordship Justice Abhay

Sapre writing separate judgment and differing on the point of reliefs

took the same view with regard to non applicability of principles of

natural justice. It is observed in para 128:

128. This Court has laid down in these cases that the
applicability of rules of natural justice is not static but it has different
facets and, therefore, its applicability vary from case to case. I find that
none of these cases has dealt with the cases of "copying" or "mass
copying". In my view, when the question as regard the applicability of
rules of natural justice has already been decided by this Court in several
cases relating to "copying" and "mass copying" then the law laid down
in such cases must be applied to the cases at hand and not the one
which lays down the law which explains the principle in general. ....

(f) In K. Shyam Kumar's case (supra), in para 44 it is

held that, absence of reasons in the order is not a ground to quash

the order and in such matters the subsequent material collected can

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be also considered.

29. In the light of these facts, we find that it is very material to

consider the ground of cancellation of the entire examination. If the

cancellation of entire examination is justified on the ground of mass

copying, leakage of papers or tampering of the recruitment process

itself, then neither the selected candidates nor appointed candidates

are entitled for any protection. However, if the rules provide for

opportunity of hearing then in that case the persons appointed must

be given an opportunity of hearing and thereafter their services can

be terminated. However, if the cancellation of the entire examination

is not justified and there is a scope for segregating the tainted

candidates from the untainted candidates, an opportunity of hearing

should be given to tainted candidates whether selected or appointed

and thereafter the decision should be taken. In the present case, all

the candidates before us are untainted candidates and therefore the

material issue is, whether the segregation of tainted candidates from

untainted candidate is possible or not? If it is possible then

termination of two petitioners from Writ Petition No. 9910 of 2017

without opportunity of hearing is not justified and if the segregation

is not possible their termination cannot be challenged on the ground

of not following the principles of natural justice.

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Segregation of tainted and untainted candidates:-

30. This is the main issue for consideration. It has following

three facets.

(i) Whether the order passed by the respondents is

subject to judicial review and what is the scope thereof?

(ii) Whether the order suffers from unreasonableness

or dis-proportionality?

(iii) Whether on facts it was a prima facie case of

mass tampering or mass leakage of question paper or the whole

recruitment process was tampered and the intermixing was such that

there was no scope for segregation of tainted candidates with

untainted candidates?

31. The scope of judicial review is well settled.

(a) In K. Shyam Kumar (supra), it is held that,
22. Judicial review conventionally is concerned with
the question of jurisdiction and natural justice and the Court is not
much concerned with the merits of the decision but how the decision
was reached. In Council of Civil Service Unions Vs. Minister of State
for Civil Service (1984) 3 All ER 935 the (GCHQ Case) the House of
Lords rationalized the grounds of judicial review and ruled that the
basis of judicial review could be highlighted under three principal
heads, namely, illegality, procedural impropriety and irrationality.
Illegality as a ground of judicial review means that the decision
maker must understand correctly the law that regulates his decision
making powers and must give effect to it. Grounds such as acting
ultra vires, errors of law and/or fact, onerous conditions, improper
purpose, relevant and irrelevant factors, acting in bad faith, fettering
discretion, unauthorized delegation, failure to act etc., fall under the
heading "illegality". Procedural impropriety may be due to the failure

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to comply with the mandatory procedures such as breach of natural
justice, such as audi alteram partem, absence of bias, the duty to act
fairly, legitimate expectations, failure to give reasons etc.

"By `irrationality' I mean what can by now be succinctly
referred to as "Wednesbury's unreasonableness", ....... It applies to a
decision which is so outrageous in its defiance of logic or of accepted
moral standards that no sensible person who had applied his mind to
the question to be decided could have arrived at it."

(b) In Nidhi Kaim (supra), it is held:
42.4 The scope of judicial review of the
decision of an examining body is very limited. If there is
some reasonable material before the body to come to the
conclusion that unfair means were adopted by the students
on a large scale, neither such conclusion nor the evidence
forming the basis thereof could be subjected to scrutiny on
the principles governing the assessment of evidence in a
criminal court.

106. Rajendra Babu, J. (as His Lordship then was)
speaking for the Bench took note of the law laid down in
the case of Bihar School Examination (supra) and while
upholding the decision of cancellation of the result of the
candidates held as under:

"8. Further, even if it was not a case of mass copying or
leakage of question papers or such other circumstance, it is
clear that in the conduct of the examination, a fair
procedure has to be adopted. Fair procedure would mean
that the candidates taking part in the examination must be
capable of competing with each other by fair means. One
cannot have an advantage either by copying or by having a
foreknowledge of the question paper or otherwise. In such
matters wide latitude should be shown to the Government
and the courts should not unduly interfere with the action
taken by the Government which is in possession of the
necessary information and takes action upon the same. The
courts ought not to take the action lightly and interfere
with the same particularly when there was some material
for the Government to act one way or the other.

(d) In Gohil Vishwaraj (supra), it is held that, this
Court has on numerous occasions approved the action of the State or

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its instrumentalities to cancel examinations whenever such action is
believed to be necessary on the basis of some reasonable material to
indicate that the examination process is vitiated.

Wednesbury's principle of unreasonableness and doctrine of
proportionality :-

(a) Chairman, All India Railway Recruitment

Board and another Vs. K. Shyam Kumar and others reported in

2010(6) SCC 614, there was prima facie material showing mass

leakage of question paper, impersonation, malpractice and

irregularities in the recruitment examination of Group 'D' posts in

Railway Board, there were complaints even against the petitioners

therein. Retest of only successful candidates was directed and

thereafter the qualified persons were appointed and were serving. In

this situation, the principles of wednesbury unreasonableness and

doctrine of proportionality are explained as follows:

23. The ground of irrationality takes in Wednesbury
unreasonableness propounded in Associated Provincial Picture Houses
Limited v. Wednesbury Corporation (1947)2 All ER 680, Lord Greene
MR alluded to the grounds of attack which could be made against the
decision, citing unreasonableness as an `umbrella concept' which covers
the major heads of review and pointed out that the court can interfere
with a decision if it is so absurd that no reasonable decision maker
would in law come to it. In GCHQ Case (supra) Lord Diplock fashioned
the principle of unreasonableness and preferred to use the term
irrationality as follows:

"By `irrationality' I mean what can now be succinctly referred
to as "Wednesbury's unreasonableness", ....... It applies to a decision
which is so outrageous in its defiance of logic or of accepted moral
standards that no sensible person who had applied his mind to the
question to be decided could have arrived at it."

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25. The House of Lords in R (Daly) v. Secretary of
State for the Home Department (2001) 2 AC 532 demonstrated how
the traditional test of Wednesbury unreasonableness has moved towards
the doctrine of necessity and proportionality. Lord Steyn noted that the
criteria of proportionality are more precise and more sophisticated than
traditional grounds of review and went on to outline three concrete
differences between the two:-

(1) Proportionality may require the reviewing Court to assess
the balance which the decision maker has struck, not merely whether it
is within the range of rational or reasonable decisions.
(2) Proportionality test may go further than the traditional
grounds of review in as much as it may require attention to be directed
to the relative weight accorded to interests and considerations.
(3) Even the heightened scrutiny test is not necessarily
appropriate to the protection of human rights. Lord Steyn also felt most
cases would be decided in the same way whatever approach is adopted,
though conceded for human right cases proportionality is the
appropriate test.

36. Wednesbury applies to a decision which is so
reprehensible in its defiance of logic or of accepted moral or ethical
standards that no sensible person who had applied his mind to the issue
to be decided could have arrived at it. Proportionality as a legal test is
capable of being more precise and fastidious than a reasonableness test
as well as requiring a more intrusive review of a decision made by a
public authority which requires the courts to `assess the balance or
equation' struck by the decision maker. Proportionality test in some
jurisdictions is also described as the "least injurious means" or "minimal
impairment" test so as to safeguard fundamental rights of citizens and
to ensure a fair balance between individual rights and public interest.
Suffice to say that there has been an overlapping of all these tests in its
content and structure, it is difficult to compartmentalize or lay down a
straight jacket formula and to say that Wednesbury has met with its
death knell is too tall a statement. Let us, however, recognize the fact
that the current trend seems to favour proportionality test but
Wednesbury has not met with its judicial burial and a state burial, with
full honours is surely not to happen in the near future.

39. The courts have to develop an indefeasible and principled
approach to proportionality till that is done there will always be an
overlapping between the traditional grounds of review and the principle
of proportionality and the cases would continue to be decided in the
same manner whichever principle is adopted. Proportionality as the
word indicates has reference to variables or comparison, it enables the

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Court to apply the principle with various degrees of intensity and offers
a potentially deeper inquiry into the reasons, projected by the decision-
maker.

32. In Gohil Vishvaraj Hanubhai's case (supra),

In this case, the examination was conducted for 1800 posts
of Talathi in Gujarat. On the earlier day the FIR was lodged, still the
examination was held. There were several complaints of payment of
money to the persons assuring selection in the process. There were
special markings on OMR sheets. Initially merit list was declared by
eliminating tainted marksheets but subsequently, the entire
examination was cancelled. It was a case of large scale tampering.
In these facts it was held:

"23. Coming to the case on hand, there were allegations of
large scale tampering with the examination process. Scrutiny of the
answer sheets (OMR) revealed that there were glaring aberrations
which provide prima facie proof of the occurrence of a large scale
tampering of the examination process. Denying power to the State
from taking appropriate remedial actions in such circumstances on
the ground that the State did not establish the truth of those
allegations in accordance with the rules of evidence relevant for the
proof of facts in a Court of law (either in a criminal or a civil
proceeding), would neither be consistent with the demands of larger
public interest nor would be conducive to the efficiency of
administration. No binding precedent is brought to our notice which
compels us to hold otherwise. Therefore, the 1st submission is
rejected.

24. ....... Having regard to the nature of the allegations and
the prima facie proof indicating the possibility of occurrence of large
scale tampering with the examination process which led to the
impugned action, it cannot be said that the impugned action of the
respondent is "so outrageous in its defiance of logic" or "moral
standards". Therefore, the 2nd submission of the appellant is also
required to be rejected."

33. As to the main issue of getting cancellation of examination

in its entirety or against only tainted candidates, the parties have

placed reliance on following judgments.

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Cancellation of entire examination justified.

[a] In K. Shyam Kumar's case (supra), the

examination was held in April-2003 by Railway Board for 2609 seats.

It was a case of prima facie leakage of question paper, malpractices

on large scale, the permission to retest was done and qualified

persons were also appointed. In these facts it was held:

37. We, therefore hold, applying the test of Wednesbury
unreasonableness as well as the proportionality test, the decision
taken by the Board in the facts and circumstances of this case was
fair, reasonable, well balanced and harmonious. By accepting the
third alternative, the High Court was perpetuating the illegality since
there were serious allegations of leakage of question papers, large
scale impersonation by candidates, mass copying in the first written
test.

43. We are also of the view that the High Court was in
error in holding that the materials available relating to leakage of
question papers was limited and had no reasonable nexus to the
alleged large scale irregularity. Even a minute leakage of question
paper would be sufficient to besmirch the written test and to go for a
re-test so as to achieve the ultimate object of fair selection.

[b] In Union of India and others Vs. O.

Chakradhar reported in (2002) 3 SCC 146, Railway Board held

examination on 28.06.1996. The persons were appointed and were

serving for more than three years. Thereafter show-cause notice was

issued to them in April 1999 and on 18.08.1999, their appointments

were cancelled on the ground that no typing test was held. In these

facts it was held:

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8. In our view the nature and the extent of
illegalities and irregularities committed in conducting a selection will
have to be scrutinized in each case so as to come to a conclusion
about future course of action to be adopted in the matter. If the
mischief played is so widespread and all pervasive, affecting the
result, so as to make it difficult to pick out the persons who have
been unlawfully benefited or wrongfully deprived of their selection,
in such cases it will neither be possible nor necessary to issue
individual show cause notices to each selectee. The only way out
would be to cancel the whole selection. Motive behind the
irregularities committed also has its relevance.

12. As per the report of the CBI whole selection
smacks of mala fide and arbitrariness. All norms are said to have
been violated with impunity at each stage viz. right from the stage of
entertaining applications, with answer-sheets while in the custody of
Chairman, in holding typing test, in interview and in the end while
preparing final result. In such circumstances it may not be possible to
pick out or choose any few persons in respect of whom alone the
selection could be cancelled and their services in pursuance thereof
could be terminated. The illegality and irregularity are so inter-mixed
with the whole process of the selection that it becomes impossible to
sort out right from the wrong or vice versa. The result of such a
selection cannot be relied or acted upon. It is not a case where a
question of misconduct on the part of a candidate is to be gone into
but a case where those who conducted the selection have rendered it
wholly unacceptable. Guilt of those who have been selected is not the
question under consideration but the question is could such selection
be acted upon in the matter of public employment? We are therefore
of the view that it is not one of those cases where it may have been
possible to issue any individual notice of misconduct to each selectee
and seek his explanation in regard to the large scale widespread and
all pervasive illegalities and irregularities committed by those who
conducted the selection which may of course possibly be for the
benefit of those who have been selected but there may be a few who
may have deserved selection otherwise but it is difficult to separate
the cases of some of the candidates from the rest even if there may be
some. The decision in the case of Krishna Yadav (supra) applies to
the facts of the present case. The Railway Board's decision to cancel
the selection cannot be faulted with. The appeal therefore deserve to
be allowed.

[c] In Nidhi Kaim Vs. State of Madhya Pradesh and

others (supra), at the time of medical entrance examination in July-

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2013, some malpractices and irregularities were noticed immediately.

FIR was lodged. There was arrest of students and employees of the

Board. The crime was registered. The illegalities were noticed for a

period of five years. The Board came to the conclusion that, the

entire examinations were to be cancelled. It was held that the

conclusion is not inherently irrational or perverse and challenge to

the same was futile. It was a case of mass copying. However their

Lordship of Division Bench differed in the matter of grant of reliefs.

It was held:

106. Rajendra Babu, J. (as His Lordship then
was) speaking for the Bench took note of the law laid down in the case
of Bihar School Examination (supra) and while upholding the decision
of cancellation of the result of the candidates held as under:

"8. Further, even if it was not a case of mass copying or
leakage of question papers or such other circumstance, it is clear that in
the conduct of the examination, a fair procedure has to be adopted. Fair
procedure would mean that the candidates taking part in the
examination must be capable of competing with each other by fair
means. One cannot have an advantage either by copying or by having a
foreknowledge of the question paper or otherwise. In such matters wide
latitude should be shown to the Government and the courts should not
unduly interfere with the action taken by the Government which is in
possession of the necessary information and takes action upon the same.
The courts ought not to take the action lightly and interfere with the
same particularly when there was some material for the Government to
act one way or the other. .......

111. After examining the facts and the law laid down in
abovementioned seven cases, in my opinion, the ratio laid
down in these cases can be summarized thus:

111.1 First, in a case where several candidates are found
involved in "mass copying" or in other words, where vast
majority of candidates were found to have resorted to use of

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unfair means in any examination then it is not necessary for
the concerned Institute to give any show cause notice to any
individual candidate before cancellation of his result;

111.2 Second, when it is difficult to prove by direct
evidence that the "copying" was done by the candidates then
the same can be proved by drawing inference based on
probabilities and circumstantial evidence;

111.3 Third, there are several ways in which unfair
means can be resorted to by the candidates for doing copying
individually or in the large scale by vast majority of
candidates;

111.4 Fourth, where few candidates are found involved in
doing copying then it is necessary to give to individual
candidate a show cause notice by following rules of natural
justice before taking any action against him;

111.5 Fifth, there must be some material (whether direct
or based on probabilities and circumstances) to prove that a
candidate resorted to unfair means for doing copying in
answering his question paper;

111.6 Sixth, if there is adequate material to prove that
the copying was done by individual candidate or by the
candidates on a large scale then even if no report was
submitted by any invigilator of any such incident yet it would
be of no significance;

111.7 Seventh, the Court should not act as an appellate
Court over the decision of Expert Committee to examine the
issue of "copying" or/and "mass copying", i.e., copying done
on a large scale by vast majority of candidates and more so
when the Expert Committee has found the candidate guilty of
resorting to unfair means;

111.8 Eighth, the Court should be slow to interfere in the
decision taken by the Expert Committee in such cases;

111.9 Ninth, if wrong answers of two candidates sitting
in close proximity tallies with each other then it would be a
strong circumstance of copying done by these two candidates;

111.10 Tenth, this Court has consistently maintained a

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distinction between a case of "copying" and "mass copying",
i.e. copying done on a large scale by vast majority of
candidates for applying the rules of natural justice to the
case. In the case of former, rules of natural justice would be
applicable and hence show cause notice to individual
candidate who is accused of doing copying will have to be
given to such candidate whereas in the case of later, the rules
of natural justice are not applicable and hence it is not
necessary to give any show cause notice to any candidate
involved in mass copying;

111.11 And Eleventh, the use of unfair means by any
candidate is a serious matter because it affects the credibility
of the examination and, therefore, once such charge is held
proved against any such candidate, the matter needs to be
dealt with sternly in relation to erring candidates.

112. When I examine the facts of the case at hand in the
light of ratio laid down in the aforementioned cases, then I
find that the facts of the case at hand are identical partly to
the facts of the case of Bihar School Examination Board
(supra) and partly to the facts of Bagleshwar Prasad and
Prem Prakash (supra). This I say for the following reasons.

112.1 First, this is a case where large number of
candidates (more than two hundred) in the examinations
held from 2008 to 2012 were found involved in copying like
what was noticed in the case of Bihar School Examination
(supra) where 36 candidates were found involved in copying.

112.2 Second, there was uniform pattern adopted by the
candidates for doing copy in the examinations. This
circumstance lends support to the fact that "mass copying"
was done by the candidates in a planned manner;

112.3 Third, candidates who managed to sit in pair in
close proximity (described as "scorer" and "beneficiary"), their
wrong answers consistently matched with each other. This
circumstance was relied on in the cases of Bagleshwar Prasad
and Prem Prakash Kalunia (supra) for forming an opinion
that both the candidates copied from each other;

112.4 Fourth, the material seized in investigation prima
facie established that "mass copying" was done in a planned

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manner by the several candidates (appellants herein) to
enable them to answer the questions;

112.5 Fifth, interpolations were found in sitting plan
originally made by Vyapam for some years to accommodate
the candidates (appellants) and others like the appellants to
sit in a particular examination center in close proximity with
each other so that they are able to copy from each other;

112.6 Sixth, many candidates despite clearing the
examination did not take admission in any medical college.
There was no satisfactory answer given by them barring very
few;

112.7 Seventh, material seized in investigation was found
sufficient by the Expert Committee to form an opinion that it
was a case of "mass copying". In addition it was also
established on probabilities and circumstantial evidence that
the candidates in large scale which included the appellants
did mass copying;

112.8 Eighth, the Expert Committee examined the issues
from all angles and analyzed the material seized for coming
to a conclusion that it was a case of "mass copying" done by
the candidates in large scale as a part of a planned strategy
and that they used unfair means;

112.9 Ninth, allegations of mala fides were not alleged in
the writ petitions by any candidate against any member of
Expert Committee or/and officials of the State/Vyapam;

112.10 Tenth, the writ court rightly did not act as an
appellate court to reverse the decision of Expert Committee;

112.11 Eleventh, the formula evolved by the Expert
Committee was usually applied in such type of cases by
various institutions and no perversity or/and arbitrariness
was shown by the appellants in the formula except to contend
that it was not a proper formula;

112.12 And lastly, the expression "mass copying" not being
defined in any Act/Regulation/Rules, its meaning in ordinary
parlance can be summed up as "sizable or large number of
candidates found copying or discovered to have copied while
answering their question paper by using unfair means in

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examination". In my view, this fully applies to the facts of the
case at hand.

. In Gohil Vishvaraj's case (supra), it is held;

Identifying all the candidates who are guilty of
malpractice either by criminal prosecution or even by an
administrative enquiry is certainly a time consuming process. If it
were to be the requirement of law that such identification of the
wrong doers is a must and only the identified wrongdoers be
eliminated from the selection process, and until such identification
is completed the process cannot be carried on, it would not only
result in a great inconvenience to the administration, but also
result in a loss of time even to the innocent candidates.

In following cases, cancellation of examination was held not
justified:

(i) Union of India and others vs. Rajesh P.U.,

Puthuvalnikathu and another (2003) 7 SCC 255. In this case, CBI

had held examination for 134 posts of constables in April 2000. The

petitioner was selected and appointed and was asked to undergo

medical examination. The unsuccessful candidates made complaint

challenging the selections alleging favouritism and nepotism.

Though the allegations were found baseless, it was noticed that,

incorrect answers were awarded marks in certain cases and correct

answers were assessed to be wrong and denied marks. A Committee

was constituted which meticulously and thoroughly identified all

such cases individually. In this context, the Apex Court held that,

cancellation of entire examination was not justified. It was held:

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4. ...... It appears that the stand on behalf of CBI
before the High Court was that though the allegations of nepotism and
favouritism were found to be baseless, in some cases of evaluation of
answer sheets incorrect answers were found to have been awarded
marks and in certain other cases even correct answers were assessed to
be wrong and denied marks. In some cases, one or more of the answers
seem to have been not evaluated for awarding marks and overlooked,
while excess marks than allowed seemed to have been awarded in
certain cases for one or other questions..........
6. ....... In the light of the above and in the absence
of any specific or categorical finding supported by any concrete and
relevant material that widespread infirmities of all pervasive nature,
which could be really said to have undermined the very process itself
in its entirety or as a whole and it was impossible to weed out the
beneficiaries of one or other of irregularities, or illegalities, if any,
there was hardly any justification in law to deny appointment to the
other selected candidates whose selections were not found to be, in
any manner, vitiated for any one or other reasons. Applying an
unilaterally rigid and arbitrary standard to cancel the entirety of the
selections despite the firm and positive information that except 31 of
such selected candidates, no infirmity could be found with reference
to others, is nothing but total disregard of relevancies and allowing to
be carried away by irrelevancies, giving a complete go bye to
contextual considerations throwing to winds the principle of
proportionality in going farther than what was strictly and reasonably
required to meet the situation. In short, the Competent Authority
completely misdirected itself in taking such an extreme and
unreasonable decision of canceling the entire selections, wholly
unwarranted and unnecessary even on the factual situation found
too, and totally in excess of the nature and gravity of what was at
stake, thereby virtually rendering such decision to be irrational.

[ii] In Vikas Pratap Singh and others vs. State of

Chhattisgarh and others reported in (2013) 14 SCC 494, it is held:

25. Admittedly, in the instant case the error committed by
the respondent-Board in the matter of evaluation of the answer
sheets could not be attributed to the appellants as they have neither
been found to have committed any fraud or misrepresentation in
being appointed qua the first merit list nor has the preparation of the
erroneous model answer key or the specious result contributed to
them. Had the contrary been the case, it would have justified their
ouster upon re-evaluation and deprived them of any sympathy from
this Court irrespective of their length of service.

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26. In our considered view, the appellants have successfully
undergone training and are efficiently serving the respondent-State
for more than three years and undoubtedly their termination would
not only impinge upon the economic security of the appellants and
their dependants but also adversely affect their careers. This would
be highly unjust and grossly unfair to the appellants who are
innocent appointees of an erroneous evaluation of the answer scripts.
However, their continuation in service should neither give any unfair
advantage to the appellants nor cause undue prejudice to the
candidates selected qua the revised merit list.

[iii] Joginder Pal and others etc. Vs. State of Punjab and
others reported in (2014) 6 SCC 644.
During regime of Mr. Sidhu as a Chairman of Punjab Public

Service Commission in 1996 to 2002, several appointments of Class-I

posts were made including of Judicial Officers. On receiving

information of Mr. Sidhu receiving bribe, raids were conducted and

huge sum of Rs. 16.00 crores was recovered from him. This led to

FIR and lodging of prosecution against him and other officers of

Executive Branch and allied services. Some wards of Sitting Judges

of the High Court were allegedly favoured during 1998-2002. The

report was accepted by Full Court. Consequently the service of

judicial officers was cancelled. It was held:

"43. Apart from inferences drawn on certain facts and in
particular the circumstances enumerated by the High Court
which have been repeated by the learned counsel for the State
before us, it is difficult to accept that it was demonstrated by
the State that it was absolutely impossible for it to separate
the innocent people from the tainted ones.

xx xx xx

45. If fraud in the selection process was established, the State
should not have offered to hold a reselection. Seniority of

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those who were reselected ordinarily could not have been
restored in their favour. Such an offer was evidently made as
the State was not sure about the involvement of a large
number of employees.

46. A distinction moreover exists between a proven case of
mass cheating for a board examination and an unproven
imputed charge of corruption where the appointment of a
civil servant is involved.

xx xx xx

50. In those cases also tainted cases were separated from the
non-tainted cases. Only, thus, in the event it is found to be
impossible or highly improbable, could en masse orders of
termination have been issued.

51. Both the State Government as also the High Court in that
view of the matter should have made all endeavours to
segregate the tainted from the non-tainted candidates.

30. In this case, Mr. Sidhu and his accomplices had
taken money/bribes from some of the candidates or had given undue
favour to some other candidates because of other influences. The
material discussed is the allegations in various FIRs and statements of
Mr. Jagman Singh, a confident and tout of Mr. Sidhu (who had
become approver in the criminal case), and others recorded under
Section 161 of the Code of Criminal Procedure, 1973 and the cases in
the criminal trial. However, even after noticing these very reasons,
this Court had held that those who are innocent cannot be punished
because of the misdeeds of Mr. Sidhu in showing favour to other
tainted candidates.

31. There is yet another reason to hold that these
persons who have come up clean, meaning thereby, who have
entered the service by passing the examination on their own merits,
should be allowed to continue in the Government service. We have
already mentioned in the earlier part of the judgment, while
discussing the case of Inderpreet Singh Kahlon (supra), that the
Court had not approved the recommendation of the High Court, on
the basis of which the Government had acted, in respect of the
judicial officers whose services were also terminated. It is not
necessary to state in detail the reasons given by the Court while
condemning the action of terminating the services of the judicial
officers, which was taken in undue haste. The Court had also

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remarked that all these judicial officers were subjected to viva
voce/interview test as well, which was conducted as per Rule 17(a)
(iii) of the Punjab Civil Services (Punishment and Appeal) Rules,
1970, and no breach of the aid Rule had been pointed out. The
Committee which interviewed these judicial officers included a Judge
of the High Court as well. The Court categorically observed that there
may be some cases where marks had been given for extraneous
considerations, but only because there was such a possibility, the
same by itself, without analysing more, may not be a ground for
arriving at a conclusion that the entire selection process was vitiated.
The direction was, accordingly, given to consider the entire matter
afresh.

[v] In Onkar Lal Bajaj and others Vs. Union of India and
another reported in AIR 2003 SC 2562.
56. In our view, the Government should not have
exercised the power in a manner so as to enable it to escape the
scrutiny of allotments exposed by the media. No arbitrary exercise of
power should intervene to prevent the attainment of justice. Instead
of passing the impugned order, in the context of the facts of the
present case, the Government should have ordered an independent
probe of alleged tainted allotments. The impugned order had the
twin effect of (1) scuttling the probe and (2) depriving a large
number of others of their livelihood that had been ensured for them
after their due selections pursuant to a welfare policy of the
Government as contained in the guidelines dated 9th October, 2000.
The public in general has a right to know the circumstances under
which their elected representatives got the outlets and/or
dealerships/distributorships.

34. In the light of these guiding principles, we proceed to

consider the facts of the present case.

(a) The first defect argued is that, though the contract was

given to Manipal Technology and though the sub-delegation was not

permissible, Manipal Technology assigned the work to Chanakya

Softwares. Chanakya Softwares had participated in the tender

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process & was L-2. The Vigilance is silent about subcontract to

Chanakya and its participation. There are specific contentions of the

petitioners that, at the time of examination the officers of the

respondents were monitoring and supervising the recruitment

process. There was video recording and CCTV footage. There is no

denial to this fact. In the light of these facts, we find that, the

respondents must be certainly aware that the outsourcing agency

Manipal Technology had given sub-contract to Chanakya Softwares.

No objection was raised in this regard. In fact, the outsourcing

agency submitted results in January-2016 when the examinations

were held in March and May-2015. There was further scrutiny and

some suggestions were made by the respondents on the basis of

reevaluation and thereafter in March-16, the result was declared. It

is therefore certain that, the participation by Chanakya Softwares

with the consent of Manipal Technology was never objected nor

taken as a serious discrepancy or irregularity. The Vigilance Report

does not disclose how the participation by Chanakya Softwares

affected recruitment process. We find that the respondents had even

declared the results and appointed 395 persons (the department

admits appointments of 356) on the basis of the results submitted by

Manipal Technology. Therefore, participation by Chanakya

Softwares was not treated as a serious irregularity so as to vitiate the

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entire examination.

(b) Another defect noticed was that, the answer sheets

provided were having eight boxes for recording the serial number of

the candidate whereas' many candidates were given registration

number of nine digits. The candidates were required to add one

more box to write down the entire number. The respondents claimed

that this irregularity was such that the software could not have

accepted the change and manual intervention was a certainty. Minute

and deep inquiry by vigilance of the papers has not disclosed that it

resulted into any favoritism or giving of more marks or less marks to

the candidates. It can be assumed that each candidate must have

recorded the answers at the time of examination, and thereafter, in

multiple choice questions where the answers are to be recorded by

darkening the bubbles, there was no scope for subsequent

intervention and change in the answers. It is to be noted that this

defect must have been discovered at the time of examinations in

March and May-2015. After the complaints from Amravati and

Bombay, the Vigilance Team has closely scrutinized all the answer

sheets of the successful candidates. There is no report of Vigilance

Team that the marks allotted to successful candidates were not as per

the answers given by them. It is not the case of the respondents that

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the discrepancy in the boxes meant for writing the number or manual

intervention has affected the results and the results were not as per

the answers given by the candidates. This discrepancy or irregularity

was not found by the respondents very serious and in spite of these

discrepancies, the results were declared after due deliberation. The

results were declared in May - 2016 almost one year after the

examination. Even the appointments orders were issued to 395

candidates. The stand taken by the respondents that these

discrepancies and defects vitiate the entire examination is clearly

afterthought. If no complaint would have been received, the

respondents were ready to rely on the recruitment process and to

ignore the irregularities pointed herein above. It is not shown how

these discrepancies tampered the recruitment process.

petitioners that, if the outsourcing agency has left irregularity in the

answer sheet, the candidates had no option but to add one box to

record their nine digit number. This cannot be treated as making

marks for identification. There was no fault on the part of the

candidates. Learned counsel for the respondents failed to point out

how this irregularity has resulted into miscarriage of justice.

Therefore, the entire examination cannot be cancelled on the ground

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of these discrepancies.

(d) There is also no substance in the contention that the

manual intervention was to be totally avoided. In fact, the rules itself

disclosed that there should be random manual reevaluation of 10 %

papers by the outsourcing agency. Thereafter even the respondents

were supposed to reevaluate 1% papers by random checking. Thus

the outsourcing agency had every access to the answer sheets and the

entire examination cannot be cancelled only on the ground that there

was manual intervention in the examination papers.

35. There are certain admitted facts which are not considered

by the Vigilance Team as well as by the respondents. Before

discussing the suspicious circumstances, it is necessary to mention

these facts.

a). Though several successful candidates have challenged the

cancellation of examination, pertinently, no complaint is received

from the unsuccessful candidate. No judicial proceeding has been

initiated by any unsuccessful candidates. This is significant in the

light of the fact that, the answer key was uploaded on the website

after the results were over. No unsuccessful candidate came forward

with a plea that though his answers were correct the marks given to

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him were on lower side and not according to his answers. Even the

Vigilance Team has conducted search only in respect of successful

candidates.

b). There was no complaint that the marks allotted to the

successful candidates were not as per the answers given by them.

There was deep inquiry by vigilance team. There was also inquiry by

EOW Police but, no material has been brought on record to show that

the marks allotted to the successful candidates were not as per their

answers.

c). There was no suspicion for the department for a period of

one year and three months after the exams and the results submitted

by the outsourcing agency were accepted and even appointment

orders were issued to 395 candidates. They had undergone training

and had joined the duties. It indicates that if there would not have

been any complaint from Kandivali Post Office, the respondents

would have proceeded as per the results submitted by the

outsourcing agency.

(d). The Vigilance Report shows that, there was no case of

impersonation even in case of Hardeep Singh and the possibility of

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successful candidates sitting near each other is ruled out assuming

that they must be sitting as per their serial number.

(e). In vigilance report it was observed that, no pattern of

question sets was noticed and there was possibility that candidates

might be getting good marks by intelligent guessing or wild guessing.

36. The respondents have given a chart showing malpractices

in 1699 cases of Postman and 622 cases of MTS, total 2321 out of

2334 candidates selected. In oral arguments, it was argued that the

malpractices and irregularities were found upto 46%. It was also

argued that, the malpractices were widely spread and were found at

majority of the centres (52 divisions in case of MTS and 46 divisions

in respect of Postman/Mail Guard out of 56 divisions). After

carefully considering the record, we find that this is not only highly

exaggerated version but it is not in conformity with the report of

vigilance. The vigilance report at Pg. 8 & 9 discloses tainted

candidates 159 in case of Postman and 74 in case of MTS, total 233

only. The chart produced by the Vigilance Committee indicates that,

these tainted candidates are also localized as follows: -

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Sr. No. Region Postman M.T.S. Total

1. Haryana 53 3 56

2. Akola 7 13 20
3. Amravati 28 16 44
4. Nagpur M. 9 8 17

5. Beed 4 8 12
6. Parbhani 9 2 11
---------------------------------------------------------------------------

Total 159 74 233

37. The above figures disclose that tainted candidates were

only 10%. The same chart shows the figures of Marathwada region

and adjoining districts, (from where the petitioners must have

appeared for the examinations) as follows;

Sr. No. Region Postman M.T.S. Total

1. Aurangabad 1 0 1
2. Beed 4 8 12
3. Parbhani 9 2 11
4. Nanded 1 4 5
5. Osmanabad 2 5 7
6. Dhule 2 2 4
7. Jalgaon 2 0 2
8. Nashik 1 0 1
9. Malegaon 6 2 8
Total 28 23 51

38. The charts produced at Pg.38 by the respondents showing

1699+622 irregularities noticed shows the factual position with regard

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to Marathwada and adjoining districts as follows:-

Sr. Station Sign Photo Vigilance No Suspiciou Successful Passed in
No. difference difference noted Attendance s marks candidates both the
variations Sheet in poor in exams
Problem Marathi Academic with poor
in Std. X
1 Aurangabad 0 0 2 2 0 4 1
2 Beed 0 0 0 2 1 0 1
3 Parbhani 0 0 1 2 0 3 0
4 Osmanabad 0 0 1 0 0 4 0
5 Nanded 0 0 0 1 0 2 0
6 Nashik 0 0 0 2 3 1 0
7 Malegaon 0 0 0 1 1 0 0
8 Jalgaon 2 0 1 1 1 1 0
9 Dhule 1 0 0 1 2 0 0
10 Bhusawal 0 0 0 3 2 1 0
Total 3 0 5 15 10 16 2
Total 51

39. This chart shows that, there was hardly any malpractice or

irregularities noticed in Marathwada region and in the adjoining

districts from where the petitioners appeared for the exams. This

figures do not support the stand taken by the respondents that there

was wide spread pervasive irregularities at all centres. It is not a case

of leakage of paper or mass copying in these centres.

40. The Vigilance Team noticed problems which can be

clubbed subject-wise as follows:

(i) Identity problem : -

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Sr.No. Particulars of malpractices Postman MTS
1 Signature variation in pre appointment : 151 35
formalities.
2 Photo variation in pre-appointment : 95 19
formalities.
3 Signature variation noticed by Vigilance with : 32 18
OMR Signatures.
4 OMR Registration : 534 123
5 Attendance Sheet not found. : 55 1
6 Name of selected candidates not found in : 1 0
attendance Sheet
7 Attendance sheet found without signature : 1 0
of candidates and without signature of
Invigilator.

. These figures are exaggerated figures in view of defective

printing of answer-sheets providing only eight bubbles for nine digit

number. Such irregularities are 355 in OMR sheets which are not

irregularities. We find that, if a student is shown absent at the time

of examination and his answer sheet is on record and if he is

successful, it is case of suspicious result which requires inquiry.

Similarly, if a candidate has not signed attendance sheet or the

invigilator has not signed the answer sheet, the issue may arise about

the presence of the candidate at the time of examination. Similarly

in cases of answer sheets showing overwriting on roll number of

name are also cases which require inquiry. By very nature, they can

be identified and can be segregated. They should be individually

dealt with.

(ii) Suspicion of Collusion and Conspiracy :-

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Sr.No. Particulars of malpractices Postman MTS
1 Candidates of other State as per : 155 27
permanent address appeared.

2 Common Mobile No. : 24 21
Including 12 Siblings Inclu-ding 10 Sib -lings
3 Common Email ID. : 137 57
Including 16 Siblings Inclu-ding 12
Siblings
4 Common Communication : 51 46
Address. Including 22 Inclu-ding 22 Siblings
Siblings
5 Common Permanent Address. : 54 46
Including 22 Inclu-ding 22 Siblings
Siblings

41. We find no suspicious circumstances in siblings having

common mobile number, common email Ids and common permanent

address. It may be due to poverty or the siblings might be from rural

area. It was argued that, there was not only common mobile number,

email id's or common permanent addresses but the answers given by

the candidates having such common mobile numbers were identical

both right as well as wrong answers. As held by the Apex Court in

Nidhi Kaim's case (para 49), the similarity of right answers is not

much relevant. The identity of wrong answers is certainly relevant.

The following chart prepared from the vigilance report discloses the

similarity in wrong answers is negligible.

Postman MTS
Sr. Particulars
Selected Similarity in wrong Selected Similarity in wrong
No.
answers above 70% answers above
70%
1 Similar mobile nos. 24 2 21 8
2 Similar email Ids 137 15 57 16
3 Selection of siblings 22 4 22 8
4 Same communication 51 10 46 16
address
5 Same permanent address 54 10 46 16
Total 288 41 192 64

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42. The siblings reside together, use same books and guide and

study together. Some similarity in their answers is quite natural.

Hence these candidates can't be called as tainted candidates. We

therefore do not agree that there was high percentage of similarity in

wrong answers and therefore we find that these facts are not

suspicious in nature. In spite of vigilance inquiry and police

investigation, no proper link could be collected to show that giving of

common mobile number, email ID or common addresses was

intended for conspiracy and thereby candidates have been benefited.

(iii) Suspicious results and suspicious high marks :-

Sr.No. Particulars of malpractices Post MTS
man
1 Candidates of other State securing goods marks in : 110 18
Marathi i.e. above 60%.
2 Candidates passed with poor academic background : 157 69
(Less than 50% in SCC)
3 Passed both examinations. : 102 102
4 Passed Both examinations but have poor academic : 18 18
background.

43. It is a material circumstance that, candidates having no

Marathi, English or Math subject at SSC level have scored very high

marks in these subjects. Similarly is the case with candidates having

failed in SSC and have secured high marks in these subjects or over

all. We agree that these facts indicated leakage of paper or copying.

Question is, whether it is a case of mass copying or mass leakage

spread over whole state.

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44. The Vigilance Report shows following candidates have

scored over 60% marks in the subjects referred.

Sr. No. Particulars Number of candidates
(i) Candidates having no Marathi in SSC scored 111 - 18

well in Marathi.
(ii) Candidates failed in SSC scored well in Marathi. 0-1
(iii) Candidates having no Maths in SSC, scored well 5-0

in Maths.
(iv) Candidates failed in SSC, scored well in Maths. 8-2
(v) Candidates having no English in SSC, scored 2-0

well in English.
(vi) Candidates having failed in SSC, scored well in 28 - 2

English.
Total 154 - 23

45. We find that, the Vigilance Team wrongly shown the

candidates securing above 60% marks in recruitment exam in Maths,

English and Marathi as tainted candidates if their marks in SSC were

below 50%. In SSC, the candidates are immature. Thereafter they

might have graduated, realized the importance of jobs and might

have taken coaching and after long gap they must have appeared for

recruitment exam. We feel that, the increase in marks below 25%

cannot be treated as suspicious. The marks of candidates cannot be as

per the marks in SSC, otherwise there was no purpose in holding the

recruitment examination. The candidates could have selected on the

basis of marks in SSC. In Ahmednagar District Central Cooperative

Bank Ltd., Vs. The State of Maharashtra, (Writ Petition No. 8811

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of 2018, to which one of us S. V. Gangapurwala, J. was party),

decided on 08.04.2019, this Court has held that the persons not

scoring good marks in academics can secure good marks in

recruitment. We feel that, the Vigilance Team instead of trying to

identify and segregate the tainted candidates included the above

referred candidates as tainted to increase the tainted candidates and

justify the cancellation of the whole examination.

46. We find that, the figures given by the Vigilance Team as

referred in the chart are very low as compared to the number of

candidates appearing and number of candidates successful. The

Vigilance Team has shown higher figure of 111-18 of candidates

securing high marks in Marathi when the Marathi was not the subject

in SSC but this figure includes the candidates having mother-tongue

Marathi and appearing for SSC from other State. These figures

should have been excluded. The candidate having mother tongue

Marathi can score well even if it is not a subject for him at SSC level.

47. It is no doubt true that this high percentage of marks in

Marathi, English and Maths as compared to the marks obtained by

the candidates in the same subjects in SSC level is highly suspicious

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circumstances indicating the possibility of leakage or copying.

However, we find that, these are very small figures and these

instances have occurred at few centres probably at Mumbai. Most of

these candidates are from other States particularly Haryana and

Bihar. Complaint by Kandivali Post Office discloses the names

indulging in these irregularities and it is apparent that, around 40

candidates from other States were involved in it. Thus, leakage or

copying is not wide spread and it is restricted to certain localized

centres. Therefore, these candidates can be and must be identified,

segregated and separately dealt with.

48. The Vigilance Report shows that, large number of

candidates from Bihar, Haryana have been successful. The figures

are as follows:

Sr. No. State Postman MTS Total
1 Bihar 45 7 52
2 Haryana 81 9 90
3 Maharashtra 1546 706 2252
Total 1701 733 2434

49. Again, figures of successful candidates from some centres

in Maharashtra are significant as follows:

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Sr. No. Centre Postman MTS Total
1 Akola 28 16 44
2 Amravati 9 8 17
3 Akola 7 13 20
4 Beed 4 8 12
5 Parbhani 9 2 11
Total 57 47 104

50. These are shown to be tainted candidates. The tainted

candidates at Amravati and to some extent at Akola and Nagpur are

high. Same is not the case with other centres. The vigilance should

have checked the papers of successful candidates from particular

centres to find out some link between them. No such record is

produced. We find that, this leakage or copying if any, must have

been localized and it is necessary to identify them and segregate

them. The figures are not high and segregation is possible.

51. The Vigilance Team has also reported that the candidates

scoring below 50% in SSC have scored above 60% over all in the

recruitment process as follows.

Postman - 157

MTS - 069

52. We find that, the approach should have been to find out

the tainted candidates and marginal difference of 10 to 15% marks in

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SSC examination and recruitment exam should not have been given

undue importance.

53. Similarly, the vigilance committee reported that 102

candidates from other States have been successful. We find that, it is

not a suspicious circumstances. Large number of people from the

other states get attracted to this State for employment and business

and they settle here. If the candidates are from other States this fact

by itself cannot be a ground of suspicion. It is reported that, 18

candidates have secured more than 60% marks in recruitment, when

their record was poor in SSC. These candidates can be identified and

segregated and existence of such small number of candidates cannot

be considered as a sample of mass copying and mass leakage.

54. As laid down in Joginder Pal and others etc. Vs. State of

Punjab and others reported in (2014) 6 SCC 644 and Union of

India and others vs. Rajesh P.U., Puthuvalnikathu and another

and the judgments relied upon by the respondents, the department

must have made every effort to segregate the tainted candidates from

untainted candidates and only when it was impossible, the entire

examination could have been cancelled. It was irrational,

unreasonable and unfair on the part of the respondents in

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considering the cases which cannot be said to be tainted cases and

increasing the figure of tainted cases so as to justify the cancellation

of entire examination.

55. We find that the respndents have not made serious efforts

to segregate the tainted candidates from untained candidates. As

held in Union of India and others vs. Rajesh P.U.,

Puthuvalnikathu and another (2003) 7 SCC 255, it was obligatory

on the respondents to do so The principles for selecting "least

injurious means" or "minimal impairment" propounded in K. Shyam

Kumar's case (supra) (para 36) and the indefeasible and principled

approach to proportionality as laid down in para 39 of K. Shyam

Kumar (supra) are to be followed. Within the limited scope to judicial

review, we don't dispute the data/facts collected by the respondents

but consider the inferences drawn therefrom.

56. On considering the entire facts and circumstances, we do

not find that the percentage of malpractices, leakage of paper or

irregularities is very high and widely spread. The really tainted

candidates may be very few and most of them are from other States.

Those can be identified and segregated and can be separately dealt

with. The petitioners who are not at fault and who are not at all

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tainted should not suffer on account of the dis-proportionate and

unreasonable decision taken of cancellation of the entire

examination. Applying the test of Doctrine of Proportionality with

emphasis on selection of least injurious means or minimal

impairment, we find that the cancellation of entire examination is not

sustainable. The decision is irrational and unreasonable as the

tainted candidates are small in number and can be segregated. It is

not a case of mass leakage of paper or mass copying spread all over

the State. Probably the petitioners have appeared in the examination

from the centres where no mass copying or mass leakage of papers

seems to be noted. We make these observations on the basis of

material produced before us. The result of investigation of criminal

case was not produced before us nor relied by the respondents and

these observations should be restricted for deciding these petitions

only. In the light of the judgments of the Apex Court, we find that

the cancellation of the entire examination was unjustified and not

sustainable. We, however, wish to allow the respondents to consider

cases of the petitioners again with a minute scrutiny and thereafter

allow them to join the duties or to issue appointment orders.

57. The Apex Court in Nidhi Kaim's case (supra) in para 133,

134 and 135 has explained the importance of such exams to assess

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the skill and knowledge. It is also discussed how the malpractices,

academic fraud or cheating in the exam is existing since beginning

and how it is on the rise and how it is a threat to the public trust in

reliability and credibility to the system as a whole. The Apex Court

reminded of the collective responsibility of the Government and

educational institutions to evolve a uniformed policy in

comprehensive manner to deal with such activities in the larger

public interest.

58. We also feel that, the mass copying, leakage of paper are

curse to the system of assessment of the competency and merits. The

persons indulging in such activities, within short time, on the basis of

acquired manipulated intelligence, take away the fruits from

hardworking meritorious students. We feel that, malpractices and

irregularities occur at following levels:

(i) Leakage from the paper setter himself.
(ii) Leakage when the paper is sent for printing.
(iii) Lack of control over the examination process by supervisors
and permitting the candidates to indulge in copying either by asking
questions to other or by using copying material.
(iv) Tampering of answer-sheets while in custody of examiner
or awarding higher marks for extraneous considerations.

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59. We feel that, when there is examination involving lakhs of

candidates, there should be a first screening test to bring down the

candidates to five times or ten times of the vacant posts. Thereafter

the departments can focus on short number of candidates in a better

manner.

60. We feel that, the highest authorities of the department

should call question papers from three or five paper-setters just one

or two hours before examination and ask the paper setters to set the

paper just hour before the exam. The highest authority may choose

anyone of them or may set up his own paper by taking the questions

from all the papers. This will prevent leakage of paper from the

paper setters.

61. We feel that, if the printing of the paper is avoided and the

paper set up is forwarded to the concerned centres just one hour

before the examination by hack-free email, the leakage of papers

during the printing process can be avoided. A care can be taken that

the superior officers of the department should receive the emails and

take out the necessary numbers of copies and personally provide the

papers at the centres in sealed envelope.

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62. Before finalizing the paper set up, care should be taken to

see that there are no defects in the questions like question out of

syllabus, repetition of the same questions, the question having more

than one answers or a vague question.

63. There should be strict vigilance to avoid identification

problem. The admission cards should be issued on the basis of

reliable documents of identity and photographs, signatures and if

necessary by taking thumb impression. The care should be taken to

see that the person applying is the person appearing for the

examination. There should be prohibition from carrying mobiles or

any other electronic devices at the exam and there should be frisking

so that no copying material or electronic devices are carried by the

candidates. Besides, there should be video recording, CCTV and

mobile jammers at the time of examination.

64. We feel that when the candidates are busy in writing the

first paper,another paper should be set up in the above referred

manner and the candidate should appear for the same with a break of

half an hour. Meanwhile they should not be allowed to go outside

and there shall not be permission to use the mobiles. This will ensure

that the candidates do not get any access to the second paper.

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65. The department may take the help of outsourcing agency

but there should be thorough inquiry about the integrity and

competency of the outsourcing agency.

66. The department should employ their officers along with the

representatives of the outsourcing agency at every level to prevent

impersonation, mass copying or leakage of papers or alterations in

the answer-sheets and at no stage representatives of outsourcing

agency should be given free hand.

67. A system should be evolved to examine the papers

immediately after the exams are over and as early as possible. It

should be ensured that the candidates will not have any scope to

approach the paper examiners. Top secrecy should be maintained

about the names of examiner.

68. The department should simultaneously maintain a

computerized record of the marks obtained by the candidates at SSC

and graduation levels and also in the screening test and in both the

exams. If anything suspicious is found, the answer-sheets of those

suspicious candidates should be immediately checked before

declaration of the results.

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69. These preventive measures may consume some more time

and raise the expenses but considering the consequences of failure of

the examination, it is necessary to improve the system. When lakhs

of candidates are appearing increase in exam fees can take care of

additional expenses. The performance should be assessed of the

candidates on the basis of marks obtained in both the tests. With

these suggestions, we proceed to pass the following order.

ORDER

1. All the Writ Petitions are allowed. The order of cancellation of the entire examination is set aside to the extent of the petitioners herein.

2. The respondents are directed to verify again, whether there are any suspicious circumstances and irregularities in case of the petitioners herein and if no such suspicious circumstances, irregularities or malpractices are found as discussed in the judgment, the selection of the petitioners be restored and further process shall be completed within a period of two months.

3. As far as the petitioners in Writ Petition No. 9910 of 2017 are concerned, the respondents shall verify their record as well and if ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 15:45:13 ::: 107 no suspicions circumstances or malpractices as discussed in the judgment are noted in their individual cases, their appointments shall be restored within a period of two months with 50% backwages.

4. In the facts and circumstances, we do not want to take any cognizance of the contempt. Hence, the Contempt Petition No. 663 of 2017 is dismissed.

5. We anticipate the request for stay of this order. Since we are granting time of two months for verification and giving effect to this order, no separate time is required to be given for obtaining stay order from the superior Court.

6. Rule is made absolute in the above terms with no order as to costs.

7. Pending civil applications, if any, stand disposed of.

              [ A. M. DHAVALE ]              [ S. V. GANGAPURWALA ]
                    JUDGE                             JUDGE



 Punde




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