Uttarakhand High Court
Smt Pinki Devi And Others vs State Of Uttarakhand And Others on 1 December, 2017
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 970 of 2017
Smt. Pinki Devi & others. ........Appellants
Versus
State of Uttarakhand & others. .......Respondents
Mr. Vinay Kumar, Advocate for the appellants.
Mr. Narayan Dutt, Brief Holder for the State of Uttarkhand.
Mr. A.S. Rawat, Senior Advocate, assisted by Dr. Kartikey Hari Gupta, Advocate for
respondent nos. 4.
with
Special Appeal No. 969 of 2017
Neeraj Singh Mahar & another. ........Appellants
Versus
State of Uttarakhand & others. .......Respondents
Mr. Vinay Kumar, Advocate for the appellants.
Mr. Narayan Dutt, Brief Holder for the State of Uttarkhand.
Mr. A.S. Rawat, Senior Advocate, assisted by Dr. Kartikey Hari Gupta, Advocate for
respondent nos. 3 & 4.
with
Special Appeal No. 905 of 2017
Kamal Bhatt & others. ........Appellants
Versus
State of Uttarakhand & others. .......Respondents
Mr. Rakesh Thapliyal, Advocate for the appellants.
Mr. Narayan Dutt, Brief Holder for the State of Uttarkhand.
Mr. A.S. Rawat, Senior Advocate, assisted by Dr. Kartikey Hari Gupta, Advocate for
respondent nos. 3 & 4.
Dated: 1st December, 2017
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
K.M. Joseph, C.J. (Oral) 2 There is defect in Special Appeal No. 970 of 2017, which we can ignore.
2. Since in these appeals common questions of law arise, we are disposing of the same by the following common judgment.
3. Special Appeal No. 905 of 2017 is filed against Writ Petition (S/S) No. 2105 of 2017. Special Appeal No. 970 of 2017 is filed against Writ Petition (S/S) No. 1941 of 2017. Special Appeal No. 969 of 2017 is filed against Writ Petition (S/S) No. 2571 of 2017.
4. Appellants are the petitioners in all the writ petitions.
5. Prayers sought in Writ Petition (S/S) No. 1941 of 2017, from which Special Appeal No. 970 of 2017 arises are as follows:
"i) Issue a appropriate writ, order or direction in the nature of Certiorari quashing the impugned order/letter dated 14.06.2017 (Annexure-9).
ii) Issue a appropriate writ, order or direction in the nature of Certiorari quashing the alleged inquiry reported dated 6.6.2017 as referred in order/ letter dated 14.06.2017 after calling from the respondents.
iii) Issue an appropriate writ, order or direction in the nature of Mandamus commanding and directing the 3 respondents to issue appointment letters to the petitioners pursuant to result declared on 29.03.2016 for the post of Village Panchayat Development Officer.
iv) Issue an appropriate writ, order or direction in the nature of Mandamus commanding and directing the respondents not to issue further advertisement for the post of Village Panchayat Development Officer during pendency of present writ petition."
6. Prayers sought in Writ Petition (S/S) No. 2571 of 2017, from which Special Appeal No. 969 of 2017 arises are as follows:
"i) Call for the records of the inquiry report in pursuance of which a decision has been taken by order dated 14.06.2017 to cancel the entire selection process.
ii) Issue a writ order or direction in the nature of certiorari for quashing the impugned decision regarding cancellation of entire selection as communicated by the Government to the Commission by letter dated 14.06.2017 (Annexure No. 9 to the writ petition), which is based upon the inquiry report dated 06.06.2017 as well as a writ, order or direction in the nature of certiorari quashing the interim inquiry report dated 06.06.2017 (Annexure No. 11 to the writ petition).
iii) Issue a writ, order or direction in the nature of mandamus directing the respondent authorities to issue appointment letters to the petitioners in pursuance of final merit list dated 4 29.03.2016 published on the website of the Commission on 30.03.2016.
iv) Issue a writ, order or direction in the nature mandamus directing to the respondent no. 1 to hold an enquiry against the respondent nos. 6 & 7 against whom a serious complaint was made by the then Examination Controller Dr. R.S. Pokharia on 09.05.2016 forwarded by the Chairman of the Commission by letter dated 09.05.2016, and if possible any independent agency may also be constituted to hold an inquiry against these respondents."
7. Prayers sought in Writ Petition (S/S) No. 2105 of 2017, from which Special Appeal No. 905 of 2017 arises are as follows:
"i) Call for the records of the inquiry report in pursuance of which a decision has been taken by order dated 14.06.2017 to cancel the entire selection process.
ii) Issue a writ order or direction in the nature of certiorari for quashing the inquiry report as well as the decision taken pursuant thereto dated 14.06.2017 (annexure no. 9 to the writ petition) passed by the Additional Secretary to the Government alongwith Office Memorandum dated 16.06.2017 (Annexure No. 10 to the writ petition) passed by the Secretary of the Uttarakhand Subordinate Service Selection Commission by which entire selection process in question has been cancelled.
iii) Issue a writ, order or direction in the nature of mandamus directing the 5 respondent authorities to issue appointment letters to the petitioners in pursuance of final merit list dated 29.03.2016 published on the website of the Commission on 30.03.2016."
8. For filling up 196 vacancies of Village Panchayat Development Officer, an advertisement was issued on 20.11.2015. The advertisement was issued by the respondent-Uttarakhand Subordinate Service Selection Commission (hereinafter referred as "the Commission"). The vacancies related to twelve Districts. It appears that the selection was to be held on the basis of the written examination. On the basis of the examination, it appears that select list was prepared, by which the vacancies of 196 posts were to be filled. It further appears, however, that the Controller of the Examination of the Commission wrote a letter dated 07.05.2016 pointing out that the two members of the Commission are making attempts to get the examination cancelled. Actually, the verification of the candidates was to be held from 16.05.2016 to 19.05.2016. It appears further that, pursuant to some complaints, the Principal Secretary, Personnel conducted an inquiry and submitted the report on 19.04.2016. The Principal Secretary found that there was no irregularity. Pursuant to the same, on 27.04.2016, the Joint Secretary, Personnel wrote to the Commission that it could proceed with the selection process. It is thereafter, on 20.05.2016, that a Committee came to be constituted by the Government consisting of the Additional Chief 6 Secretary, Inspector General of Police (Personnel) and the Additional Secretary, Law. Thereafter, a batch of writ petitions came to be filed by the persons, who were included in the select list, including the appellants. The writ petitions came to be disposed of with the direction to the Committee that the Committee shall submit its report within a period of four weeks from the date of judgment. Thereafter, it appears that Interim Report dated 06.06.2017 was issued by the Committee. It is, apparently, acting on the said Interim Report that the Government issued order dated 14.06.2017. The decision taken by the Government was to cancel the selection, which was held and it is, accordingly, that the writ petitions came to be filed. It is also not in dispute that the O.M. was issued by the Commission for canceling the selection.
9. Learned Single Judge did not interfere with the selection as such. However, the following directions were issued:
"13. After having made above determination, there are two options actually available before the State Government. First is to hold a fresh examination calling for fresh application and second, to have an examination only of the candidates who had appeared in the initial examination. Under these circumstances, it is the opinion of this Court that the second option seems to be proper. This Court, therefore, directs that only the candidates who had appeared in initial examination would be held eligible to appear in the 7 examination for the posts of Village Development Officer, for which examination must be held. It is further made clear that there shall be no increase or decrease in the posts for which the examinations were held initially by the Uttarakhand Subordinate Service Selection Commission. Let the same be done forthwith without delay."
10. Feeling aggrieved, the writ petitioners are before us.
11. We heard Mr. Vinay Kumar, learned counsel appearing for the appellants in Special Appeal No. 970 of 2017 and Special Appeal No. 969 of 2017. We also heard Mr. Rakesh Thapliyal, learned counsel appearing for the appellants in Special Appeal No. 905 of 2017. Besides, we also heard Mr. A.S. Rawat, Senior Advocate assisted by Dr. Karitkey Hari Gupta, learned counsel appearing for the Commission and also Mr. Narayan Dutt, learned Brief Holder appearing for the State of Uttarakhand.
12. Mr. Vinay Kumar, learned counsel for the appellants would submit that the Court may notice that the Principal Secretary had already found, by the report dated 19.04.2016, that there is no irregularity in the selection. He also reminds us about the relevance of the complaint sent to the Controller of Examination of the Commission alleging that efforts were being made to get the selection cancelled at the instance of two members of the Commission. Despite the Principal 8 Secretary clearing the matter without any further complaint, a Committee was appointed. He took us through the contents of the report of the Principal Secretary. He also took us through the contents of the report of the Committee consisting of three members, as we have noticed. He would submit certainly, it is not a case which warranted cancellation of the selection as a whole. If at all the cancellation was warranted, it would have been only to deal with the cases of those candidates whose selection was found to be vitiated in any way. He would further submit that, actually, a perusal of the nature of the allegations would show that this is not a case where there has been any tempering with the O.M.R. sheets. This is also not a case also which involves the leaking of the question papers. There is no case of mass copying by the students. This is not also a case, where there is any allegation of unfair means as such. Mistakes, which may have been committed by the candidates, cannot be elevated to the position of unfair means so as to warrant cancellation of the examination. He also pointed out that the decision is arbitrary and disproportionate. Apparently, the latter argument is based on the doctrine of proportionality. Commission has already found out the number of persons whose candidature came under a cloud and the rest of the candidates, including the appellants, could not be visited with such a drastic action by the State. There is no material on the basis of which it could possibly have come to the conclusion that the entire selection was vitiated and the matter required to be re-done. He 9 alleges violation of Article 14 of the Constitution of India. He would seek support of few decisions. He refers to us the decision of Hon'ble Court in the matter of Union of India and others Vs. Rajesh P.U., Puthuvalnikathu and another, reported in (2003) 7 SCC 285; Inderpreet Singh Kahlon and others Vs. State of Punjab and others, reported in (2006) 11 SCC 356; Gohil Vishvaraj Hanubhai and others Vs. State of Gujarat and others, reported in (2017) 4 Supreme 524; Chairman, All India Railway Recruitment Board and another Vs. K. Shyam Kumar and others, reported in (2010) 6 SCC 614; Nidhi Kaim Vs. State of Madhya Pradesh and others, reported in (2016) 7 SCC 615; Tanvi Sarwal Vs. Central Board of Secondary Education and others, reported in (2015) 6 SCC 573.
13. It is also pointed out that, in fact, the Commission has taken the stand in the Report dated 29.06.2016 that there was no irregularity in the conduct of the selection and, therefore, the Commission cannot be heard to fault the selection process in these proceedings. He would also submit that there is discrimination insofar as unequals are being treated equally.
14. Mr. Rakesh Thapliyal, learned counsel for the appellants apart from the arguments addressed by Mr. Vinay Kumar, Advocate, would make the following submissions before us:
He also laid emphasis on the complaint given by the Controller pointing fingers at two members 10 of the Commission, who are respondents, and it is, in short, the case that they wanted to get the selection process cancelled for their own reason. He would remind us that the complaint surfaced only after the selection process was completed. It is further submitted that the Court may notice that the Commission was having custody of the O.M.R. sheets. They were produced after sometime before the Committee. So, the Court may not rule out the possibility of manipulation, while the papers were in the custody of the Commission. He would also submit that the Statutory Rules, which govern the holding of the examination, would be a complete answer to the case that there was any irregularity. He would submit that there are various prohibitions/restrictions contained in the Rules and if the Rules have been observed, it is inconsistent with the same that any malpractice would have also happen. Therefore, he would further contend that the Court may not overlook the fact that the decision taken for canceling the entire selection process is premised on what is described as an Interim Report of the Committee. The Committee has sent papers for forensic examination at Hyderabad and it was refused by the Institute at Hyderabad and now it has been handed over to the Institute at Lucknow. When matters are in such a state of affairs, he questions the decision to go in for wholesale scraping of the selection already done. He would submit that the entire basis of the report of the Committee is questionable and cannot be made the basis for taking such a monumental decision as far as 11 the career of the appellants are concerned, namely, to cancel the selection, in which they have come out successful in their own right. He further sought to draw support from the judgment of the Allahabad High Court, which we shall make reference to.
15. Learned Senior Counsel appearing for the Commission Mr. A.S. Rawat would submit that the selection was held; though the Principal Secretary did conduct an inquiry; it was essentially based on the response given by the Controller of the Examination and the matter was concluded. The Government was not satisfied with the report of the Principal Secretary and constituted the three-member Committee. The Committee went into the matter. Discrepancies were found. It is the prerogative of the Government to decide, whether having regard to upholding purity in the matter of holding examination for the purpose of selection, to go in for cancellation of the examination. It is pointed out that no right, as such, exists in favour of the appellants to make their contentions in the manner they have done. The same stand is essentially echoed by the learned Brief Holder also.
16. We must first refer to certain documents which have been placed before us. The following is the Notes and Orders, which forms the decision of the Principal Secretary dated 19.04.2016. It reads as follows:
"NOTES AND ORDERS 12 Kindly take reference to the Letter No. 20/PS/Sa.Sri.Ra./2016 dated 7th April 2016 which was forwarded by the Secretary to the Hon'ble Governor, whereby complaints were presented before the Hon'ble Governor regarding- holding of the Examination. for selection of Village Panchayat Development Officer by the Uttarakhand Subordinate Services Selection Commission.
In respect of the said complaints detailed report was submitted by the Commission. As per the directions of the Hon'ble Governor detailed discussion was held with the Chairman of the Subordinate Service Selection Commission, Secretary and Examination Controller on the sad report as well as on the complaints received and the record produced by the Commission was also thoroughly examined.
Along with the report following complaints were received:-
1- Letter of Sri Pushpesh Tripathi, Central Chairman of Uttarakhand Kranti Dal 2- E-mail of Sri Bimal Chauhan;
3- Complaints received from all unemployed persons:
Following complaints are primarily reflected in the said letters:-
1- Selection of more than one candidate from the one family;
2- Selection of the relatives of Examination Controller and Secretary;
3- Publication of the answer-key by the Commission on 28-03-2016 and the evaluation of 87196 answer-keys and declaration of result on 30th March 2016;
4- A candidate securing 96.50 marks out of 98 questions.
In respect of the above complaints after examining the Commission provided following information:-13
I-A The name of the candidates which were given by the complainant on this subject, on examination it appears that the name of the mother of Sri Dinesh Kumar S/o Virendra Kumar, resident of Dehradun is Smt. Sunita Devi. The name of the mother of second candidate Sri Vikas Kumar S/o Virendra Kumar resident of District Udham Singh Nagar is Smt. Rekha Devi. Similarly, Sri Pradeep Kumar, Sri Amar Kumar, Sri Gaurav Chauhan, Sri Chandrapal Singh, Sri Lokesh Kumar and Sri Amit Kumar and other candidates are not of the same family, but belongs to different families, since the name of the father being common, therefore, this complaint has come forward.
1-B In the examination by the Commission, two families have been found whose two sons have qualified the said examination- Sri Saurabh Negi and Sri Gaurav Negi S/o Sangram Singh Negi are member of one family, but both have applied from separate Districts. In the same way in one another instance wherein Hamid Ali and Sher Ali S/o Liyakat Ali are also members of one family.
In respect of above the Commission has stated that in the Group 'C' Service Rules of the Government of Uttarakhand there is no such direction that more than one member of a family cannot participate in the examination. It is provided in the Rules that it is necessary that the candidate should be registered with the Employment Exchange in any District of the State. In these circumstances the Commission has no basis for restraining more than one member of 14 same family to appear in the examination.
2- On the subject of selection of relatives of the Officers connected with the Commission, the Commission has clarified that Km. Geeta Kanyal D/o Bahadur Singh Kanyal, R/o Banbasa, District Champawat has been selected under horizontal reservation category for physically challenged person. Dr. Kanyal, Secretary of the Commission is a resident of Didihat (pithoragarh) and Km. Geeta Kanyal has no relation with the Secretary of the Commission. Similarly, Km. Bhawana Pokhariya D/o Deegar Singh Pokhariya, R/o Police Line Road Pithoragarh, and has no relation with Dr. R.S. Pokhariya, Examination Controller of the Commission.
3- The Officers of the Commission made it clear that the said examination was conducted on 6th March 2016 and the result was declared on 29th March 2016. The said examination was completely based on objective type questions and was conducted on the basis of OMR Sheet, for which auto scanner machines are available in the Commission, by which it is competent to declared the result of the examination immediately.
4- In respect of Point No. 4 the Commission has made it clear that out of 100 questions in the question booklet after canceling two questions, only 98 questions remain. Out of total 100 questions, 02 questions were really found to be suspicious on the basis of the answers as a result though 02 questions were cancelled, but the question paper was treated to be of 100 marks inasmuch as all the candidates 15 were equally given two marks for the cancelled two questions, In those circumstances the concerned candidate has correctly answered 95 question out of 100 questions, two questions were found to be incorrect. In this manner the concerned candidate had 94.50 marks and by adding 02 marks which were given to all the candidates, the same became 96.50 marks.
The officers of the Commission also informed that the transparency has been maintained in the process of setting of question paper, process of their printing and, evaluation of the answer books and etc. and the entire process for informing the candidates is online.
Thereafter, on this issue detailed discussions were held with Sri Tripathi, Chairman of UKD and some of the complainants and they could not produce any concrete evidence in respect of the subjects on which complaints were made.
On perusal of the record made available by the Commission, prima-facie, there appears no irregularity in the selection process of Village Panchayat Development Officer.
Sd/-19/4/16 (Radha Raturi) Principal Secretary, Personnel Chief Secretary Sd/-30.04.2016 (Satrughan Singh) Chief Secretary Hon'bIe Governor Sd/- 26.04.2016"
1617. This is followed by the communication dated 27.04.2016, which we have noticed, by stating that, as per the report made available by the Commission, prima-facie, no irregularity has been found in the selection process for Village Panchayat Development Officer. Paragraph no. 2 of the said communication reads as under:
"2- In respect thereof I have been directed to state that after detailed discussion in the matter at Government level a decision has been taken that the complainants have not made available any concrete evidence and as per the report made available by the Commission, prima-facie, no irregularity has been found in the selection process for Village Panchayat Development Officer. Therefore, in the above matter kindly ensure further necessary action as per Rules."
18. Next, we must refer to the actual inquiry report made by the three-member Committee. It reads as follows:
"Enquiry Report in respect of Village Panchayat Development Officer Examination.
The following Inquiry Committee has been constituted by the Office Memorandum No. 274/XXX(4)/2016- 03(8)/2016 dated 20th May, 2016 of Personnel Section-4 for inquiring the complaints received in respect of Village Panchayat Development Officer Examination conducted by the Uttarakhand Subordinate Service Selection Commission on 6th May 2016:-
1- Dr. Ranbir Singh, Additional Chief Secretary, Govt. of Uttarakhand (Chairman).17
2- Sri G.S. Martoliya, I.G. Personnel, Police Headquarters, Dehradun (Member). 3- Sri Mahesh Chandra Kausiva, Additional Secretary, Law, Govt. of Uttarakhand (Member).
2- The first meeting of the Committee was held on 7th June 2016 in which it was decided that the complainants be requested to put their side in person before the Committee by Press Advertisement and Newspaper in time and for this the Inquiry Committee has fixed the date 17th June 2016 at 11.30 a.m. 3- On 17th June, 2016 the meeting of the Inquiry Committee was held, in which four complainants submitted their written and oral statements before the Committee.
4- On the basis of the statements given by the complainants, the Committee has decided that thorough consideration be done of the examination result, consequently after the meeting of the Committee vide letter dated 21st June 2016 directions were issued to the Secretary, Uttarakhand Subordinate Service Selection Committee to remain present along with certain information.
5- On 29th June 2016, the Secretary, Uttarakhand Subordinate Service Selection Commission Sri M.S. Kanyal remained present before the Inquiry Committee and made available the information required for enquiry. Thereafter, again on 16th August 2016 meeting of the Inquiry Committee was held wherein a decision was taken that the Data made available by the Uttarakhand Subordinate Service Selection Commission be examined statistically for which an Expert in Computer Science, Statistic Expert from Planning Commission and Sri Subhash Chandra Computer Operator in the Office of Additional Chief Secretary are authorized for help and necessary instructions were issued along therewith a decision was taken that the meeting of the Inquiry Committee will be held in the office of the Additional Chief. Secretary/Chairman Inquiry Committee on every Tuesday at 11:30 a.m. 18 6- The next meeting of the of the Enquiry Committee was held at 11.30 A.M. on 20th September 2016 wherein the graph was prepared by including certain points as per the records received by the Committee.
7- In the meeting of Enquiry Committee held on 27th September 2016 the result of all the Districts were plotted in Line Graphs, wherein the percentage of marks obtained by the selected candidates appears totally different from other candidates which was found to be doubtful. Therefore a decision was taken to call for the OMR sheets of the selected candidates and get it enquired in detail from the Lab, at the same time decision was also taken that same number of answer sheets of the other candidates who have secure high marks be called and comparative study be made.
8- The next meeting of the Enquiry Committee was held on 25th October 2016. In the meeting a decision was taken to invite In-charge STF and In-charge FSL as an expert for inspection of the OMR sheet and Attendance sheet received from the Uttarakhand Subordinate Selection Commission.
9- In the meeting held on 03rd December 2016 Dr. M.S. Kanyal, Secretary, Commission; Sri N.S. Dangi, Examination Controller, Uttarakhand Subordinate Service Selection Commission and Sri N.C. Pant, Scientific Officer Forensic Laboratory, Uttarakhand and Sri Bharat Singh STF were present before committee wherein the seal of the box made available by the Uttarakhand Subordinate Service Selection Commission was open and detail study/inspection of the records was done in which shortcomings were found in OMR sheets of 32 candidates only; which have been mentioned by way conclusion in the minutes of meeting. In which irregularities at large scale appears to have been proved. Enquiry Committee took a decision out of total number of sheets received 90 OMR sheets i.e. out of 181 50% sample be taken of the selected candidates and the enquiry be get conducted from Laboratory. It was also decided that that apart from this 90 other sheets of such candidates be also obtained who have not been selected, and these sheets be also send to the Laboratory for enquiry. In continuation thereof it was also decided the 19 Examination Controller would produce before the Addl. Chief Secretary/ Chairman Enquiry Committee on 05th December 2016 the OMR sheets and attendance sheet of same number of the candidates after the selected candidates pertaining to the said examination. It was decided only thereafter after preparing the list it will be sending for enquiry to CFSL Hayderabad. (Annexure-1) 10- The next meeting of the Committee was held on 14th December 2016 wherein in presence of the invited members of Uttarakhand Subordinate Service Selection Commission and Uttarakhand Police, the seal of the sealed box containing the OMR sheets of the candidates immediately below the last selected candidate was opened and was minutely inspected in which the details of the shortcomings/facts have been given. Comparatively no use of whitener has been found in them, mistakes were found less and proportionately they were found clean. For comparing the signature of the candidates on OMR sheets and Attendance sheet it was decided to send them to CFSL Hyderabad. (Annexure-2) 11- The next meeting of the Committee was held on 21st December 2016 on which date Sri Sanjay Solanki, Sub Inspector Civil Police was handed over sealed cover containing OMR sheets and attendance sheets of 180 candidates for taking to CFSL Hyderabad.
12- That next meeting of the Committee was held on 03rd January 2017. In the meeting was decided to get the OMR sheets and Attendance Sheet of 180 candidates inspected by Forensic Laboratory Lucknow for which Sri Sanjay Solanki sub inspector was authorized as in terms of the decision of the Committee dated 21st December 2016 the CFSL Hyderabad has returned the said documents. FSL Lucknow after receiving the entire documents gave the receipt dated 06-01-2017.
13- As per above following are the evidence prima facie confirming the complaints concerning the irregularities committed in the Village Panchayat Development Officer Examination conducted by Uttarakhand Subordinate Service Selection Commission:-
201. On plotting the data on graph by way of point it is clear that the selected candidates should have been in continuity in the front of the other candidates of the merit list but they are totally separate, which in itself is the evidence of mistake. In the 12 districts were the examination was held, all the selected candidates fall in the highlighted portion of the graphs of the said districts. (Enclosure 3/ Total 12 graphs). Almost in all districts the said portion of the graph has bent upward at 90 degree angle, which means that in making selection necessarily mistake have been committed. At the time of committing mistake it appears that it has been taken care of that under no circumstances the candidate who has to be selected should be below any candidate in the merit list. In the legend of the district wise graphs category wise selection "Max" "Min" and "Cut off" has been shown. Max intents the candidate who has secured maximum marks. Min intents the candidate who has secured minimum marks and the purport of the Cut Off is that marks below which no candidate has been included in the merit list. District wise analysis of the graphs is as under:-
i. Almora - As per the Max, Min and Cut off in the legend it is clear that the merit of the General is from 78.75 to 94.75 where as in the S.C. category merit is from 87.5 to 89.25, which means that the candidate belonging to S.C. who has obtained minimum marks has secure more marks that the candidate who has secured minimum marks in the general category, which appears to incoherent. The highlighted portion of the graph has bent straight upward. (Enclosure -3(A)).
ii. Bageshwar- As per above the graph of the district is also bend towards upward which is clearly evident. Probably there was only one post in each category therefore cutoff marks and highest marks are one and the same (Enclosure -3(B)).
iii. Chamoli- In the Graph of this District also the bend at upper side is also clearly evident. (Enclosure- 3 (c)).
21iv. Champawat- The Graph of the District appears to generally ordinary. It appears that mistakes in district Champawat is quite less since the merit of the general category starts from 68.5 and has gone to 93.75, however upward bend in the upper part of the graph is also clearly evident in the this district. (Enclosure- 3 (D)).
v. Dehradun - Merit has gone from 78.75 to 91.75 in the District after combining S.C. with OBC. "Max" of SC has gone above OBC. As per above the bend in the graph is approximately at 90 degree which points towards large number of mistakes. (Enclosure -3 (E)).
vi. Haridwar- the highlighted portion of the Graph 1n the District has completely bent at 90 degree. (Enc1osure -3(F)).
vii. Nainital- In the graph of Nainital also the bend can be seen as above, however the bend in it after starting slowly upward has bend at 90 degree. The merit of S.C. has gone from 66.25 to 92. Selected candidate having minimum marks appears to ordinary. (Enclosure-3(G)).
viii. Pauri- As per above the bend can be seen in the district, but the same starts slowly, which points out towards the fact that the mistakes have taken place but not sufficient. (Enclosure -3 (H)).
ix. Pithoragrh- The highlighted graph of the selected candidates of the District also turns at 90 degree after slowly moving upward. (Enclosure -3(I)).
x. Rudarprayag- The highlighted graph of the candidates selected in the District appears to be standing straight on 90 degrees. (Enclosure- 3(J)) xi. Tehri- The Graph in the district slowly takes approximately 90 degree turn. (Enclosure -3(K)) xii. Uttarakashi- The Graph in the district appears to be slowly turning towards upward. (Enclosure-3 (L)).
2. 45 types of mistakes were found in 31 sheets out of 90 sheets of the selected candidates, the details of which are mentioned in Enclosure No.4.
22Whereas 22 types of mistakes were found in only 16 sheets out 90 sheets of high merit candidates, the details of which are mentioned in Enclosure-
5. The selected candidates have made such a large number of mistakes in writing roll number in words and numbers that if the marks for writing roll number in words and number were to be added for preparing merit list than their merit would have come down.
3. Whitener has also been used in the OMR sheets of the selected candidates for correcting the mistakes, which was completely prohibited. Two OMR sheets have been found to be torn. 03 sheets were found on which numbers were written with pen on the side of the sheet. One such sheet was found in which the photo was not pasted on the attendance form. (Enclosure- 4) 14- Even though above proof is sufficient of the confirmation of the fact that mistakes have been committed in the examination. For confirmation of the evidence (which includes OMR sheets also) of mistakes in the said examination in scientific manner, OMR sheets have been forwarded for scientific investigation to the Forensic Science Laboratory, Lucknow. Final Report will be submitted after receiving the report of the Forensic Science Laboratory, but in respect of the said examination different writ petitions have been filed in the Hon'ble High Court, Naintal Writ Petition No.2286/2016 (S/S) Smt. Pinki Devi versus State, Writ Petition No.359/2017, 360/2017 (S/S) Shubham Choudhary versus State, Writ Petition No. 2313/2016 (S/S) Lokesh Kumar versus State, Writ Petition No. 2232/2016 (S/S) Kamaldeep Panwar versus State, Writ Petition No.2287/2016 (S/S) Sharad Kumar versus State, wherein the Hon'ble High Court on 05.04.2017 passed an order directing the Enquiry committee to submit its enquiry report within 04 weeks, therefore interim report is being submitted.
15- It would be appropriate to suggest here that in such cases for taking decision few guiding principle has been fixed in Ashok Lanka Case 2006 9 SCC 90, Inderpreet Kalwn Case 2006 11 SCC 356, Joginder Pal Case 2014 6 SCC 644, Veerendra Kumar Gautam case 23 2016 7 SCC 82, Hitendra singh Case 2014 8 SCC 369, hence the Personnel Department taking cognizance of the same consider taking decision.
Accordingly Interim Report is being presented.
(Mahesh Cahnd Kaushiwa) (G. S Martolia) (Dr. Ranbir Singh) Addl Secy. Law I.G. Personnel Addl.Chief Secretary Uttarakhand Government Police Headquarter Uttarakhand Government Member Member Chairman"
19. We may also notice the details of the mistakes of the selected candidates (which are made available to us by Mr. Vinay Kumar, Advocate) and the details of the non-selected candidates also. Details of the mistakes of the selected candidates are as under:
"Details of the mistakes of the Selected Candidates (90 sheets)
1. Erasing of the OMR at places by blade by scratching ---- 1
2. Scratching of blocks of roll number -----1
3. Erasing of the answer circle -----2
4. Hole in answer circle due to scratching -----1
5. OMR sheet being torn -----2
6. OMR sheet number not mentioned -----2
7. Writing of number by pen on side of the document/form ----3
8. Use of numbers in roll number and re writing of roll number in words -----11
9. OMR not containing the stamp of examination Controller ----2
10. Use of whitener at some places in answer in OMR -----4
11. Answer circles not filled properly ---4
12. Cutting/not correctly writing/ other mistakes in writing roll number ----8
13. Cuttings in the answer circle ----1
14. Photo not pasted on attendance form ----1
15. Roll number Circle not properly filled ----1
16. Paper Code circle not properly filled ----1 Total : ----45 Note: 45 types of mistakes were found in 31 sheets"24
Details of the mistakes of the non-selected candidates are as under:
"Details of the mistakes of non selected candidates
1. Easement of the answers ----9
2. Cross in the answer circle ----5
3. Hole in the OMR ----2
4. Writing of numbers in the column for writing roll number in words and again writing in words ----2
5. Absence of the stamp of examination controller ----2
6. Signature of Examination Controller in place of signature ---2 Total : ----22 Note: 22 types of mistakes found in 16 sheets."
20. The very first question, we must pose before we consider the matter is whether the appellants have any legal right in the matter and, if they have a legal right, what is the nature and extent of the legal right? The appellants are the candidates who applied pursuant to an advertisement issued by the Commission for selection to public employment. After participation in the written examination, their names have indeed been included in the select list. It is settled law that mere inclusion of a candidate's name in a select list would not give him any right, as such, to be appointed. It is far too well settled for it to require support of any case law; but, at the same time, if a candidate undergoes a selection process and he reaches a point where he is included in the select list under the Constitution since Article 14 frowns upon arbitrary action on the part of the State, the candidate may have a right, if there is no rationale for not making appointment, to come to Court and question the decision. If there is no bona fide reason, it may be 25 that, in an appropriate case, where there is absolutely no basis for not making appointment despite existence of vacancies, the Court may direct appointment. In a situation, as the present, where candidate is in the select list, at best, he may have a right, when entire selection is cancelled, to approach the Court and point out that the decision to cancel the selection is arbitrary. Arbitrariness is tabooed under Article 14 of the Constitution of India. The other facet of Article 14 is non-discrimination of equals as between equals, namely, equals must be treated alike and unequals must be treated differently. When it comes to the question relating to cancellation of select list, since we have before us the latest judgment of the Hon'ble Apex Court in the matter of Gohil Vishvaraj Hanubhai and others Vs. State of Gujarat and others, reported in (2017) 4 Supreme 524, in this regard, namely, as to whether it is a Wednesbury Doctrine, which would apply, or whether Doctrine of Proportionality could be invoked, we deem it appropriate to refer to the said judgment. Therein, the Hon'ble Apex Court was also dealing with the case where on the basis of the complaint, the Committee probed into the matter. It was found for instant 127 candidates belonging to one family were placed in the provisional merit list. The Committee thought it to cancel the entire examination. The Court proceeded to pose the two questions as follows:
"16. Two questions need to be examined:26
(1) What are the principles which govern the jurisdiction of the Courts which exercise the power of judicial review of administrative action in the context of a situation like the one presented by the facts of these appeals;
(2) Whether those legal principles are strictly followed by the respondents while taking the impugned decision?
17. The basic principles governing the judicial review of administrative action are too well settled. Two judgments which are frequently quoted in this regard are-Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, 1948 1 KB 223 and Council of Civil Service Unions v.
Minister for Civil Service, 1984 3 All ER 935 (HL).
20. Normally while exercising the power of judicial review, Courts would only examine the decision making process of the administrative authorities but not the decision itself. The said principle has been repeatedly stated by this Court on number of occasions, Chairman, All India Railway Recruitment Board Vs. K. Shyam Kumar (2010) 6 SCC 614: [2010] 4 Supreme 737 at para 21; Sterling Computers Ltd. v. M.N. Publications Ltd., (1993) 1 SCC 445; State of A.P. v. P.V. Hanumantha Rao, (2003) 10 SCC 121: [2003] 7 Supreme 456."
22. Purity of the examination process- whether such examination process pertains to assessment of the academic accomplishment or suitability of candidates for employment under the State-is an unquestionable requirement of the rationality of any examination process. Rationality is an indispensable 27 aspect of public administration under our Constitution. Ramana Dayaram Shetty v. International Airport Authority of India & Others, (1979) 3 SCC 489. The authority of the State to take appropriate measures to maintain the purity of any examination process is unquestionable. It is too well settled a principle of law in light of the various earlier decisions of this Court that where there are allegations of the occurrence of large scale malpractices in the course of the conduct of any examination process, the State or its instrumentalities are entitled to cancel the examination, Nidhi Kaim v. State of Madhya Pradesh & Others, (2016) 7 SCC 615 at para 23: "Even otherwise, the argument of the appellants is required to be rejected for the following reasons: Under the scheme of our Constitution, the executive power of the State is co-extensive with its legislative power. In the absence of any operative legislation, the executive power could certainly be exercised to protect the public interest. The right of each one of the appellants herein for admission to the medical colleges in the State of Madhya Pradesh is itself an emanation of the State's executive action. No doubt, even executive action of the State can create rights. Unless there is something either in the Constitution or law which prohibits the abrogation or abridgment of rights, it is permissible for the State to do so by executive action in accordance with some specified procedure of law. No doubt, that the overarching requirement of Constitution is that every action of the state must be informed with reason and must be in public interest. Nothing has been brought to our notice which prohibits the impugned executive action. If it is established that the 28 adoption of unfair means on large scale resulted in the contamination of the entrance examination (PMT) process of successive years, the State undoubtedly would have the power to take appropriate action to protect the public interest. I, therefore, reject the submission of the appellants."
In the case of Union of India v. Anand Kumar Pandey, 1994 5 SCC 663 large scale cheating occurred in the Railway Recruitment Board Examination, specifically in two rooms of a center. The Board took a decision to subject the successful candidates from that center to a re-examination. This was set aside by the Central Administrative Tribunal on the ground that such a decision was taken in violation of the principles of natural justice. It was held that there cannot be any straight- jacket formula for the application of the principles of natural justice. This Court did not find any fault with the decision to conduct a fresh examination.;
In the case of Chairman All India Railway Recruitment Board & Another v. K. Shyam Kumar & Others, 2010 6 SCC 614, large-scale malpractices surfaced in the written test. The recruitment board ordered a retest, which was challenged in the Central Administrative Tribunal. The tribunal held that a retest was valid. High Court reversed invoking the wednesbury's principles of reasonableness. This Court held that in the face of such large scale allegation supported by reports of the vigilance department and the CBI, the High Court was wrong in reversing the tribunal's decision. This Court has on numerous occasions approved the action of the State or its 29 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. They are also not obliged to seek proof of each and every fact which vitiated the examination process.
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."
21. We may notice also the following discussion as to the distinction between administrative actions which affect fundamental freedom and also when it is challenged as being violative of Article 14 of the Constitution of India in the context of Doctrine of Proportionality:-
"26. The doctrine of proportionality, its origin and its application both in the context of legislative and administrative 30 action was considered in some detail by this Court in Om Kumar & Others v. Union of India, (2001) 2 SCC 386.
This Court drew a distinction between administrative action which affects fundamental freedoms, see paras 52 to 54 under Articles 19(1) and 21 and administrative action which is violative of Article 14 of the Constitution of India. This Court held that in the context of the violation of fundamental freedoms;
"54. .... the proportionality of administrative action affecting the freedoms under Article 19(1)or Article 21 has been tested by the courts as a primary reviewing authority and not on the basis of Wednesbury principles. It may be that the courts did not call this proportionality but it really was.
This Court, thereafter took note of the fact that the Supreme Court of Israel recognised proportionality as a separate ground in administrative law to be different from unreasonableness.
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 31 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 32 consideration or whether his view is one which no 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."
28. The submission by the appellants is that the mere fact that some of the candidates resorted to some malpractice cannot lead to the conclusion that the entire examination process is required to be cancelled as it would cause undue hardship to huge number of innocent candidates. In 33 other words, the appellants urge this Court to apply the primary review test.
29. We have already held that there were large scale malpractices at the examination process and the State was entitled to take appropriate remedial action. In the context of the occurrence of such malpractice obviously there can be two classes of candidates: those who had resorted to malpractice and others who did not. By the impugned action, no doubt, all of them were treated alike. Whether such herding together would amount to the denial of the equal protection guaranteed under Article 14? is the question.
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.
On the other hand, by virtue of the impugned action, the innocent candidates (for that matter all the candidates including the wrong doers) still get an opportunity of participating in the fresh examination process to be conducted by the State. The only legal disadvantage if at all is that some of them might have crossed the upper age limit for appearing in the fresh recruitment process. That aspect of the matter is taken care of by the State. Therefore, it cannot be said that the 34 impugned action is vitiated by lack of nexus with the object sought to be achieved by the State, by herding all the candidates at the examination together."
22. We may notice the decision of the Hon'ble Apex Court in the matter of Union of India and others Vs. Rajesh P.U., Puthuvalnikathu and another, reported in (2003) 7 SCC 285. That was a case, where the C.B.I. issued advertisement for filling up of 134 posts of Constables Male/Female (Executive) and 5 male Constables (Motor Transport) in various branches. While the candidates, including the respondent, were awaiting their appointment, the selection process was cancelled. That was questioned in O.A. before the Central Administrative Tribunal. Finally, the matter reached the Hon'ble Apex Court. The Hon'ble Apex Court held as follows:
"6. On a careful consideration of the contentions on either side in the light of the materials brought on record, including the relevant portions of the Report said to have been submitted by the Special Committee constituted for the purpose of inquiring into the irregularities, if any, in the selection of candidates, filed on our directions - which Report itself seems to have been also produced for the perusal of the High Court, there appears to be no scope for any legitimate grievance against the decision rendered by the High Court. There seems to be no serious grievance of any malpractices as such in the process of written examination - either by the candidates 35 or by those who actually conducted them. If the Board itself decided to dictate the questions in loud speaker in English and Hindi and none of the participants had any grievance in understanding them or answering them, there is no justification to surmise at a later stage that the time lapse in dictating them in different languages left any room or scope for the candidates to discuss among them the possible answers. The posting of Invigilators for every ten candidates would belie any such assumptions. Even that apart, the Special Committee constituted does not appear to have condemned that part of the selection process relating to conduct of written examination itself, except noticing only certain infirmities only in the matter of valuation of answer sheets with reference to correct answers and allotment of marks to answers of some of the questions. In addition thereto, it appears the Special Committee has extensively scrutinized and reviewed situation by reevaluating the answer sheets of all the 134 successful as well as the 184 unsuccessful candidates and ultimately found that except 31 candidates found to have been declared successful though they were not really entitled to be so declared successful and selected for appointment. There was no infirmity whatsoever in the selection of the other successful candidates than the 31 identified by the Special Committee. 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 36 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."
23. We may, at this juncture, itself notice the nature of the allegations, which have been adverted to therein. Besides, we further notice that the Special Committee had extensively scrutinized and reviewed the situation by re-evaluating the answer-sheets of all the 134 successful candidates as well as 184 unsuccessful candidates and, ultimately, found that except 31 candidates found to have been declared 37 successful though they were not really entitled to be so declared successful. Thus, apparently, there appears to have been only 311 candidates in all. We may notice that, as far as this selection is concerned, there are as many as 87000 candidates who applied for 196 posts in question.
24. Next, we may notice the judgment of the Hon'ble Apex Court in the matter of Inderpreet Singh Kahlon and others Vs. State of Punjab and others, reported in (2006) 11 SCC 356. The said case arose out of a selection made by the Public Service Commission. Not only was the selection made; but, also appointments were effected. It involves a case, where bribes were alleged to have been taken by the Chairman of the Public Service Commission and the Court therein, while remitting the matter back to the High Court, requested the High Court to constitute two independent Scrutiny Committees, one relating to the Executive Officers and the other relating to the Judicial Officers. Since this judgment has been considered in a later judgment, which we will refer to, we need not advert to this judgment any further. This judgment came to be considered and referred to by the Hon'ble Apex Court in the matter of Joginder Pal and others Vs. State of Punjab and others, reported in (2014) 6 SCC
644. Therein, the Court has adverted to the nature of the allegations made against the Chairman of the Public Service Commission, the appointments, which were made, and also the judgment of the Hon'ble Apex Court in the matter of Inderpreet Singh Kahlon and 38 others Vs. State of Punjab and others, reported in (2006) 11 SCC 356 and held as follows:
"10. From the reading of the judgment, one can discern the following principles:
10.1. An appointment made in violation of Articles 14 and 16 of the Constitution of India would be void. It would be a nullity. Since the services of the appellants were terminated not in terms of the rules but in view of the commission of illegality in the selection process involved, the applicability of the relevant provisions of the statutes as also the effect of the provisions of Article 311 of the Constitution need not be considered.
10.2. Before a finding that an appointment has been made in violation of Articles 14 and 16 of the Constitution can be arrived at, the appointing authority must take into consideration the foundational facts.
Only when such foundational facts are established, can the legal principles be applied. When the services of employees are terminated inter alia on the ground that they might have aided and abetted corruption and, thus, either for the sake of probity in governance or in public interest their services should be terminated, the court must satisfy itself that conditions therefor exist. The court while setting aside a selection may require the State to establish that the process was so tainted that the entire selection process is liable to be cancelled. In a case of this nature, thus, the question which requires serious consideration is as to 39 whether due to the misdeed of some candidates, honest and meritorious candidates should also suffer.
10.4. Cases which may arise where the selection process is perceived to be tainted may be categorised in the following manner:
(i) Cases where the "event" has been investigated.
(ii) Cases where CBI inquiry took place and was completed or a preliminary investigation was concluded.
(iii) Cases where the selection was made but appointment was not made.
(iv) Cases where the candidates were also ineligible and the appointments were found to be contrary to law or rules.
If the services of appointees who had put in a few years of service were terminated, compliance with three principles at the hands of the State was imperative viz.: (1) to establish satisfaction in regard to the sufficiency of the materials collected so as to enable the State to arrive at its satisfaction that the selection process was tainted; (2) to determine the question that the illegalities committed went to the root of the matter, which vitiated the entire selection process.
Such satisfaction as also the sufficiency of materials were required to be gathered by reason of a thorough investigation in a fair and transparent manner; (3) whether the sufficient material present enabled the State to arrive at a satisfaction that the officers in majority had been found to be part of the fraudulent purpose or the system itself was corrupt.
4011. Applying these principles to the facts of the case, the Court in Inderpreet Singh Kahlon case found that no candidate for the year 2001 had been appointed and, therefore, persons who were selected in that year were on a different footing as merely a person comes in the selected list, he has no right to be appointed on that ground. However, held the Court, those who had already been appointed and had completed about three years of service, some of them had even passed departmental test and some were given higher responsibilities and had even completed the period of probation or nearing the completion thereof and were working to the satisfaction of the authorities concerned, different yardsticks were to be applied while terminating their services. As a matter of fact, the Court found that apart from inferences drawn on certain facts and in particular the circumstances enumerated by the High Court, it was difficult to accept the contention of the State Government that it was absolutely impossible for it to separate the innocent candidates from the tainted ones. In the opinion of the Court, by appointing an independent scrutiny committee it was still possible to sift the evidence and separate tainted candidates from the innocent ones. The Court also recorded that relevant records were still available and had not been destroyed, which included question papers, answer sheets and other documents. Since these records were still available, a fair investigation into the whole affair was still possible. Such an exercise was, therefore, needed when it had not been found that all the appointments were made on extraneous considerations, including monetary consideration. It 41 was, thus, held that the High Court was not right in applying the principle of "mass cheating cases" in the instant case.
12.1. If services of appointees who had put in a few years of service are to be terminated, compliance with following principles by State is imperative:
(1) sufficient materials are to be collected, to be gathered by thorough investigation in fair and transparent manner;
(2) illegalities committed must go to the root of the matter, vitiating entire selection process; and (3) the appointees/officers in majority must be found to be part of the fraudulent purpose or the system itself must be found to be corrupt."
25. Thereafter, the Court proceeded to hold that the principles were not adhered to in the matter. In short, the principle of law, which has been declared, is that there must be a separation between the tainted and the non-tainted and effort should be made, in other words, to draw a line between persons who have committed wrong and to distinguish them from those who are innocent.
26. Learned Counsel for the appellants also referred to the decision of the Hon'ble Apex Court in the matter of Chairman, All India Railway Recruitment Board and another Vs. K. Shyam Kumar and others, reported in (2010) 6 SCC 614. That was a case, where 42 the Railway Board directed the Railway Recruitment Board to conduct retest in respect of group "D" posts. Large-scale irregularities and malpractices were noticed. The Vigilance Department, which conducted the preliminary enquiry, prima facie, revealed leakage of question papers, mass copying, and impersonation of the candidates in the written test. The Vigilance Department also recommended the case to be referred to the C.B.I. The High Court, applying the Wednesbury Principle, found the decision of the Board to be illegal & arbitrary and directed the Board to finalize the selection. It is here that the Hon'ble Apex Court set- aside the judgment of the High Court and, in the course of judgment, inter alia, we may notice held as follows:
"41. We have already indicated the three alternatives available to the decision- maker (Board) when serious infirmities were pointed out in the conduct of the first written test. Let us examine which was the best alternative, the Board could have accepted applying the test of Wednesbury unreasonableness. Was the decision taken by the Board to conduct a re-test for those candidates who had obtained minimum qualifying marks in the first written test so unreasonable that no reasonable authority could ever have decided so and whether the Board before reaching that conclusion had taken into account the matters which they ought not to have taken into account or had refused to take into account the matters that they ought to have taken into account and the decision taken by it was so 43 unreasonable that no reasonable authority could ever have come to it? Judging the decision taken by the Board applying the standard laid down in the Wednesbury principle unreasonableness, the first alternative that is the decision to cancel the entire written test and to conduct a fresh written test would have been time consuming and expensive. Initially 10,02,909 applications were received when advertisement was issued by the Board out of which 5,86,955 were found to be eligible and call letters were sent to them for appearing in the written test held at various centres. 3,22,223 candidates appeared for the written test, out of which 2690 were selected. Further the candidates who had approached the Court had also not opted that course instead many of them wanted to conduct a re-test for 2690 candidates, the second alternative. The third alternative was to go ahead with the first written test confining the investigation to 62 candidates against whom there were serious allegations of impersonation. The Board felt in the wake of the vigilance report and the reports of the CBI, it would not be the best option for the Railway Administration to accept the third alternative since there were serious allegations of malpractices against the test. From a reasonable man's point of view it was felt that the second option i.e. to conduct a re-test for those candidates who had obtained minimum qualifying marks in the first written test was the best alternative.
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 44 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."
27. The Court also applied the Doctrine of Proportionality to the three alternatives suggested and found that the decision taken by the Board was one which struck a correct balance and found, applying the Wednesbury test as well as the Proportionality test, that the decision taken by the Board was fair, reasonable and balanced.
28. No doubt, this judgment is cited before us by the appellants, apparently, to point out that the said case involved grave malpractices, which included impersonation and other malpractices, which are not present in this case and, therefore, this is a case where the Court should interfere, as without there being any such vitiating factors, a drastic, unwarranted and unjustifiable decision was taken to cancel the entire selection.
29. Mr. Rakesh Thapliyal, learned counsel for the appellants, in fact, sought to draw support from the judgment of the Hon'ble Apex Court in the matter 45 of Secretary, Tamil Nadu Public Service Commission Vs. A.B. Natarajan and others, reported in (2014) 14 SCC 95. That is a case, where selection conducted by the Tamil Nadu Public Service Commission came under a cloud and the Court, in the writ petition challenging the selection, appointed the Court Commissioner to look into the alleged irregularities and another report was also available to the Court by an Advocate, and, ultimately, the writ petition was dismissed. The Appeals were allowed by the Division Bench. We may note paragraph nos. 7, 11, 12 & 16 of the aforesaid judgment, which read as follows:
"7. Upon perusal of the judgment it is clear that most of the candidates had not adhered to the instructions given to them, which were to be followed while answering the questions. The candidates had made several unwarranted indications or markings in their answer books, which ought not to have been made by them. Though use of coloured pens had been prohibited, several candidates had used colours other than blue, blue-black and black, which were the only permissible colours. Use of pencil was not permitted and yet pencil markings were made by several candidates. Several candidates had given different indications by putting certain religious symbols. Moreover, certain pages of answer books were deliberately kept blank though they were supposed to write on each page. All these indications given by the candidates, which were not called for, were considered very seriously by the Division Bench of the High Court and 46 after referring to all these irregularities, the Division Bench had allowed the appeals.
11. It is an admitted fact that serious irregularities had been committed by the candidates in their answer books. If one looks at the instructions, which had been given to the candidates for writing the answer books, it is clear that they had been informed in unequivocal terms that they had to use only blue, blue-black or black ink and they were supposed to use only fountain pen, steel pen or ballpoint pen. In spite of the said instructions, several candidates had used sketch pens, pencils and pens or pencils with different colours. Use of different colours or pencil could have given some indication to the examiner about the identity of the candidate. These facts clearly show that either the candidates were absolutely careless or they wanted to give some indication with regard to themselves to the examiner. If a candidate writes his answer book giving some indication with regard to himself with the help of a different ink or pencil
- other than the prescribed writing instrument and the colour of ink, one can definitely presume that the candidate did not act in a bona fide manner.
12. There was a specific direction that the candidates had to start writing the answer books from the first page and no page should be left blank. In spite of the said clear instruction, several candidates kept several pages blank and what is most astonishing is that some of the candidates, after keeping the entire page blank i.e. without answering the question had written some irrelevant words or names. As for 47 example, in one case on the entire page "MANI" was written. This is nothing but some indication to the examiner, which is definitely not permitted. Many of the candidates had given some indication with regard to some religion by writing the words or signs connected with a particular religion. A candidate is not supposed to give his identity or any indication with regard to himself in the answer books. If he does so, he is violating the instructions given to him which would amount to nothing but misconduct.
16. In the instant case, it is an admitted fact that there were serious violations of the instructions given to the candidates while answering the questions. Although all these details were placed before the learned Single Judge, the learned Single Judge did not give importance to these irregularities and dismissed the petitions, but when the appeals were filed, in our opinion, the Division Bench of the High Court rightly understood the importance of such irregularities and allowed the appeals by setting aside the selection of the candidates who had committed such irregularities while writing their answer books. We are of the view that if such a strict view is not taken by a constitutional body which has been entrusted with the work of selecting best candidates, the entire purpose behind having the Commission or any other such body for examining merit of candidates would be frustrated. We are, therefore, of the view that the appellate Court was absolutely justified in allowing the appeals and by holding that all those candidates who had committed material irregularities could not be declared selected."48
And, therefore, the Court took note of the same and the Appeals were dismissed.
30. Mr. Rakesh Thapliyal, learned counsel for the appellants also relied on the judgment of the Allahabad High Court in Special Appeal No. 437 of 2015 and connected cases. Therein, the learned Single Judge allowed a batch of writ petitions and set- aside the final result by directing to exclude the candidates using whiteners or blades on their O.M.R. sheets. The said judgment came to be upheld. The Bench also referred to the judgment of the Hon'ble Apex Court in the matter of Secretary, Tamil Nadu Public Service Commission Vs. A.B. Natarajan, reported in (2014) 14 SCC 95, which we have already adverted to.
31. The attempt by Mr. Rakesh Thapliyal, learned counsel appearing for the appellants is to persuade us to hold that this Court may adopt the course, which was adopted by the Bench of the Allahabad High Court, and separate those who had done wrong from those who have committed no wrong and to interfere in the matter canceling the entire selection.
32. There can be not even the slightest shadow of doubt about the principle that public employment constitutes the new form of wealth under the Indian Constitution. Traditional forms of wealth have paved way in the light of the tremendous expansion of the 49 activities of the State and the State has become a Welfare State, dispensing a host of benefits and indulging in various activities, all of which require employees. Articles 14 & 16 of the Constitution of India contemplate selection to Public Office in the most transparent, honest and fair manner. This is for the reason that, at the heart of the Constitution, lies two basic principles, namely, the Right to be Treated Equally and, secondly, that every action of the State must be informed by fairness on the part of the State and its Officers. Upholding the purity of the selection process, therefore, must be treated as a high constitutional value to inform the actions of all concerned.
33. At the same time, since the State has to act free from arbitrariness, when a selection is held, it has not only to take the greatest care to ensure that selection proceeds in a transparent manner, any decision to cancel the selection en-masse should be attended with due care and contemplation.
34. The aforesaid principles cannot be in the region of doubt.
35. We may straightway distinguish between cases where the Court takes a decision on the complaint of a party to interfere with the selection and the decision taken by the Authority itself to cancel the selection. When the Authority takes a decision to cancel the selection and the matter is brought to the 50 Court, the case would have to be decided on the basis of the manner, in which the decision is taken. If the appellants challenge the decision, which undoubtedly is an executive decision, as being arbitrary, then, necessarily, the appropriate principle to apply would be the Wednesbury Doctrine. After the evolution of the Wednesbury Doctrine, which has been applied in India as well, the principle today, which can be said to be established in this area, can be treated as three in number broadly. An executive decision will be bad in law, if it is irrational. It will become equally vulnerable in judicial scrutiny, if it is found to be afflicted with any impropriety in the decision making process.
36. Lastly, undoubtedly, if the appellants establish illegality, it would become susceptible to judicial interference. See in this regard, the decision of the Hon'ble Apex Court in the matter of Tata Cellular Vs. Union of India, reported in (1994) 6 SCC 651. There have been other recent recruits to interference in executive action such as the Doctrine of Legitimate Expectation and the latest recruit is the Doctrine of Proportionality. As far as the interplay between Wednesbury Doctrine and the Doctrine of Proportionality is concerned, we have already noticed the distinction as laid down in the latest judgment of Hon'ble Apex Court in the matter of Gohil Vishvaraj Hanubhai and others Vs. State of Gujarat and others, reported in (2017) 4 Supreme 524. We may merely summarize them as follows:
51If an action is challenged on the score that it violates fundamental freedoms (the rights, which are guaranteed under Article 19 of the Constitution of India), it is open to the party to plead and allege that the impugned action violates the Doctrine of Proportionality. The Doctrine of Proportionality, in a nutshell, can be described as the power of the Court to sit in primary review over the action of the Authority, as if it were taking the decision sitting in the Chair of the Authority. As far as Wednesbury Review is concerned, it is secondary review. Meaning thereby, only that the choice of the decision is left to the Authority. The role of the Court is limited to examining, whether the decision taken by the Authority is afflicted with illegality, irrationality or procedural impropriety. When it comes to a case based on violation of Article 14, it falls into two parts. If the case, which is set up, is that it is violative of Article 14 for the reason that it is arbitrary, then the Wednesbury principle alone will assist the writ applicant; whereas, it may so transpire that, in a case, the petitioner may plead violation of Article 14 insofar as it forbids discrimination. If the petitioner pleads & establishes that the executive action complained of is discriminatory and, therefore, it is violative of Article 14, then, the Court could be persuaded to interfere on the basis of the Doctrine of Proportionality, which, in short, means only that the Court will decide the matter by looking into the decision to find out, whether the proper balance has been struck by the administrator in choosing from the number of actions which it can take 52 in a particular situation to secure a constitutionally legitimate end and whether it has exceeded the Constitutional limits in the sense that, while dealing with a problem by choosing one of the many choices available to him, it has led to an excess of interference with the constitutional rights of the parties.
37. Applying the aforesaid principles to the facts of this case, we must first decide, whether any occasion arises for us to apply the Doctrine of Proportionality. The case based on Doctrine of Proportionality was argued by Mr. Vinay Kumar, learned counsel appearing for the appellants; but, when questioned in the writ petition whether foundation was laid in the pleadings for raising the Doctrine of Proportionality, the answer given by Mr. Vinay Kumar, Advocate is that there is no such case. The deficiency in the writ petition was sought to be made up by the allegation made in the Memorandum of Appeal. We have no hesitation in rejecting the said attempt. The case, such as this, must necessarily find its place in the writ petition with an opportunity to the opposite party to controvert it. We will, however, deal with the matter when we consider the Doctrine of Wednesbury in its application to the facts.
38. This is a case where the Commission invited applications for filling up 196 posts of Village Development Officers. It appears that the Commission itself was set up only in the year 2014 for the purpose of recruiting persons to the group "C" posts. More than 53 87000 applications were received by the Commission. The method of selection involves the holding of a written examination. The written examination was held. The maximum marks were 100 marks. Apparently, the questions were objective type. The O.M.R. sheets were the mechanism for assessing the merit. The Commission proceeded to prepare a select list, as we noticed, and published it on 30.03.2016. Awaiting verification in between 16.05.2016 and 19.05.2016, while the candidates were waiting for verification, it is that complaints began to surface. We have already adverted to the Report of the Principal Secretary. We noticed that the Principle Secretary was confronted with four complaints, which we have referred to. The method employed by the Principle Secretary was, essentially, to call for a response from the Controller of the examination. The Principal Secretary concluded, apparently, prima facie, that there is no wrong doing.
39. There is a submission of Mr. Vinay Kumar, learned counsel for the appellants that without there being any complaint thereafter, the decision of the Principal Secretary was put into play by the Joint Secretary writing the letter on 21.04.2017 that the Commission may proceed with the matter; but, the case of the respondent is that the Government was not satisfied with the report.
40. The importance of this argument is to be gauged when we deal with the Interim Report of the 54 three-member Committee, which we will do presently. The fact of the matter is that the three-member Committee was appointed on 20.05.2017. It is noteworthy that, including the present appellants, several persons approached this Court and the writ petitions came to be disposed of directing that a decision be taken by the Committee. It is, thereafter, that the Committee has given its report.
41. A perusal of the report would reveal that the Committee, which itself consists of the Additional Chief Secretary, the Inspector General of Police (Personnel) and the Additional Secretary (Law), thought it fit to take the services of the technical experts. We noticed that the technical experts include the expert in Computer Science and Statistic Expert from the Planning Commission. Mr. Subhash Chandra, Computer Operator in the Office of the Additional Chief Secretary was authorized to deal with the matter. The Committee did not conclude its meeting in a single day. It was spread over for a few days. It has looked into the O.M.R. sheets. It is, essentially, noticed that it has prepared graphs. In fact, a total of 12 graphs have been prepared. It has referred to the matter district- wise. It has also referred to the presence of 90 degree angle/approximating to 90 degree. What we could make out, as we found no assistance forthcoming from the learned counsel for the appellants to demystify this, was that the result of the examination showed a deep cleavage between the candidates who were 55 selected and the candidates who followed them in the order of merit.
42. In fact, Mr. Rakesh Thapliyal, learned counsel for the appellants does not dispute that 42 persons, out of the selected candidates, secured more than 90% marks. We are told that the criterion for marking in this case involved negative marking also. The Committee also has referred to the various mistakes as they are described, which we have adverted to. It is brought to our notice by Mr. A.S. Rawat, learned Senior Counsel appearing on behalf of the Commission that they have selected at random 50% of both the selected candidates and the candidates who were not selected. We cannot ignore the fact that the Committee had services of a Statistician besides the Computer Expert. Therefore this, in a manner of speaking, can be described as a Report of an Expert body.
43. It is based on this report that the Government took the decision to cancel the entire selection. It may be true that, in the decision taken by the Government, no detailed reasons are given; but, at the same time, we cannot ignore the fact that the Government did have the Interim Report of the three- member Committee before it.
44. It is here, we must remind ourselves of the contours of the Courts jurisdiction. We must confine ourselves to the boundaries of jurisdiction when the 56 Court does the Wednesbury review. We would feel that otherwise we will be doing oversight as an appellate body. It may not be possible in a situation like this to evaluate or re-evaluate each of the 87000 O.M.R. sheets unlike the situation which was apparently done in the case of Union of India and others Vs. Rajesh P.U. Puthuvalnikathu and another reported in (2003) 7 SCC
285. Apparently, what was done is random sampling.
45. There is a case for the appellants that what are described as mistakes should not have led the authorities to infer that there was tampering, wrong doing, leaking of papers or mass copying or any other malpractice as would have entitled them to cancel the selection. The response of Mr. A.S. Rawat, learned Senior Counsel is that malpractice is not limited only to the cases of mass cheating, impersonation or copying. The supreme consideration in these matters is the value that examination for appointment to Public Office must be held in the most transparent manner, coupled with the fact that the nature of the right, which is available to a selectee, may be considerably limited. If the selection process progresses to the stage of appointment and, if after few years down the line after the appointment takes place, the selection process is sought to be revisited, certainly more exacting standards would be expected from the decision makers, if it were to cancel the selection and the appointments, which were made thereby. Such is not the situation in this case.
5746. In this case, on the basis of the report of the Committee, the Government has decided to go in for a fresh examination. The learned Single Judge has, by the impugned judgment, confined the persons, who could take part in the examination to those who have already applied. To the extent possible, the learned Single Judge has taken a decision and moulded the relief.
47. It is noteworthy to remind ourselves that there is absolutely no allegation of malafides against the decision maker, namely, the Government. There is also no plea of malice; either in fact or in law alleged against any Member out of three Members, who constituted the Committee. Therefore, there is a presumption that high ranking officers of the Government would act in accordance with law, a presumption, which fortifies us in taking the view that neither the findings of the Committee nor the decision taken by the Government in consequence thereof would be afflicted in law.
48. It may be true that when a decision of this magnitude is taken, there may be persons who may not have done any wrong. It may be also true that the appellants are innocent as they claimed to be. But the question would be, whether the greater public good is to be sacrificed or whether it is the doctrine that private interest must be subordinate to public good, which should prevail. We have already noticed the huge scale of the selection process involving more than 87000 applications. The Committee has bonafide 58 made an attempt to find out that whether there are irregularities. It has found that there are irregularities. It has found out irregularities at any rate with respect to 31 candidates out of 90. It is, therefore, that the Government took the view that it is a fit case for cancellation of the selection.
49. The argument of the appellants that remains was that their cases should be separately dealt with and, therefore, they could escape the wrath of the decision to cancel the selection as a whole. As we have noticed earlier, an executive decision was taken bonafide. It is being taken considering the nature of the irregularities found. We must also notice the nature of the right if at all with the appellants. We have also noticed the scope of judicial review in such matters.
50. There are two things, we must deal with. One is that there is no complaint after the communication dated 21.04.2017 by the Joint Secretary acting on the report of the Principal Secretary dated 19.04.2017, which could have justified the constitution of the Committee. We would think that, objectively viewed, the report of the three-member Committee and the matters which it has been able to unearth is sufficient to answer the case that the Committee went into the matter without any complaint. The material, which has come to light, as a result of the report of the Committee would, at any rate, be sufficient for the Government to justify the 59 decision which it has taken and we need not go into the circumstances in which the Committee was constituted. The Committee went ahead and made the report.
51. As far as the case of Mr. Vinay Kumar learned counsel for the appellants that this is a case where the Court may note that the Commission in its report dated 29.06.2016 has supported its own selection is concerned, we find no merit in the same. The question is not the stand taken by the Commission. The question is the finding of the three- member Committee, which had also the support of experts in the form of Statistician and Computer expert. The relevant thing is whether this is a case where Government acted without any material or whether it acted with material. Further, the next question is whether the Government acted with material, which was relevant, or whether it acted with material, which was irrelevant. We would think that we cannot hold that there was no material before the Government when it took the decision. It had the Report of the Expert Committee. We cannot say that the Government acted with material which was not relevant. The material, which was available with the Committee, which is referred to in the Report, cannot be treated as irrelevant. Therefore, we would think that no case is made out.
52. Mr. Rakesh Thapliyal, learned counsel for the appellants would submit that the Court may notice 60 that the O.M.R. sheets were scanned by the scanner, therefore, the mistakes would have been done away and, therefore, the findings cannot be sustained. We are afraid, this argument cannot stand in the light of the fact that this is making an intrusion into the choice made by the decision maker and converting this Court into an Appellate Forum and overstepping our jurisdiction in judicial review. That apart, we noticed that in the Report various aspects which are described as mistakes have came out. Therefore, we see no reason at all.
53. There is a case for the appellants that the Former Chairman of the Commission and the Controller have left; they were compelled to leave; but, the two persons against whom Controller of Examination made allegations continue and it also raises a doubt as to what is the guarantee that if the selection is held again, the same alleged mistakes would not occur.
54. We would think that such a line of argument does not require any consideration, as while institutions manned by human beings are not infallible, the Court cannot veto executive action, which is intended to rectify an error or illegality, on the basis that the error is likely to be repeated. As far as the question relating to the allegations made against two persons is concerned, we would only observe that, certainly, the Court expects that the examination, which will be held, will be free from any kind of wrong 61 doing and it will be the duty of the Commission and also the Government to ensure that the selection will be blameless.
55. Subject to the said observation, the Appeals will stand dismissed.
56. There will be no order as to costs.
(V.K. Bist, J.) (K.M. Joseph, C.J.) 01.12.2017 Arpan