Gujarat High Court
Pal Vikram Rameshbhai vs Chairman - Recruitment Board on 18 July, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/1895/2017 ORDER DATED: 18/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1895 of 2017
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PAL VIKRAM RAMESHBHAI & 2 other(s)
Versus
CHAIRMAN - RECRUITMENT BOARD & 2 other(s)
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Appearance:
DELETED for the Petitioner(s) No. 1
MR DG CHAUHAN(218) for the Petitioner(s) No. 2,3
RONAK D CHAUHAN(7709) for the Petitioner(s) No. 2,3
MR NIKUNT K RAVAL(5558) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 18/07/2022
ORAL ORDER
1. This petition under Article 226 of the Constitution of India is filed for quashing and setting aside the notice dated 02-01-2017 issued by the respondent No.2- Commandant, Directorate General Border Security Force, Recruitment Section in so far as it concerned the post of Constable (Tradesmen) Male, BSF belonging to the State of Gujarat and also further prayed for issuing appointment orders to the petitioners for the post of Constable (Tradesmen) Male, BSF-2016.
2. At the outset, it is reported that out of three petitioners, two petitioners are not inclined to proceed further and therefore, now the petition would be maintained only for one petitioner i.e. petitioner No.2- Ronakkumar Kishorkumar Kalawant. Petition stands disposed of qua petitioner no.1-Pal Vikram Rameshbhai and petitioner no.3 -Ahir Sunil Kumar Indraj Singh.
3. During the pendency of this petition, by order dated 06-09-2017, the matter was admitted and thereafter, on 11-09-2017, another Advertisement was issued inviting application for 1074 posts of Page 1 of 12 Downloaded on : Wed Jul 20 20:59:02 IST 2022 C/SCA/1895/2017 ORDER DATED: 18/07/2022 Constable (Tradesmen) Male in BSF for the year 2017-2018. This advertisement included the post of 561 posts. The petition was therefore amended and the prayer was made for staying the process of selection pursuant to the Advertisement dated 11-09-2017, the Court finds that pursuant to such amendment, no orders have been passed presumable the recruitment has thereafter proceeded ahead and brought to logical conclusion. Present petition, however, is in connection with the selection procedure, which commenced under the Advertisement Notice of May, 2016, which is titled as Recruitment for the post of Constable (Tradesmen) Male in BSF for the year 2016-2017 for 561 vacancies.
4. The recruitment proceedings had proceeded ahead to the extent of short listing the candidates for medical and ultimately, uploading the result of the candidates for the State of Gujarat and Maharashtra on the website, wherein name of the petitioners appeared in the list of candidates, who have qualified in the written examination. It is at that stage that impugned notice dated 2 nd January, 2017 was issued, which observed that due to some malpractice/ irregularities observed in the recruitment process, complete recruitment process of the subject post was terminated with immediate effect.
5. On behalf of the petitioner, learned Advocate submitted that the petitioner was the candidate qualified in the due process of selection and therefore, was entitled to further process and ultimate appointment to the said post, as there is nothing objectionable against the petitioner and that allegations of malpractice/ irregularities was neither attributed to the petitioner nor was in regards of any of the Centre, which had undertaken the selection procedure, where the candidates of Gujarat had appeared. It is submitted that malpractice/ irregularities were observed in particular Centres only and therefore, the candidates who have not been part of those Centres, should not be adversely affected. It is submitted that at the most, the respondents ought to have undertaken Page 2 of 12 Downloaded on : Wed Jul 20 20:59:02 IST 2022 C/SCA/1895/2017 ORDER DATED: 18/07/2022 process for segregating those Centres and those candidates who were involved in such malpractice rather than punishing one and all for no fault on their side.
6. Learned Advocate for the petitioner has primarily relied upon the decision of the Apex Court in case of Inderpreet Singh Kahlon and others v/s. State of Punjab and others reported in (2006) 11 SCC 356 precisely to emphasis on his argument that the Administration ought to have undertaken the procedure for segregating tainted candidates from non-tainted candidates and ought to have protected the interest of honest candidates, where it is a case of mass cheating. He has also relied upon the decision in case of High Court of Panjab and Haryana v/s. State of Punjab and others reported in (2010) 11 SCC 684 and the decision in case of Joginder Pal and others v/s. State of Punjab and others reported in (2014) 6 SCC 644. It is lastly, submitted that as now the question remains only for one candidate, who has qualified through genuine selection procedure, the case of such candidate should be dealt with separately.
7. As against this, learned Standing Counsel for the Union of India appearing for the respondents-BSF submitted that as per the advertisement annexed to the petition, applications were invited for filling up of 561 vacancies for the post of constable (tradesman) in the Border Security Force during the year 2016-17. As per the advertisement, 28 vacancies were allotted to the Gujarat State. It is submitted that Call letters were issued to 18 candidates including the petitioners who qualified in written examinations for detailed medical examination. In above mentioned examination, 11 candidates were found 'fit' and 7 candidates were declared 'unfit'. It is submitted that in the meantime, Force Headquarters, Border Security Force, intimated vial communication dated 02.07.2017 that the recruitment process for the post of constable (tradesman) has been terminated with immediate effect due to some malpractices/irregularities observed in the Page 3 of 12 Downloaded on : Wed Jul 20 20:59:02 IST 2022 C/SCA/1895/2017 ORDER DATED: 18/07/2022 recruitment process across various states. It is submitted that therefore, a direction was issued to stop further recruitment process and all candidates found eligible in detailed medical examination may be conveyed by issuing appropriate communications. Furthermore, it was noticed that although some malpractice/irregularities were observed in the recruitment process, it was not possible to trace out the exact number of candidates who had caused malpractice/irregularities and therefore, the entire process had to be cancelled since otherwise it would not have been possible to justify or differentiate the meritorious candidates from those who had caused malpractice/irregularities.
8. Learned Advocate appearing for the respondent has therefore, relied upon the decision of the Division Bench of this Court in case of Union of India v/s. Kaustubhai Devang Pandya reported in 2016 (3) GLH (NOC)
4. He has also relied upon the decision of the Apex Court in case of Kerala State Road Transport Corporation and another v/s. Akhilesh V. S. and others passed in Civil Appeal No.3346 of 2019 and allied petitions to support his argument that there is no indefeasible right in favour of the petitioner to appointment merely on the ground of he having qualified in the written test.
9. Learned Advocate has submitted that very cancellation of the recruitment process, which is in question here, was the subject matter of challenge in the Writ Petition before Calcutta High Court, wherein Calcutta High Court after examining all the aspects delivered the decision on 01-03-2017 in Writ Petition No.4208(W) of 2017 in case of Chand Ali v/s. Union of India and others dismissing the petition with the cost of Rs.20,000/- and upholding action of the respondents.
10. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the Ministry of Home Affairs, Government of India through the Directorate General, Border Security Force announced an advertisement notice with a closing date of 20.06.2016. By way of such advertisement, recruitment applications Page 4 of 12 Downloaded on : Wed Jul 20 20:59:02 IST 2022 C/SCA/1895/2017 ORDER DATED: 18/07/2022 were invited for the post of Constable (Tradesmen) (Male Candidates) for the year 2016-17, for 29 States (then) and 7 Union Territories from across 17 centers for such recruitment for total 561 posts out of which Gujarat was eligible for 28 posts, out of which, the post for cook and barber were 3 general, 2 OBC, 2 ST and 1 general and 1 OBC respectively for Gujarat. In the recruitment the BSF reserved the rights to make changes/cancel/postpone the recruitment without assigning any reason. Said test was to be conducted in five rounds; (1) physical standard test and physical efficiency test, (2) trade test, (3) written test, (4) medical examination and (5) preparation of final merit list with age being given primacy in candidates with equal marks. The petitioners are one General Category applicant for cook and one SC category applicant for cook and one general category application for barber.
11. From the Advertisement issued pursuant to which, the petitioner has made application, it is pertinent to observe that amongst the General Instructions, Instruction No.11 provided for right which was reserved for BSF to make any changes or cancel or postpone the recruitment without assigning any reasons. Act on the part of respondents was therefore, in consonance with the Clause-11 of the General Instructions, which were contained in the very Advertisement dated 21-05-2016.
12. From the record, the Court observes that manner of irregularities, which had taken place in the recruitment drive, where on 25.04.2016, a tender was issued on one M/s. C. S. Datamation Private Limited, New Delhi, for printing of question papers and OMR sheets for the written exam. It appears that on 23.10.2016 written test was conducted after PST and PET tests and including the petitioners, six candidates were selected for cook and two for barbers in Gujarat. It appears that on 28.10.2016 a Board of Officers (BOO) was called for scanning and evaluation of OMR answer sheets for the written examination conducted on 23.10.2016. A total of 13,117 OMR sheets were received from the candidates across all 17 centers, out of which 9240 candidates Page 5 of 12 Downloaded on : Wed Jul 20 20:59:02 IST 2022 C/SCA/1895/2017 ORDER DATED: 18/07/2022 were shown as passed and 3877 candidates were shown as failed. The OMR sheets were in three copies with one being forwarded to the Central Recruitment Centre where the BOO was assembled. One copy was retained at the 17 respective recruitment centers and one copy was given to the concerned candidate. In 13 of the 17 centers, discrepancy in the OMR answer sheet was found when the revaluation was conducted on 29.12.2016. Subsequently, inquiry has been handed over to CBI, New Delhi, which has registered complaints (PE) No.AC1 2017A0004 dated 08.05.2017. Against the Commandant and Deputy Commandant (IT) BSF and Assistant Commandant Recruitment as well as M/s. C.S. Datamation Private Limited, New Delhi, and other unknown suspects on 08.05.2017. While preliminary internal investigation prior to handing over to CBI has found that wrongdoing has occurred in 13 out of 17 centers excluding Ahmedabad, it was not possible by such preliminary inquiry to trace out the exact number of candidates who has caused malpractice/ irregularities and therefore the entire recruitment process had to be cancelled. [2016 (0) AIJEL-HC 236177, Union of India v. Kastubhbhai Devang Pandya]- SLP dismissed.
13. The Court also observes that pending the present petition, the investigation by the CBI was also recorded by this Court in its order dated 06-02-2018 and this Court has recorded that the complaint is lodged with the CBI and the CBI is investigating the matter and proceedings were at the relevant time was at the stage of PE stage.
14. As is submitted, the Court has also taken into consideration the decision of the Calcutta High Court in Writ Petition No.4208(W) of 2017 in case of Chand Ali v/s. Union of India and others dated 01-03-2017, where the very recruitment proceedings were subject matter of challenge. On the very ground, the contending the Authorities ought to have taken such severe decision of cancelling recruitment only in respect of the States, where such malpractices have been committed. Calcutta High Court has intricately examined the procedure, which was undertaken Page 6 of 12 Downloaded on : Wed Jul 20 20:59:02 IST 2022 C/SCA/1895/2017 ORDER DATED: 18/07/2022 and which otherwise would have to be undertaken and thereafter upheld the decision of not going ahead with recruitment drive.
15. The Court therefore, is of the view that in the facts of the present case, the respondent was justified in taking the decision of cancelling the list of qualified candidates in the wake of cancelling the recruitment drive altogether under impugned Communication dated 02-01-2017.
16. Reliance placed by the learned Advocate for the petitioner in case of Inderpreet Singh Kahlon and others (supra) it would be appropriate to observe that the facts under which the Apex Court was compel to adopt the formula of segregating tainted candidates from non-tainted candidates, as in the facts of that case is as under:
"One Shri Ravinderpal Singh Sidhu was the Chairman of the Punjab Public Service Commission between 1996 to 2002. Allegations were made against him that he got a large number of persons appointed on extraneous consideration including monetary consideration. Such appointments were said to have been made during the period 1998 to 2001. Raids were conducted in his house on more than one occasion. A large sum of money (about Rs. 16 crores) was recovered from his custody and other relatives. Two First Information Reports; one on 25.3.2002 being FIR No. 7/02 and the other on 30.4.2002 being FIR No. 24/02; were lodged against him in that behalf. In the said First Information Reports nine officers of PCS (Executive Branch) were named but later on the allegations against two of them, viz., Rahul and Randip were withdrawn. As against sixty three officers involved in the PCS allied services; First Information Report was lodged only against one Kamaljeet Singh. So far as appointment to the posts of Tehsildar is concerned, FIR was lodged against none."
17. In the facts of this case, in Para-117 of the Judgment, the Apex Court addressed as a principle question need for adjudicating whether the respondents were justified in canceling entire selection, both Judicial and Executive Officers and it observes as under:
"117. The principal question which needs to be adjudicated is whether, in the facts and circumstances of these cases, the respondents were justified in cancelling the entire selection both of Page 7 of 12 Downloaded on : Wed Jul 20 20:59:02 IST 2022 C/SCA/1895/2017 ORDER DATED: 18/07/2022 executive and judicial officers?
118. Undoubtedly, in the selection process, there have been manipulations and irregularities at the behest of R.S. Sidhu, the then Chairman, Punjab Public Service Commission. On careful scrutiny of the facts and circumstances of the case, in my considered opinion, the High Court ought to have made a serious endeavour to segregate the tainted from the non- tainted candidates. Though the task was certainly difficult, but by no stretch of imagination, it was not an impossible task.
119. The peculiar facts of this case which need to be highlighted are that some of the candidates have worked for about three years and their services were terminated only on the basis of criminal investigation which was at the initial stage. The termination of their services as a consequence of cancellation of selection would not only prejudice their interests seriously, but would ruin their entire future career.
120. It may be pertinent to mention that during the said period there has been no allegation regarding the integrity or efficiency of these officers."
18. In the opinion of the Court, entire decision of the Apex Court had proceeded on the aforesaid issues, wherein the primarily candidates had already entered into the services and question of their termination of services as a consequence of cancellation of selection was under
consideration.
19. In the facts of this case, it is clear that the selection procedure had not ended and the petitioner has not entered into services of the respondent.
20. It would be at this stage, appropriate to examine the claim of the petitioner, who undoubtedly cleared the selection process to an extent that his name appeared in the list of candidates, who have qualified in written examination, conducted on 23 rd October, 2016 at BSF Campus, Gandhinagar, for the BSF Recruitment - 2016-2017 and were called for medical examination for the post of Constable (Tradesmen).
21. It is at that stage that the recruitment drive came to be canceled Page 8 of 12 Downloaded on : Wed Jul 20 20:59:02 IST 2022 C/SCA/1895/2017 ORDER DATED: 18/07/2022 altogether. The Apex Court in the decision of Kerala State Road Transport Corporation and another (supra) relying upon the previous decision of Kulwinder Pal Singh v/s. State of Punjab reported in (2016) 6 SCC 532 and in case of Manoj Manu v/s. Union of India reported in (2013) 12 SCC 171, has held that the candidates having found place in the select list, will not have indefeasible right to appointment.
22. Therefore, in the present case also, when the recruitment had stopped short of issuing the Appointment orders, in the opinion of the Court, no indefeasible right has occurred in favour of the petitioner to claim the Prayer Clause No.B for the appointment to the post of Constable (Tradesmen).
23. It would also be appropriate to refer the decision of this Court in case of Union of India v/s. Kaustubhai Devang Pandya (supra), where the facts of the case are as under:
"[3.6] It appears that after declaration of the result, there were complaints that malpractices were being adopted by some of the candidates using unfair means in the examination. That the complaint was received by the Postal Directorate on 08/09.04.2015 alleging irregularities in recruitment of P.A. / S.A. Direct Recruitment Examination for the year 2014 conducted on 01.06.2014 at different centres in Gujarat Circle. That the said complaint was inquired by a Vigilance Team of the Postal Directorate and it was found that there were good and sufficient reasons to suspect serious malpractice on the part of some of the candidates and officials of M/s. CMC Limited with or without connivance of outsiders in the conduct of the examination held in Gujarat Circle. It appears that based on the prima facie suspicion on the agency on the leakage of the question paper / answer key and violation of many of the provisions of the Agreement / Instructions of the Department by outsourced agency, possibility of involvement of outsiders, with or without connivance of M/s. CMC Limited, orders were issued for holding in abeyance of further appointments / training in respect of all the 22 postal circles, where the examination was conducted through the same outsourcing agency - M/s. CMC Limited. Vide order dated 27.04.2015 the Assistant Director General (DE), Ministry of Communication and I.T., Department of Posts addressed a letter to all the Chief Postmaster General except the Chief Postmaster General of Bihar, Delhi, Himachal Pradesh, Madhya Pradesh, Maharashtra and Uttar Page 9 of 12 Downloaded on : Wed Jul 20 20:59:02 IST 2022 C/SCA/1895/2017 ORDER DATED: 18/07/2022 Pradesh and directed that the appointments of successful candidates of P.A. / S.A. Examination for the year 2014, who were not yet issued the letter / order of appointment may immediately be held in abeyance till further orders and no training orders be issued in respect of the candidates in whose cases pre-appointment formalities have been completed. That in the meantime out of the selected candidates, 290 candidates were already given appointment by the Gujarat Circle, however on a probation of two years. It appears that thereafter and after a detailed investigation with regards to the conduct of the examination in respect of other Postal Circles was also undertaken. Since primarily, no vigilance angle was found to have been established in the fair conduct of the P.A. / S.A. Examination, in 11 circles viz. Andhra Pradesh, Assam, Jammu and Kashmir, Karnataka, Kerala, Maharashtra, North East, Odisha, Tamil Nadu, West Bengal and Punjab, the competent authority ordered revocation of the orders of holding in abeyance on the further appointment and training. However, the investigation revealed certain irregularities on mass level on the part of many candidates and officials of M/s. CMC Limited strongly suggesting leakage of question papers / answer key of the P.A. / S.A. Examination, in 5 circles viz. Rajasthan, Gujarat, Haryana, Uttarakhand and Chhatisgarh. It appears that with respect to other 5 circles viz. Uttar Pradesh, Himachal Pradesh, Delhi, Bihar and Madhya Pradesh where earlier examinations were cancelled due to certain other administrative reasons, the competent authority did not consider to revoke the orders of holding in abeyance of appointment / training orders. Out of the said 5 circles viz. Uttar Pradesh, Himachal Pradesh, Delhi, Bihar and Madhya Pradesh were held by the same agency, whose role in fair conduct of the examination was not under cloud, the competent authority did not consider allowing declaration of the results by the Department. While remaining two Circles, namely, Uttar Pradesh and Bihar Circles were directed to hold the re-examination at their lever without involvement of the agency.
[3.7] It appears that the investigation revealed serious irregularities / malpractices in the remaining six circles viz. Gujarat, Uttarakhand, Chhattisgarh, Haryana, Rajasthan and Jharkhand on the part of many candidates and the outsourcing agency. In respect of Jharkhand Circle, subsequent to the examination, the result was not declared and therefore, it was decided to cancel the process of recruitment outrightly. In respect of the remaining five circles, on the basis of the report of Vigilance investigation established that the malpractices occurred in these circles with a distinct pattern and the examination process was severely and extensively compromised and it was found that there were large scale of malpractices and use of unfair means including impersonation, with the connivance of the Page 10 of 12 Downloaded on : Wed Jul 20 20:59:02 IST 2022 C/SCA/1895/2017 ORDER DATED: 18/07/2022 outsiders and no exercise could possibly identify with certainty the candidates, who did not use any unfair means or were not privy to the question paper / answer key. The indepth investigation carried out by the Vigilance Division of the Postal Directorate also revealed and found that the examination process has been compromised by the outsourced agency M/s. CMC Limited with the involvement of some other unidentified persons. Therefore, a conscious decision was taken on the investigation reports disclosing large scale malpractice. It was decided that the examination / result of P.A. / S.A. be cancelled in five circles viz. Chhatisgarh, Gujarat, Haryana, Rajasthan and Uttarakhand. Accordingly, the results of 2013-14 P.A. / S.A. Direct Recruitment Examination came to be canceled and consequently the services of the selected candidates who were also appointed on probation of two years came to be canceled and they came to be terminated. That cancellation of the result of the consequent action of terminating the services of the candidates who were appointed on probation period of two years gave rise to the respective original applications before the learned Tribunal."
24. In those facts, the Court has proceeded to observe as under:
"23. We are aware, that the abrogation of the examination, would result in some inconvenience to all concerned and that same extra time would be consumed for holding a fresh examination with renewed efforts therefor. This however, according to us, is the price, the stakeholders would have to suffer in order to maintain the impeccable and irrefutable sanctity and credibility of a process of examination, to assess the innate worth and capability of the participating candidates for being assigned inter se merit positions commensurate to their performance based on genuine and sincere endeavours. It is a collective challenge that all the roleplayers would have to meet, by rising to the occasion and fulfill the task ahead at the earliest, so as to thwart and abort the deplorable design of a mindless few seeking to hijack the process for selfish gain along with the unscrupulous beneficiaries thereof. Though the Board has taken a plea that having regard to the enormity of the exercise to be undertaken, the same cannot be redone before four months, we would emphasize that this is an occasion where it (the Board) ought to gear up in full all its resources in the right spirit, in coordination with all other institutions that may be involved so as to act in tandem and hold the examination afresh at the earliest."
25. Other two decisions cited by the learned Advocate for the petitioner in case of High Court of Panjab and Haryana (supra) and the decision in Page 11 of 12 Downloaded on : Wed Jul 20 20:59:02 IST 2022 C/SCA/1895/2017 ORDER DATED: 18/07/2022 case of Joginder Pal and others (supra), it would be enough to mention that both the cases had arisen as off suit of the decision of Apex Court in case of Inderpreet Singh Kahlon and others (supra), as it was pertaining to the same tainted recruitment process attributed to malpractice typical to the facts of those case.
26. In the opinion of the Court, ratio of the Court in these judgments, would not apply to the facts of the present case, as the facts of the present case as discussed above, would not require any direction for undertaking process of segregating case of tainted candidates from non- tainted candidates.
27. In view of the aforesaid reasoning, the Court is not inclined to interfere in exercise of Art. 226 of the Constitution of India. No case is made out to issue any direction to the respondents to issue any direction to consider the case of the petitioner for appointment. However, the Court deems it fit to observe that considering the young age of the only petitioner left out and the fact that to the extent that inquiry by the BSF and the investigation by the CBI, which has progressed till date, does not indicate any illegality in the Centre, where the petitioner appeared. The Court leaves it open for the petitioner to make the Representation to the respondent - BSF to treat the case of the petitioner in special facts and circumstances and if any vacancies still available, then consider the case of the petitioner in accordance with the law and communicate the outcome to the petitioner at the earliest.
28. In view of the aforesaid, the petition stands disposed of accordingly. Direct service is permitted.
(A.Y. KOGJE, J) PARESH SOMPURA Page 12 of 12 Downloaded on : Wed Jul 20 20:59:02 IST 2022