Indian Kanoon - Search engine for Indian Law

A     Broad contours of the litigation


B     Factual background


C     Proceedings before the Tribunal


D     Proceedings before the Delhi High Court


E     Submissions


F     The position in law


G     The present case





                                                                                  PART A


A     Broad contours of the litigation


1     Leave granted.


2     This judgment visits a familiar conundrum in service jurisprudence. The

constitutional values which undergird Articles 14 and 16 mandate that selection processes conducted by public authorities to make recruitments have to be fair, transparent and accountable. All too often, human fallibility and foibles intrude into the selection processes. Selection involves intense competition and there is no dearth of individuals who try and bend the rules to gain an unfair leap in the race. Irregularities in the process give rise to misgivings over whether the process has denied equal access to all persons. The sanctity of the selection process comes under a cloud. The detection of individual wrongdoing by candidates may result in action being taken to exclude those whose credentials or performance is tainted. But when the entire process is tainted, the authority in charge of conducting it may decide to cancel the selection as a whole. Judicial review is then invoked to challenge the decision to cancel the entire process. The guiding principles have evolved over the past five decades as new challenges emerged and novel attempts to suborn the legitimacy of recruitment processes have come to the fore. The Delhi High Court in the present case upheld the view of the Central Administrative Tribunal (“Tribunal”) that the cancellation of the entire process was invalid but it confined the relief to six candidates who had moved the proceedings before the Tribunal in the first instance. Like other cases of its genre, this batch of appeals calls the court to balance two competing considerations : the need to preserve public  PART A confidence in and the sanctity of selection to public posts and the requirement of observing fairness to candidates who invest time and resources in attempting to clear through a selection. Both these considerations have a constitutional foundation going beyond service and administrative law principles. The issue has travelled to the court for resolution and the path ahead requires us to revisit and evolve the law on the subject.

(i) The ACB investigation was confined to only those candidates whose conduct was suspected;

(ii) The status report of the ACB indicated that 281 candidates did not form part of the investigation; and

(iii) As a result of the exercise conducted by the second Committee, it was possible to identify and separate tainted from untainted candidates. 30 In the above backdrop, Mr PS Patwalia, learned Senior Counsel urged that the decision of the Tribunal to set aside the cancellation of the selection process is eminently fair and proper. Moreover, it was urged that the six candidates who had approached the Tribunal and to whom relief has been confined by the High Court need not be required to appear at the Tier-II examinations once the cancellation of the results has been set aside. As regards candidates who had not moved the Tribunal, it was urged that the benefit of the order setting aside the cancellation of the recruitment process must enure to all candidates among the group of 281 persons who have been found to be free of taint.

F     The position in law


33    In deciding this batch of SLPs, we need not re-invent the wheel. Over the last

five decades, several decisions of this Court have dealt with the fundamental issue of when the process of an examination can stand vitiated. Essentially, the answer to the issue turns upon whether the irregularities in the process have taken place at a  PART F systemic level so as to vitiate the sanctity of the process. There are cases which border upon or cross-over into the domain of fraud as a result of which the credibility and legitimacy of the process is denuded. This constitutes one end of the spectrum where the authority conducting the examination or convening the selection process comes to the conclusion that as a result of supervening event or circumstances, the process has lost its legitimacy, leaving no option but to cancel it in its entirety. Where a decision along those lines is taken, it does not turn upon a fact-finding exercise into individual acts involving the use of mal-practices or unfair means. Where a recourse to unfair means has taken place on a systemic scale, it may be difficult to segregate the tainted from the untainted participants in the process. Large scale irregularities including those which have the effect of denying equal access to similarly circumstanced candidates are suggestive of a malaise which has eroded the credibility of the process. At the other end of the spectrum are cases where some of the participants in the process who appear at the examination or selection test are guilty of irregularities. In such a case, it may well be possible to segregate persons who are guilty of wrong-doing from others who have adhered to the rules and to exclude the former from the process. In such a case, those who are innocent of wrong-doing should not pay a price for those who are actually found to be involved in irregularities. By segregating the wrong-doers, the selection of the untainted candidates can be allowed to pass muster by taking the selection process to its logical conclusion. This is not a mere matter of administrative procedure but as a principle of service jurisprudence it finds embodiment in the constitutional duty by which public bodies have to act fairly and reasonably. A fair and reasonable process  PART F of selection to posts subject to the norm of equality of opportunity under Article 16(1) is a constitutional requirement. A fair and reasonable process is a fundamental requirement of Article 14 as well. Where the recruitment to public employment stands vitiated as a consequence of systemic fraud or irregularities, the entire process becomes illegitimate. On the other hand, where it is possible to segregate persons who have indulged in mal-practices and to penalise them for their wrong- doing, it would be unfair to impose the burden of their wrong-doing on those who are free from taint. To treat the innocent and the wrong-doers equally by subjecting the former to the consequence of the cancellation of the entire process would be contrary to Article 14 because unequals would then be treated equally. The requirement that a public body must act in fair and reasonable terms animates the entire process of selection. The decisions of the recruiting body are hence subject to judicial control subject to the settled principle that the recruiting authority must have a measure of discretion to take decisions in accordance with law which are best suited to preserve the sanctity of the process. Now it is in the backdrop of these principles, that it becomes appropriate to advert to the precedents of this Court which hold the field.