Service Law – Recruitment – Examination – Irregularities in – An advertisement dated 26.12.2009 issued for 231 vacancies for the post of Head Clerk [(Grade 2) (DASS)] in GNCTD – 62,056 application received – 8,224 appeared in Tier-I Examination – Results were declared in 2014 – Shortlisted candidates appeared in Tier-II Examination in the year 2015 – Several complaints were received regarding leakage of question papers, mass cheating, allotment of common examination centre and rooms to members of the same family, in the conduct of both the Tier-l and Tier-ll examinations – Two Committees were constituted to enquire into the irregularities, both found serious irregularities in the examination – An FIR was registered at Anti-Corruption Branch (ACB) u/s. 13(1)(d) of Corruption Act r/w. s.120B of IPC – Dy. CM recommended for the cancellation of exam and a notification was issued for cancellation of exam – Central Administrative Tribunal set aside the said cancellation notification holding that the appointments would be subject to ACB Investigation – High Court while upholding the order of the Tribunal, confined the relief to only six applicants who approached the Tribunal – On appeal, held: A fair and reasonable process of selection to posts subject to the norm of equality of opportunity u/Art. 16(1) is a constitutional requirement – Where the recruitment to public employment stands vitiated as a consequence of systemic fraud or irregularities, the entire process becomes illegitimate – The requirement that a public body must act in fair and reasonable terms animates the entire process of selection – Recruitment to public service must command public confidence – In the present case, the report of the Committee dwells on: (i) The delay of five years in holding the Tier-I examination after the advertisement was released in 2009; and (ii) The issuance of admit cards only through the electronic mode, which was not prescribed in the advertisement – Besides other irregularities, Committee also noted that there was a racket which had led to the impersonation of candidates – There was absence of randomization, many cases had emerged where two or more members of a single family sat in consecutive order and were falling under the zone of probable selection – The Committee found that the videography was blurred, thumb impressions were unrecognizable, jammers were not working properly and candidates were allowed to appear irrespective of their educational qualifications – Further, it was noted that allegations of flying squad members passing answers onto candidates – Considering all the irregularities, the Secretary Vigilance also opined that the entire process of recruitment appeared to be vitiated – There was a denial of equal access to the Tier-l examination and the allegations showed that the credibility of the process itself had been eroded – In such a situation, where a decision is taken by the Government to cancel the entire process, it cannot be held to be irrational or arbitrary, applying the yardstick of fair procedure and proportionality to the decision-making process – Both the judgments of High Court and the Tribunal are unsustainable. Constitution of India – Article 16(1) – Equality of opportunity – Public Employment – irregularities – Held: A fair and reasonable process of selection to posts subject to the norm of equality of opportunity u/Art. 16(1) is a constitutional requirement – Where the recruitment to public employment stands vitiated as a consequence of systemic fraud or irregularities, the entire process becomes illegitimate.
Constitution of India – Article 14 – Right To Equality – Recruitment – Held: 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 – A fair and reasonable process is a fundamental requirement of Article 14 – 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 wrongdoing 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. Service Law – Recruitment – Irregularities in Examination – Position in Law – discussed.
Disposing of the appeals, the Court
HELD: 1. 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 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 wrongdoing 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 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. [Para 33] [1106-F-H; 1107-A-H]
2. The Committee noted that there was a delay of almost five years in conducting the Tier-I examination. As a result, of the 62,056 applicants only 8224 had appeared at the Tier-I examination giving rise to an apprehension that adequate information had not been furnished to candidates. The Committee furnished examples of candidates who had secured high marks in Tier - I examination but extremely low marks in the Tier-II exam. Candidates also appeared to be concentrated from a particular area of Delhi. The Committee found it “astonishing that the whole marks lists is dominated by a particular section of society” based on their surnames. There were instances of candidates who had secured high marks in Tier-I failing to appear at the Tier-II examination. The Committee was critical of the role of DSSSB in failing to devote serious attention to the irregularities which had taken place during the course of the examination. [Para 49][1122-G-H; 1123-A-B]
3. The Committee had representations before it from candidates as well. The Committee found that members of the same family were found to be sitting in close proximity both in the Tier-I and Tier-II examinations of which details were tabulated in the report. The Committee noted that it had addressed a questionnaire to the officials of DSSSB in regard to the alleged irregularities but they expressed their inability to answer the queries. The Committee found that in the absence of randomization, many cases had emerged where two or more members of a single family sat in consecutive order and were falling under the zone of probable selection. A majority of candidates falling in the zone of selection appeared to belong to the same geographical area. In this backdrop and considering the voluminous nature of the documentary material, the Committee was of the view that either the CBI or the Crime Branch would be able to investigate into the matter. The matter did not rest there. In its report, the first Committee found that there were serious irregularities in the examinations conducted by DSSSB for the post of Grade-II DASS. The report of the Committee dwells on: (i) The delay of five years in holding the Tier-I examination after the advertisement was released in 2009; and (ii) The issuance of admit cards only through the electronic mode, which was not prescribed in the advertisement. [Para 50][1123-B-F]
4. The Committee was of the view that one of the main reasons for the appearance of a small proportion of candidates as compared to the applications was the inability of candidates to access the internet to download the e-admit cards. This, in the view of the Committee, prima facie vitiated the selection process. DSSSB in its reply had noted that it would earlier remit the admit cards by post but this gave rise to administrative difficulties as a result of postal delays, changes in address and the issuance of duplicate cards in place of those lost or damaged in transit. [Para 51][1123-F-H]
5. On 5 June 2013, the Board had followed the pattern of the UPSC and Railway Board and decided to also issue e-admit cards which was to be given a wide publicity. On this aspect the Committee noted that the advertisement had not mentioned that admit cards shall be issued through the electronic medium only. A period of five years had elapsed since the date of the advertisement. It was not possible for the candidates to keep a vigil on the notifications of a single examination. In this backdrop, the decision of DSSSB, during the course of the process, to allow only e-admit cards was a deviation which resulted in a small number of candidates appearing in the Tier-I examination. This was clearly a pointer to the denial of equal access and opportunity to all candidates in the selection process. The Committee buttressed this finding by observing that there was a wide variation between the marks obtained in the Tier-I and Tier-II examinations. In the absence of randomization, it was found that members of a family and close relatives sat in the same room and details of these candidates were duly tabulated. The Committee dealt with the explanation of DSSSB that the software for randomization was not available prior to 28 June 2015 and that steps have been taken for reshuffling candidates. The Committee did not accept the explanation of the Board, noting that if randomisation had been done in the Tier-I examination, it was then inconceivable as to how family members and close relatives sat in the same room. Moreover, it found it surprising that randomisation had been done in Tier-I and not in Tier-II. Though, according to DSSSB, manual reshuffling had been done for the Tier- II examination, even then a considerable number of closely related persons sat in proximity at the Tier-II examination. Besides these irregularities, the Committee noted that there was a racket which had led to the impersonation of candidates. This racket involved a person who was the Chief Invigilator at a particular centre. It was alleged that he was connected with a coaching centre which was also involved in the leakage of the question papers. The Committee noted the allegation that this person had repeatedly fixed his duties in a choice of his own centres with the help of DSSSB staff and there were instances of impersonation which had emerged. The Committee proceeded to tabulate these instances. Apart from this, the Committee found that the videography was blurred, thumb impressions were unrecognizable, jammers were not working properly and candidates had been allowed to appear irrespective of their educational qualifications. Further, it was noted that allegations of flying squad members passing answers onto candidates could not be ruled out. Now, in this backdrop, the Secretary Vigilance opined that the entire process of recruitment appeared to be vitiated. [Para 52][1124-A-H; 1125-A]
6. The complaints were carefully analysed by the first Committee and as noted earlier serious irregularities were found. The irregularities were not confined to acts of mal-practice or unfair means on the part of a specific group of persons. On the contrary, the report of the Committee found deficiencies of a systemic nature which cast serious doubts on the legitimacy of the entire process of recruitment involving both the Tier-I and Tier-II examinations. The order of the Deputy Chief Minister dated 23 December 2015 did not differ with the conclusions of the first Committee. In fact, the said order refrained from commenting on the findings of the first Committee. All that the Deputy Chief Minister’s order directed was the narrowing of the scope of further investigation to one of the irregularities, that is, impersonation. In directing that a verification be carried out on whether any of the candidates in the zone of selection had been guilty of impersonation, the Deputy Chief Minister’s order did not wipe out the irregularities in the entire examination process. It is not possible to accept the submission that after ordering a verification on impersonation, nothing further remained to be done and that there could be no further rejection of the sanctity of the process on the basis of the report of the first Committee. It is quite possible that the Deputy Chief Minister directed a further investigation into the allegations of impersonation only to lend credibility to the ultimate decision which he would take. Mr Patwalia has made a strenuous effort to read from the explanation submitted by DSSSB, urging that as many as three IAS officers and other officers who had appended their signatures to the explanatory note provided a justification to the defence that the Tier-I and Tier-II examinations did not suffer from flaws. It must be noted that the conduct of DSSSB and its officials was itself under a cloud. Their explanation could by no means be regarded as conclusive or binding upon the authorities of GNCTD. The Deputy Chief Minister in recommending that the entire process be cancelled emphasised the systemic nature of the violations which had taken place. These violations may or may not involve all of the candidates within the ultimate zone of selection but that in our view is beside the point for the simple reason that the gravamen of the charge in the present case is not in regard to the taint which attaches to a specific group of persons but to the sanctity of the recruitment process as a whole. The precedents of this Court sufficiently demonstrate that when the credibility of an entire examination stands vitiated by systemic irregularities, the issue then is not about seeking to identify the candidates who are tainted. In the present case, as we have seen, there was a basic denial of equal access to the Tier-I examination. The nature of the allegations which were found to be substantiated upon a careful examination by the first Committee showed that the credibility of the process itself had been eroded. In such a situation, where a decision is taken by the Government to cancel the entire process, it cannot be held to be irrational or arbitrary, applying the yardstick of fair procedure and proportionality to the decision-making process. [Para 55][1126-B-H; 1127-A-D]
7. Recruitment to public services must command public confidence. Persons who are recruited are intended to fulfil public functions associated with the functioning of the Government. Where the entire process is found to be flawed, its cancellation may undoubtedly cause hardship to a few who may not specifically be found to be involved in wrong-doing. But that is not sufficient to nullify the ultimate decision to cancel an examination where the nature of the wrong-doing cuts through the entire process so as to seriously impinge upon the legitimacy of the examinations which have been held for recruitment. Both the High Court and the Tribunal have, in our view, erred in laying exclusive focus on the report of the second Committee which was confined to the issue of impersonation. The report of the second Committee is only one facet of the matter. The Deputy Chief Minister was justified in going beyond it and ultimately recommending that the entire process should be cancelled on the basis of the findings which were arrived at in the report of the first Committee. Those findings do not stand obliterated nor has the Tribunal found any fault with those findings. In this view of the matter, both the judgments of the Tribunal and the High Court are unsustainable. [Para 57][1127-G-H; 1128-A-C]
8. The Tribunal while setting aside the decision to cancel the recruitment process directed the Government to process the appointments of all 281 candidates who were found to be within the zone of selection though as a matter of fact only 6 of them had moved the Tribunal. After DSSSB and GNCTD moved the High Court in proceedings under Article 226 to challenge the decision of the Tribunal, intervention applications were moved by several candidates. These interventions were rejected by the High Court and we have also extracted from the order passed during the pendency of the proceedings on 15 December 2017 . The High Court while dismissing the applications for intervention noted that the cause of action had accrued on 15 March 2016 when the entire examination had been cancelled, in spite of which none of the intervening candidates had challenged the decision. The judgment of the High Court in the present case was delivered on
13 January 2020 and it is only thereafter that this Court has been moved under Article 136 of the Constitution. Some of the petitioners who instituted Special Leave Petitions before this Court had not even moved applications for intervention before the High Court. Others did not pursue their remedies against the order of the High Court dated 15 December 2017 for over 2 years. They have taken no steps to challenge the decision for the cancellation of the examination. In view of the fact that this Court has upheld the submissions of DSSSB and GNCTD and proceed to set aside the judgment of the High Court, the SLPs filed by the candidates would have to stand rejected, in any event. [Para 59][1128-E-H; 1129-A-B]
9. For the above reasons, this Court order and direct: (I) The facts which have come to light during the course of the hearing of this batch of SLPs reflect on the serious flaws in the process which was conducted by DSSSB. DSSSB and GNCTD must now take adequate measures to ensure against the recurrence of such instances which erode the credibility of and public confidence in the recruitment process. This court directs that a comprehensive exercise to re-visit the modalities and safeguards be carried out within a period of two months to ensure that the probity of the recruitment process in future is maintained;
(ii) The notification dated 15 March 2016 of GNCTD cancelling the Tier-I and Tier-II examinations held for recruitment to the post of Head Clerk [(Grade II (DASS)] under post code 90/09 is upheld. [Para 60][1129-B-E]
Bihar School Examination Board v. Subhas Chandra Sinha & Others (1970) 1 SCC 648 : [1970] 3 SCR 963; Anamica Mishra v. UP Public Service Commission, Allahabad (1990) Supp. SCC 692: [1989] Suppl. SCR 124; Madhyamic Shiksha Mandal, MP v. Abhilash Shiksha Prasar Samiti (1998) 9 SCC 236; Union of India v. Rajesh P U Puthuvalnikathu (2003) 7 SCC 285 : [2003] 1 Suppl. SCR 883; Inderpreet Singh Kahlon v. State of Punjab (2006) 11 SCC 356 : [2006] 1 Suppl. SCR 772; Joginder Pal v. State of Punjab (2014) 6 SCC
644 : [2014] 6 SCR 383; Chairman All India Railway Recruitment Board v. K Shyam Kumar (2010) 6 SCC
614 : [2010] 6 SCR 291; State of Tamil Nadu v. A Kalaimani 2019 SCC Online 1002; Gohil Vishvaraj Hanubhai v. State of Gujarat (2017) 13 SCC 621 : [2017] 3 SCR 401 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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