Manager, Calcutta Telephones District, Bharat Sanchar Nigam Limited & Ors. Vs.
Surendra Nath Pandey & Ors.
J U D G M E N T
appeal is directed against the final judgment and order of the High Court of
Judicature at Kolkata dated 1st September, 2009, in F.M.A. No. 807 of 2009. The
Division Bench of the High Court in the impugned order dismissed the appeal of the
appellants thereby affirming the order passed by the Learned Single Judge in W.P.
No. 18313 of 2004, directing the appellants herein, to inform the respondents about
the marks obtained by them in the examination in question and grant promotion to
the respondents pursuant to the result of the departmental examination.
respondents are employees of the appellants, i.e., Department of Telecommunication
within the Department of Post & Telegraph, Government of India, now renamed
Bharat Sanchar Nigam Limited. They appeared in an examination for being promoted
to Junior Accounts Officers. Junior Accounts Officers Service Postal Wing (Group
C) Recruitment Rules, 1977 regulate recruitment and conditions of service for this
post. The rules provided for a two stage departmental examination for appointment
to this post.
appellants conducted the aforementioned departmental examination on 20th February,
1999, 21st February, 1999 & 22nd February, 1999 for appointing Junior
Accounts Officers in the Department of Telecommunication under the Ministry of Communication.
The respondents appeared in the said examination; however, when the result consisting
of lists featuring names of both successful and unsuccessful candidates was displayed,
their names did not appear in either of the lists.
respondents in order to know their result deposited Rs. 25/- each for being apprised
of the marks secured by them along with a representation before the appropriate
authority. The respondent's request was in accordance with Rule 13 of the
(Rules Relating to Departmental Examination, Part I General) of Post & Telegraph
Manual, Volume IV. Rule 13 states: "Communication of Marks: (a) After the result
of an examination has been announced, the marks obtained in such paper by a
candidate maybe communicated to him, and to him alone, on application, and on payment
of a fee of Re.1/- per examination per candidate..... (d) Application for supply
of marks should be given priority at all stages."
Thereafter, the Assistant
General Manager, Recruitment & Establishment, Calcutta Telephones wrote a letter
to the 3Assistant Director General (Departmental Examination), New Delhi on 9th
February, 2000 requesting disclosure of marks obtained by the respondents in
the said examination.
respondents' request for being intimated of the marks secured was not acceded to,
nor did the authorities reply to the representation.
the respondents filed O.A. No. 629 of 2000 before the Central Administrative Tribunal
seeking disclosure of marks and disposal of the representation by the respondents.
Vide its order dated 26th July, 2000 the tribunal directed the appellants to publish
the result of the said examination, dispose off the representation and allow
the respondents to appear in the examination next year.
Chief General Manager, Calcutta Telephones complying with the order of the tribunal
disposed of the respondent's representation by means of a speaking order. It was
stated therein, that the respondent's candidature was cancelled on account of some
irregular practices having been noticed on their part. It was further stated that
on account of cancellation of candidature, it was not permissible to communicate
the marks obtained by the respondents in the said examination contemplating disciplinary
proceedings for adopting unfair means.
the abovementioned order passed by the Chief General Manager, Calcutta Telephones,
the respondents filed W.P. No. 18313 of 2004 in the Calcutta High Court. The writ
petition was allowed, quashing the order of cancellation of candidature of the respondents.
The learned Single Judge held that the appellants had failed to establish their
claim wherein the respondents were accused of mass copying and were, therefore,
obliged to intimate to the respondents, the marks secured by them in the examination.
The learned counsel for
the appellants had alleged before the learned Single Judge that the syllabus for
the examination prescribed the books allowed to be used by the candidates for answering
questions however; the respondents had used guide books for answering questions
in the examination. Use of guide books was not permissible. The Learned Single Judge
observed that, the allegation was unfounded since the supervising officers in the
examination hall did not prevent the respondents from using the guide books. Moreover,
no disciplinary action was initiated against the respondents.
On the other hand, the
respondents were awarded ad hoc promotion to the post of Junior Accounts Officer;
an unmarred vigilance report is a pre-requisite for the same. The reports submitted
by the vigilance wing stated that the examination was conducted in a fair and peaceful
manner. The appellants were, therefore, directed to inform the respondents of the
marks obtained by them and to consider them for promotion if successful in the examination.
They were also held entitled to the financial benefits that would have accrued
to them since the date of adhoc promotion.
appellants aggrieved by the order and judgment of the learned Single Judge, filed
appeal before the Division Bench of the Calcutta High Court vide FMA No. 807 of
2009. The Division Bench dismissed the appeal by affirming the decision of the learned
The Division Bench has
observed that the appellants' contention of there being no scope for disciplinary
action against the erring employees could not be accepted, especially since the
respondents had been granted ad-hoc promotion. The Division Bench stated that it
is well settled that promotion wipes out all past alleged misconduct. It was
also observed that the respondent's decision not to appear in the examination in
the subsequent year could not act as an estoppel for challenging the action of
the appellants. Hence, the present appeal.
have heard the learned counsel for the parties.
Pinki Anand, learned senior counsel appearing for the appellants submitted that
both the learned Single 7Judge as well as the Division Bench have erred in
coming to the conclusion that the decision for cancellation of the examination
was in breach of rules of natural justice. She submits that this is a case of
mass-copying; therefore, the question of giving opportunity of hearing to each
individual candidate did not arise. Rule 18 is applicable in the case of
individual candidate who is found to have used unfair means.
In this case,
mass-copying was discovered only because the answers given to some of the questions
were identical. Subsequently, it was discovered that answers to questions in Paper
X given by 66 candidates was so much similar as to indicate suspected mass-copying.
Consequently, a three member committee was constituted to examine the issues.
Upon examination of the relevant material, the committee concluded that it was a
case of mass-copying. On the basis of their report, the candidature of 66
candidates including the respondents herein was cancelled. Learned senior counsel
further submitted that the candidates had copied the answers from guide book which
was not permissible.
They were only entitled
to make the use of the books which was on the list of the prescribed books. It
is further submitted that undoubtedly the candidates had been given ad-hoc promotion.
However, for regular promotion, it was necessary for the candidates to pass the
departmental examination. She further submits that CAT in its order dated 26th July,
2000 had directed the appellants to allow the respondents and all other candidates
to appear in the examination, if they were otherwise eligible or if they wish
to appear. Taking advantage of this direction, 42 candidates, who were similarly
situated as the respondents, appeared in the subsequent examination.
They were duly given
regular promotion. However, the respondents did not avail of the chance. Therefore,
they can not claim promotion on regular basis. In support of her submissions, learned
senior counsel relied on the judgments in the case of The Board of High School &
Intermediate Education U.P. Vs. Bagleshwar Prasad, Union 1 (1962 3 SCR 767) Public
Service Commission Vs. Ja gannath Mishra , Madhyamic Shiksha Mandal, M.P. Vs. Abilash
Shiks ha Prasar Samiti 3 , Chairman J & K State Board Education Vs. Feyaz Ahmed
Malik & Ors. 4 , and Chairman, All India Railway Recruitment Board Vs. K.
Shyam Kumar & Ors.
Bidyut Kumar Mukherjee, learned senior counsel appearing for the respondents submits
that the SLP does not involve any substantial question of law. The learned
Single Judge as well as the Division Bench has only redressed the injustice
that had been done to the respondents. Learned senior counsel submits that this
plea of mass-copying is an afterthought; initially when the respondents had approached
the CAT, the appellants did not take any plea with regard to the cancellation of
the whole examination.
The respondents only came
to know about it when they received the speaking order. Learned senior counsel
2 2009 (9) SCC 2373 (1998 (9) SCC 236,4 (2000 (3) SCC 59)5 (2010 (6) SCC 614). further
submitted that during the proceeding before the learned Single Judge, the appellants
did not produce the original record, therefore, the question would arise as to `how'
and `who' cancelled the result of the entire examination. It is submitted by Mr.
Mukherjee that the report of the three member departmental committee was available
with the department on 3rd January, 2000. The same was not brought to the notice
of the CAT when it delivered its order on 26th July, 2000.
It is further submitted
that there is no provision under the rules for constituting a three member committee.
In any event, the proceedings before the committee are shrouded in mystery.
None of the candidates was asked to appear before the committee, even the examiners
and/or the supervising staff were not called for questioning. By his letter
dated 14th October, 1999, DGM (Admn.) Calcutta Telephones forwarded the report of
DE (Vigilance)/CTD to ADG (DE), New Delhi. In this report, it was stated that
the examination was conducted in a fair and peaceful manner on all the three
dates as per the report of the Officers of the Vigilance Wing.
Making a reference to
the rules relating to the departmental examination, Part III of the rules relates
to instructions for the supervising officers. Rule C requires that the supervising
officer should make certain announcements before the commencement of the examination.
These are that: candidates should make sure that they have no unauthorized books
or paper with them; they should carefully read and follow the instructions on the
cover of the answer book as also on the question paper and they will be expelled
from the examination hall for resorting to unfair means and subjected to departmental
proceedings. Rule 4E provides that supervision must be effective and active.
It is not sufficient
for them to be merely present in the examination hall. Referring to Rule 26,
learned senior counsel submits that on conclusion of the examination after the
last paper, the supervising officer is required to give a very comprehensive certificate
in the form prescribed in the aforesaid rules. According to the learned senior
counsel, once the certificate was issued 12by the supervising staff, a presumption
would arise that the candidates had not used any books of reference except those
authorised for answering papers. Learned senior counsel further submitted that
action against the departmental candidates is to be taken under Rule 18 contained
in Part I of the Rules relating to departmental examination.
Under this rule,
there is no provision for cancellation of the report. Under Rule 14 of Part IV,
disciplinary proceedings have to be initiated against the candidate for using
unfair means. None of the candidates were proceeded against, departmentally. It
is submitted that the result could be cancelled only after the candidate is found
guilty. This can only be on the basis of a finding of unfair means given by a properly
constituted committee. Without completing the proceeding under the aforesaid rules,
42 candidates were permitted to take the examination on the basis of the order
passed by the CAT on 26th July, 2000. Those candidates had been given regular promotion
on the basis of the subsequent examination.
The respondents have been
denied the promotions as they have not appeared in the examination. According to
the learned senior counsel, the action of the respondents in not permitting the
respondents promotion on a regular basis is violative of Articles 14 and 16 of the
Constitution. It is emphasised by Mr.Mukherjee that all the respondents have
been given ad-hoc promotion and are continuing on the promoted post. Since the
ad-hoc promotion can be given only with the clearance from the vigilance department,
according to the learned senior counsel, the respondents are entitled to be regularized
on the post on which they have been promoted on ad-hoc basis on numerous occasions.
Finally, it is
submitted by Mr.Mukherjee that, in fact, there is no conclusive proof that the
respondents have indulged in mass copying from the guide book which had not even
been published at the time of the examination. It is pointed out that the guide
book was published in December, 1999 whereas the examination had been held on 18th,
19th & 20th of February, 1999. According to the learned senior counsel the judgment
14 of the Division Bench correctly recorded the conclusion that since the respondents
have been given ad-hoc promotion in the next higher rank, any past alleged misconduct
is wiped out.
reply, Ms. Pinki Anand, learned senior counsel reiterated that rule 18 has no
application in the facts and circumstances of this case. There is no provision under
the rules specifically dealing with cases of mass- copying. The rule only deals
with the cases of individual use of unfair means.
counsel further submitted that the respondents have not pleaded either in the
OA or in reply to the writ petition in the High Court that the cancellation of the
examination was in breach of rules of natural justice. Even the submissions
with regard to breach of rules of natural justice are made for the first time in
have considered the submissions made by the learned counsel for the parties at length.
The undisputed facts are that all the respondents had participated in the departmental
examination. The respondents were permitted the use of books specifically
prescribed for the purpose of answering the question paper. The books that are prescribed
do not include the guide book which was used by all the candidates. Upon completion
of the examination, the supervisor undoubtedly gave a report that the examination
has been held peacefully and in a fair manner.
this basis, Mr. Mukherjee has submitted that this would lead to a presumption
that no unfair means had been used. We are unable to accept such a submission. The
report at best indicates that the examination was not disrupted by any untoward
incident. It has been rightly pointed out by Ms. Pinki Anand that the use of
unfair means was not detected in the examination centre. It was detected by the
examiner of the answer books of Paper X.
It was noticed that the
answers written by 66 candidates at the centre at which the respondents along with
other candidates had taken the examination were so similar as to indicate that this
case is a suspected mass copying. The examiner, therefore, did not evaluate the
answer books of the candidates allegedly involved in mass-copying. With a view to
look into the observations of the examiner, it was decided by the Adviser (Finance),
DOT that the answer books of the candidates suspected to have indulged in mass-copying
be gone through by three high ranking officers of the department.
Therefore a three member
committee was constituted to submit its report on the following points : (a) Whether
the observation of the examiner is correct that the answers written by the candidates
tally word for word with those given in the key and therefore full marks would
have to be awarded to all these candidates suspected to have indulged in
mass-copying; b) Whether the observation of the examiner regarding suspected mass-copying
is reasonably substantiated on the basis of the review of the answer-books; and
c) In case the inference of mass-copying is not reasonably established, the committee
should also suggest guidelines, if any, considered necessary for evaluating
aforesaid committee examined all the 66 answer books through evaluated answer books
which were supplied for comparison and review. The Committee observed as
1. The observation of
the examiner is correct. This is an established case of mass copying.
2. The mass copying
was made easy because the paper was set from one guide book only and all
answers were available in the same book.
3. Co-incidentally guide
book is written by the officer stationed at Calcutta so it is presumed that
this guide book might be readily available with candidates.
4. Though guide is
not authorised as a reference book it seems that the centre supervisor has not taken
proper care and because of his negligence the guide book might be available in
the examination hall.
are of the considered opinion that the procedure adopted by the appellants can
not be said to be unfair or arbitrary. It was a reasonable and fair procedure adopted
in the peculiar circumstances of the case. It can not be said to be in breach of
rules of Natural Justice. It must be remembered that rules of Natural Justice
are not embodied rules. They can not be put in a strait-jacket. The purpose of rules
of Natural Justice is to ensure that the order causing civil consequences is not
It is not that in every
case there must be an opportunity of oral hearing. We may notice here the
observations made by this Court in the case of Bihar School Education Board Vs.
Su bhas Chandra Sinha 6 , wherein a similar plea with regard to breach of rules
of Natural 6 (1970 (1) SCC 648) Justice was examined. In this case, the appellant
board had cancelled the examination upon detection of mass copying without
affording the affected candidates the right to be heard.
This Court rejected the
plea of breach of rules of Natural Justice, as follows:- "This is not a
case of any particular individual who is being charged with adoption of unfair means
but of the conduct of all the examinees or at least a vast majority of them at a
particular centre. If it is not a question of charging any one individually with
unfair means but to condemn the examination as ineffective for the purpose it was
held. Must the Board give an opportunity to all the candidates to represent their
cases? We think not.
It was not necessary for
the Board to give an opportunity to the candidates if the examinations as a whole
were being cancelled. The Board had not charged any one with unfair means so that
he could claim to defend himself. The examination was vitiated by adoption of unfair
means on a mass scale. In these circumstances it would be wrong to insist that
the Board must hold a detailed inquiry into the matter and examine each
individual case to satisfy itself which of the candidates had not adopted unfair
means. The examination as a whole had to go." (emphasis supplied)
the present case, there is not even a denial that the answers have been taken from
the guidebook. Mass copying is accepted on the plea that it was permissible to take
books into the examination. This plea was rejected by the Expert Committee, as the
candidates were only allowed to use the books prescribed in the syllabus.
The guidebook used by
the candidates was not permitted to be taken into the examination centre. Given
the fact situation in the present case, the appellant constituted a three members
Committee of high ranking officers to enquire into the matter. Since there is no
provision under the rules with regard to mass copying, the appellants were fully
justified in constituting a Committee to enquire into the matter.
may also make a reference here to the observations made by this Court in the case
of Union of India & Ors. Vs. An and Kumar Pandey & Ors. In this case, the
Railway Recruitment Board, Patna invited applications for selection and recruitment
of various posts of Non-technical Popular categories in the Eastern Railway. The
selection was to be made on the basis of a written examination followed by a
A large number of candidates
appeared in the written test from various centres in the city of Katihar. The respondents
in the appeal had appeared in the written examination and duly qualified. They
had also 7 1994(5) SCC 663 qualified in the viva-voce test and their names were
included in the panel of selected candidates, which was published. On a complaint
of mass copying at Centre No. 115, the Railway Authorities conducted an enquiry
and found the complaint to be correct. The Railway Authorities decided to subject
the 35 candidates, who had qualified the written test from Centre No. 115, to a
The CAT set aside
this decision of the Railway Authorities as being violative of rules of Natural
Justice. It was held that a panel of selected candidates having been prepared
and published, the same could not be cancelled without assigning any reason and
without affording opportunity to the empanelled candidates. On appeal by the
Union of India, this Court set aside the decision of the Tribunal. It was held that
the Tribunal was wholly unjustified in interfering the order of the appellants,
calling on the respondents to sit in the written examination again. In Paragraph
9 of the aforesaid judgment, it is observed as follows:-
"This Court has repeatedly
held that the rules of natural justice cannot be put in a strait-jacket. Applicability
of these rules depends upon the facts and circumstances relating to each particular
given situation. Out of the total candidates who appeared in the written test at
the Centre concerned only 35 candidates qualified the test. In that situation the
action of the railway authorities in directing the 35 candidates of Centre No. 115
to appear in a fresh written examination virtually amounts to cancelling the result
of the said centre.
Although it would have
been fair to call upon all the candidates who appeared from Centre No. 115 to take
the written examination again but in the facts and circumstances of this case no
fault can be found with the action of the railway authorities in calling upon only
35 (empanelled candidates) to take the examination afresh. The purpose of a competitive
examination is to select the most suitable candidates for appointment to public
services. It is entirely different than an examination held by a college or
university to award degrees to the candidates appearing at the examination.
Even if a candidate is
selected he may still be not appointed for a justifiable reason. In the present
case the railway authorities have rightly refused to make appointments on the
basis of the written examination wherein unfair means were adopted by the
candidates. No candidate had been debarred or disqualified from taking the exam.
To make sure that the deserving candidates are selected the respondents have been
asked to go through the process of written examination once again. We are of the
view that there is no violation of the rules of natural justice in any manner
in the facts and circumstances of this case."
noticed earlier, in the present case, the appellants had adopted a very
reasonable and a fair approach. A bonafide enquiry into the fact situation was
conducted by a Committee of high ranking officers of the department. In our opinion,
the High Court was 23 wholly unjustified in interfering with the decision taken
by the appellants in the peculiar circumstances of the case. It is settled
beyond cavil that the decisions taken by the competent authority could be corrected
provided it is established that the decision is so perverse that no sensible
person, who had applied his mind to the question to be decided could have
arrived at it.
principle is based on the ground of irrationality and is known as Wednesbury Principle.
The Court can interfere with a decision, if it is so absurd that no reasonable
authority could have taken such a decision. In our opinion, the procedure adopted
by the appellants can not be said to be suffering from any such irrationality or
unreasonableness, which would have enabled the High Court to interfere with the
is perhaps keeping in mind the aforesaid principles that this Court in the case
of B. Ramanjini & Ors. Vs. St ate of A.P . & Ors. 8, indicated that a
decision taken by the competent authority on the basis of relevant 8 2002(5)
SCC 533 material ought not to be lightly interfered with by the Court in exercise
of its power of judicial review. In Paragraph 8 of the aforesaid judgment, this
Court observed as follows:
if it was not a case of mass copying or leakage of question papers or such other
circumstance, it is clear that in the conduct of the examination, a fair
procedure has to be adopted. Fair procedure would mean that the candidates taking
part in the examination must be capable of competing with each other by fair
means. One cannot have an advantage either by copying or by having a foreknowledge
of the question paper or otherwise.
In such matters wide latitude
should be shown to the Government and the courts should not unduly interfere with
the action taken by the Government which is in possession of the necessary information
and takes action upon the same. The courts ought not to take the action lightly
and interfere with the same particularly when there was some material for the
Government to act one way or the other." (emphasis supplied)
view of these observations, we are of the considered opinion that the High Court
ought not to have interfered with the decision taken by the appellants requiring
the candidates, who appeared in the cancelled examination, to reappear in the subsequent
examination, in order to qualify for regular promotion.
also do not find any merit in the submissions of Mr.Mukherjee that all cases of
unfair means have to be examined on the basis of Rule 18 of Part I of the rules.
The aforesaid rule deals with the situation where a candidate is found or discovered
to be using unfair means in the examination itself.
It is only in these circumstances
that the candidate has to be subjected to disciplinary proceeding which has to be
conducted on the basis of the report submitted under Rule 14(4). Since this is a
case of mass- copying, which was discovered only at the time of the review of
the answer books, Rule 18 would have no relevance.
Rule 14 would not, in
any manner, improve the case of the respondents as it merely enables the disciplinary
authority to impose major penalty on a candidate who is found to have used
unfair means. Merely because no disciplinary proceedings have been initiated against
the respondents, it would not be a justification to hold that the cancellation of
the result is in any manner, impermissible.
are also of the considered opinion that the Division Bench was not justified in
holding that merely because the respondents had been given ad-hoc promotion, the
previous alleged misconduct stands wiped out. The respondents were given equal opportunity
to compete in the examination subsequent to the cancellation of their examination
It is a matter of record
that 42 candidates who were similarly placed took advantage of the order passed
by the CAT on 26th July, 2000 and appeared in the subsequent examination. They
have been promoted in accordance with the rule to the next higher post. The respondents,
however, chose not to appear in the examination. They cannot at this stage be
permitted to complain that they have been treated unfairly.
view of the above, we are of the opinion, that the judgment of the learned
Single Judge and the Division Bench impugned herein are not sustainable. Consequently,
the appeal is allowed and the judgments of the learned Single Judge as well as the
Division Bench are hereby set aside.
[Surinder Singh Nijjar]
[Gyan Sudha Misra]