Union
of India & Ors Vs. O. Chakradhar [2002] Insc 82 (19 February 2002)
G.B.
Pattanaik & Brijesh Kumar Brijesh Kumar, J.
Leave
granted. Heard learned counsel for the parties.
The
appellants, Union of India and others have impugned the judgment and order
dated July 18, 2002 passed by the High Court of Andhra
Pradesh, dismissing their writ petition assailing the order passed by the
Central Administrative Tribunal by which the Tribunal had set aside the
termination of the services of the respondent.
The
Railway Recruitment Board, Bangalore
issued an advertisement notice 4 of 1995 for recruitment to the posts of Junior
Clerk Cum Typist. In pursuance of the selection held, the respondent was
appointed as Junior Clerk cum Typist on 28.6.1996. After about three years of
appointment, a communication dated 21.4.1999 was received by the respondent
from the Railway administration relevant part of which has been quoted in the
order passed by the Central Administrative Tribunal. It is re-produced below:-
"Now it has come to notice of Railway Board that RRB Bangalore has not
subjected the candidates to typewriting test which was an essential recruitment
besides there being certain serious irregularities in the conduct of
examination. The Railway Board after considering the matter totally and taking
into account the report of CBI and serious nature of irregularities in conduct
of selection have decided to cancel the entire panel and to terminate the
services of all the candidates appointed on South Central Railway by giving the
notice as per rules" The service of the respondent was terminated by order
dated 18.8.1999. The respondent preferred a petition before the Central
Administrative Tribunal challenging the order of his termination among other on
the ground that the respondent was not responsible for any kind of irregularity
and in case it was committed by the Railway Recruitment Board he could not be
held responsible for it. It could not be said that each and every selected
candidate was involved in it, if at all. Hence, a decision to terminate the
services of all the appointees or to cancel the selection was bad. The other
ground of challenge is that proper show cause notice should have been
individually issued to each selectee so as to enable him to submit his proper explanation
in respect of the allegations of irregularities, in absence of such a notice
the termination order is bad being in violation of principles of natural
justice.
The
Central Administrative Tribunal while deciding the case held that merely saying
that serious irregularities were committed in conducting the selection or that
typing test was not held, such general allegations could not be enough to take
a decision to cancel the whole selection. It is also observed that the show
cause notice which was issued is silent about any irregularity in the selection
which could be attributable to the applicant. Therefore the show cause notice
was inadequate and incomplete. It has further been observed that the report of
the CBI cannot be the only refuge for cancellation of the selection, but its
contents should have been brought to the knowledge of applicant in a concise
form to enable him to give a proper reply but it was not done by the
administration. Thus in absence of proper notice and opportunity to the candidate,
the order of termination of the applicant stands vitiated. The Tribunal also
observed that the CBI report was also not placed before it. With the above
findings the termination order was set aside providing that proceedings could
be initiated de novo by issuing fresh show cause notice in the light of the
observations made in the judgment.
The
writ petition preferred by the appellant against the order of the Central
Administrative Tribunal was dismissed as indicated earlier. The judgment of the
High Court in the writ petition is also based mainly on the ground of violation
of principles of natural justice and that the notice which was given to the
candidates was vague which amounted to no notice at all.
Hence,
no proper cause could be shown against such a notice.
Shri Mukul
Rohtagi, learned Additional Solicitor General appearing on behalf of the
appellants has placed reliance on a decision reported in 1994 (4) S.C.C. 165
Krishna Yadav versus State of Haryana and on the basis of the same it has been
vehemently urged that in a case where irregularity committed in the process of
selection is all pervasive vitiating the whole selection in that event it would
not be required that each selectee be served with individual show cause notice.
In such circumstances it will be open to cancel the whole selection. Shri P.S. Misra,
learned senior counsel appearing for the respondent has, however, urged that it
was necessary to make known to the respondent appointee about the exact and
precise nature of the irregularity committed as well as misconduct if any
attributable to him so that it could be possible for him to have explained the
position which has otherwise adversely affected the respondent. It is further
submitted that the order of termination is in clear violation of Article 311 of
the Constitution as on the basis of show cause notice as issued, it was
incumbent upon the appellant to hold an enquiry and then alone pass an order of
punishment, not otherwise. It is also submitted that according to the report of
the CBI the beneficiaries of the irregularities could be identified and the
persons against whom action has been recommended are named therein. Name of the
respondent-appointee is not amongst those against whom action has been
recommended. The submission is that only those who got benefit of the
irregularities if any, committed by the Railway Recruitment Board, should have
been issued notices and action could be taken against them. All others,
including the respondent who had nothing to do with any kind of irregularity
and who have been selected on their own merit , their services were not liable
to be terminated.
Before
we proceed further, it will be appropriate to peruse the decisions relied upon
by the parties. In the case of Krishna Yadav (supra), the allegations of
favoritism and arbitrariness in holding the selection for the post of Taxation
Inspectors by Subordinate Selection Board were made. Those candidates whose
performance was excellent were not selected.
An
inquiry was ordered by the Supreme Court to be held by the CBI. The report
revealed acts of favoritism, selection without interview even on the basis of
fake or ghost interview, tampering with the records and fabrication of
documents etc.
In
such circumstances it was held that entire selection was vitiated even in
respect of those who had already been appointed and had been working for a past
few years. It was further observed individual cases of innocence have no
relevance in such circumstances. So far the respondent is concerned, reliance
has been placed on a decision reported in 1986 (3) S.C.C. 229 Kashi Nath Dikshita
versus Union of India and others on the proposition that a case where
reasonable opportunity of hearing is denied to a delinquent, it vitiates the
inquiry and renders the order of punishment invalid. There cannot be any doubt
about the proposition of law as propounded in the above noted case. Reasonable
and adequate opportunity of hearing has always to be provided to a delinquent
officer against whom disciplinary proceedings have been initiated by the
Department. The case however, pertains to an inquiry against an individual
officer based on allegations of misconduct on his part. Another case to which
our attention has been drawn is reported in 1991 (1) S.C.C. 662 Mohinder Sain Garg
Versus State of Punjab and others. In this case 1200 candidates were called for
the interview; for filling up 54 posts.
It was
not though a proper course but held that it would not vitiate the selection,
more particularly when it could not be said to be tainted with mala fide or ill
motive. It was also held that allocation of 25% of total marks for viva voce
test was excessive and the selection was found to have been vitiated but it was
found that whole selection was not necessary to be cancelled as those who had
joined long before in pursuance to such a selection had not been impleaded as
parties before the High Court and also in view of the fact that unsuccessful
candidates who had chances of being selected if the marks allocated for the
viva voce test had been reduced, were directed to be appointed to the posts
which were kept vacant for them by means of interim orders of the Court.
In our
view the nature and the extent of illegalities and irregularities committed in
conducting a selection will have to be scrutinized in each case so as to come
to a conclusion about future course of action to be adopted in the matter. If
the mischief played is no widespread and all pervasive, affecting the result,
so as to make it difficult to pick out the persons who have been unlawfully
benefited or wrongfully deprived of their selection, in such cases it will
neither be possible nor necessary to issue individual show cause notices to
each selectee. The only way out would be to cancel the whole selection. Motive
behind the irregularities committed also has its relevance.
The
copy of the report of the CBI has been made available to the Court by the
learned Additional Solicitor General and the same was served upon learned
counsel for the respondent earlier. To find out the position in the present
case, we may have to scrutinize the report of the CBI.
It
first indicates that Railway Recruitment Board, Bangalore has not laid down any set procedure for holding of
selection. The Chairman engages a printer for printing of the question paper
and computer firms are given the job of scrutinizing the applications. The
examination is conducted at different centres and answer-sheets are sealed and
put in boxes in custody of the Chairman in his room. The answer-sheets are
given to the computer firm for evaluation. The Board carries on a manual random
check of the answer-sheets, and depending upon the result, further call letters
are prepared by the computer firm. Since it was a recruitment for the post of
Junior Clerk-cum-Typist, a candidate was required to have a typing speed of 30
words per minute in English or 25 words per minute in Hindi. As per relevant
Circular the typing test is to be conducted after the written test and those
who qualify in the typing test also, they alone are to be called for final
interview.
In the
present case, however, according to the report the candidates during the course
of their personal interview were required to give typing test before the
members of the Interview Board within the time limit set for the purpose. No
separate marks were awarded for typing nor the typing sheets have been
preserved by the Board. No candidate was qualified or disqualified on the basis
of the typing test. About 100 answer-sheets did not bear the signatures of
Supervisor/Assistant Supervisor in the column provided for the purpose. It
however, bore the signatures of the invigelator but none from the said
candidates is reported to be selected.
According
to the report, on scrutiny of answer-sheets of 109 selected candidates, a clear
difference of hand-writing was noticed in many answer-sheets. Out of these
answer-sheets 14 were particularly taken out for the purpose of investigation.
According
to the report, answer-sheet packets were stealthily opened and the answers were
filled up in the blank space left by the examinees. This happened during the
period the bags of the answer-sheets were in the custody of the Chairman. So
far as the interview is concerned, it is reported that the two Boards
constituted for the interview did not have technical personnel as its member as
per requirement. Each member was required to award marks to the candidate in
the individual assessment sheets provided to them and ;average was to be worked
out but no average was worked out. The column for interview marks was later on
filled up as per wishes of the Chairman and Member-Secretary of the Board and
signatures of the non official members were obtained on the summary sheet later
on.
It is
mentioned in the report that huge amount of money was taken for selecting the candidates
but none is coming forward to indicate as to who and how much one paid for it
for fear of being in trouble. It is further reported that non official Chairman
of the Board made payment of printing of the examination paper etc. not to any
firm but to one Gaja Raja Yadav. It may also be mentioned that according to the
report a large number of applications were missing and postal orders of the
missing applications were encashed and misappropriated and even before the
closing date of receiving the applications, it started sending applications to
the computer firm for their scrutiny. The C.B.I. has named five persons as
accused in the report namely the Chairman of the Railway Recruitment Board,
Bangalore, who is a non-official, the Member-Secretary of the Board, an officer
of the Railways, one Shri Hanumanth Bhaiya, a Senior Clerk of the Railway
Recruitment Board and Gaja Raja Yadav, the private person to whom payment had
been made for printing of the question paper etc.
As per
the report of the CBI whole selection smacks of mala fide and arbitrariness.
All norms are said to have been violated with impunity at each stage viz. right
from the stage of entertaining applications, with answer-sheets while in the
custody of Chairman, in holding typing test, in interview and in the end while
preparing final result. In such circumstances it may not be possible to pick
out or choose any few persons in respect of whom alone the selection could be
cancelled and their services in pursuance thereof could be terminated. The
illegality and irregularity are so inter-mixed with the whole process of the
selection that it becomes impossible to sort out right from the wrong or vice
versa. The result of such a selection cannot be relied or acted upon. It is not
a case where a question of misconduct on the part of a candidate is to be gone
into but a case where those who conducted the selection have rendered it wholly
unacceptable. Guilt of those who have been selected is not the question under
consideration but the question is could such selection be acted upon in the
matter of public employment? We are therefore of the view that it is not one of
those cases where it may have been possible to issue any individual notice of
misconduct to each selectee and seek his explanation in regard to the large
scale widespread and all pervasive illegalities and irregularities committed by
those who conducted the selection which may of course possibly be for the
benefit of those who have been selected but there may be a few who may have
deserved selection otherwise but it is difficult to separate the cases of some
of the candidates from the rest even if there may be some. The decision in the
case of Krishna Yadav (supra) applies to the facts of the present case.
The
Railway Board's decision to cancel the selection cannot be faulted with. The appeal
therefore deserve to be allowed.
In the
result, the appeal is allowed and the orders passed by the Tribunal and the
High Court are set aside and the order of termination of the services of the
respondent is upheld.
The
copy of the CBI report has been placed on record.
The
administration shall do well in taking action pursuing the matter in the light
of the report of the CBI, so as to bring it to a logical conclusion.
There
would be no order as to costs.
---------------------J.
(G.B. Pattanaik)
--------------------J.
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