Inderpreet
Singh Kahlon & Ors Vs. State of Punjab & Ors [2006] Insc 274 (3 May 2006)
Dalveer
Bhandari
[WITH
C.A. No. 3422/2005, 3410/2005, 3409/2005,
3405-3408/2005, 3456-3459/2005, 3446-3447/2005, 3402/2005, 3449-3455/2005,
3463-3464/2005, 3460/2005, 3401/2005, 3445/2005, 3399/2005, 3404/2005,
3444/2005, 3441/2005, 3439/2005, 3428- 3436/2005, 3440/2005, 3438/2005,
3442/2005, 3437/2005, 3403/2005, 3427/2005, 3461/2005, 3400/2005, 3477/2005,
3475/2005, W.P. (C) No. 14/2004, C.A.
No. 3423/2005, 3448/2005, 3472- 3474/2005, 3489/2005 and 3491/2005] DALVEER
BHANDARI, J.
I had
the benefit of reading the erudite judgment of my learned brother Justice Sinha.
I concur with the conclusions and findings arrived at by him on all the issues
except on the issue of propriety of hearing of the matter by the judges (who
were on the Committee), after the appellants gave clear consent to the hearing
of cases by the full bench even before the commencement of the hearing of
cases. I would therefore, like to write a separate judgment.
These
appeals emanate from a Full Bench judgment of Punjab and Haryana High Court in Civil Writ Petition No. 8421 of
2002 along with other connected matters.
The
founding fathers of the Constitution perhaps, in their wildest dreams, could
not have visualized that the people who are expected to strictly adhere to the
constitutional values and guide the destiny of the Nation, in times to come
would malign and denigrate the system to such an extent that for his grave
misdeeds, the constitutional authority itself, in the larger public interest
would be required to be put behind the bars.
The
Chairman of the Punjab Public Service Commission is an important constitutional
authority.
This
case relates to a period when one Ravinderpal Singh Sidhu (in short, R.S. Sidhu)
was the Chairman of the Punjab Public Service Commission (hereinafter called
the Commission) from September 1996 to 21.3.2002. His clandestine activities
and misdeeds reached the pinnacle of disgrace, ignominy, dishonour, degradation
and humiliation.
Perhaps,
no one could have polluted the entire system in a greater measure. On 25.3.2002
an FIR was registered at Police Station, Mohali under section 7 read with
section 13(2) of the Prevention of Corruption Act, 1988 in relation to the trap
organized in which R.S. Sidhu was caught red-handed accepting a bribe of Rs. 5 lakhs.
The
statement of one of the accused Jagman Singh (who later turned as an approver)
was recorded under Section 164 CrPC on 24.1.2002 and 24.4.2002. In three days
from 17.4.2002 to 19.4.2002, more than Rs. 16 crores were recovered from the
lockers and the bank accounts of the relations of R.S. Sidhu. According to the
State, a total cash amount, securities and properties worth about Rs. 22 crores
were recovered. Out of the said amount, a sum of Rs. 1.28 crores was recovered
from the house of Jagman Singh. In the history of this country, there may not
have been many cases of the Prevention of Corruption Act of this magnitude,
where such huge amounts were recovered. All this amount was collected by R.S.Sidhu
in lieu of ensuring recruitment/appointments to various offices of the PCS
(Executive Branch), allied services and PCS (Judicial Branch) in the State of Punjab from the prospective candidates.
This
unfortunate episode teaches us an important lesson that before appointing the
constitutional authorities, there should be a thorough and meticulous inquiry
and scrutiny regarding their antecedents. Integrity and merit have to be
properly considered and evaluated in the appointments to such high positions.
It is an urgent need of the hour that in such appointments absolute
transparency is required to be maintained and demonstrated. The impact of the
deeds and misdeeds of the constitutional authorities (who are highly placed)
affect a very large number of people for a very long time, therefore, it is
absolutely imperative that only people of high integrity, merit, rectitude and
honesty are appointed to these constitutional positions.
The
following vacancies which arose during the tenure of R.S. Sidhu as Chairman of
the Punjab Public Service Commission are under challenge.
On the
Administrative side the following vacancies arose:
Class
I: Direct Recruits: 28 vacancies Class II (allied etc): Direct Recruits: 63
vacancies Class I: Nominated: 18 vacancies Total 109 Similarly, on the Judicial
Side the following vacancies arose:
Class
I for 1998 vacancies: 21 Class I for 1999 vacancies : 14 Class I for 2000
vacancies: 8 Class I for 2001 vacancies: 21 Total 64 "By an advertisement
issued in February, 1998, the Commission invited applications for recruitment
against 28 vacancies in PCS (Executive branch) and 63 vacancies in Allied
Services. In all, 13094 candidates appeared in the preliminary examination held
on 29.3.1998. Out of them, 1097 candidates were declared successful. The main
written examination was held between 2.7.1998 and 2.8.1998 and the result was
declared on 25.1.1999. 273 candidates were called for interview which were held
between 20.4.1999 and 22.6.1999. The final result was declared on 11.7.1999 and
the successful candidates were appointed to PCS (Executive branch) and Allied
Services in September, 1999 and thereafter.
Recruitment
to PCS (Executive Branch) by nomination made in terms of Rules 8 to 11 and 15
of the Punjab Civil Service (Executive Branch (Class-I) Rules, 1976 (for short,
the 1976 Rules' For the year 1994:
There
were three vacancies for Register A-I which were to be filled from amongst Tehsildars/Naib
Tehsildars. There were two vacancies for Register A-II which were to be filled
from amongst Civil Secretariat Ministerial Staff. There was one vacancy for
Register A-III which was to be filled from amongst the Excise and Taxation
Officers/Block Development Officers/District Development and Panchayat
Officers. There was one vacancy for Register 'C' which was to be filled from
amongst the officers/officials working in subordinate offices.
Interviews
for selection for the vacancies to be filled from the four registers were held
on 6.4.1999, 28.7.1999 and 29.7.1999, 4.1.1999 and 7.4.1999 respectively.
For
the year 1996: There were five vacancies for Register A-I. There was no vacancy
for Register A-II. There were two vacancies for Register A-III and there were
three vacancies for Register 'C'. Interviews for selection for appointment to
Register A-I were held on 26.5.1999. Interviews for selection for appointment
to Register A-III from amongst District Development and Panchayat Officers were
held on 29.5.1999.
For
selection from amongst Excise and Taxation Officers, interviews were held on
29.6.1999. For Register 'C', interviews were held on 4.6.1999 and 7.6.1999.
PCS
(Judicial Branch) made in terms of Punjab Civil Service (Judicial Branch)
Rules, 1951 (for short, 'the 1951 Rules') In all, four selections were made for
recruitment to PCS (Judicial Branch) during the tenure of R.S. Sidhu as
Chairman of the Commission. The details of the vacancies for which the
selections were made are as under:
Year
Number of vacancies 1998 21 1999 14 2000 8 2001 21 The candidates selected on
the recommendations made by the Commission except those recommended in 2001
were appointed to the service after obtaining approval of the High Court on
administrative side." It may be pertinent to mention that two FIRs were
registered. FIR No. 7 was registered at Police Station, Mohali under Section 7
read with Section 13(2) of the Prevention of Corruption Act, 1988 on 25.3.2002
and the FIR No. 24 was registered on 30.4.2002 against R.S. Sidhu and Pritpal
Singh, the then Secretary of the Commission in the context of large scale fraud
committed in the selections made by the Commission. On the basis of the
material on record, it is revealed that a number of candidates paid money to
R.S. Sidhu for ensuring selections in the examination and appointment to the
PCS (Executive Branch), Allied Services and PCS (Judicial Branch) and in the
raids, as mentioned earlier, a huge amount of money was recovered.
The
Vigilance Bureau highlighted the following irregularities committed by the
Commission at the behest of the then Chairman:
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"The
screening of answer sheets of competitive examinations reveals that the favoured
and tainted candidates were helped in written tests in one way or another. For
instance some selective candidates were helped by giving question papers one
night before the date of examinations and if the candidates could not perform
well in the written examination, the examiners were asked to give maximum marks
to the favoured candidates, irrespective of the matter contained in the answer
sheets and the hand writing being not legible.
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The interview
marks were tailored to help the favoured and tainted candidates. This was the
main criterion used by the Chairman of the Commission for selection of desired
candidates.
During
the investigation of the case, this factor has emerged very clearly and there
is a strong evidence in the case file. The favoured candidates have been given
marks in the interview and the candidates coming in the way of favoured
candidates have been given less marks in the interview to keep them way down in
the merit list.
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While pursuing
the list of candidates who were interviewed by the Chairman and the Members,
the most astonishing feature is that in more than 95% cases, Chairman and the
Members have allotted similar marks to the candidates after interview which is
impossible as all the Members and the Chairman were supposed to test the
capability of the candidates in their individual capacities. It could never
have been a consensus gradation.
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In many of the
selections there was a one Member Board.
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The procedure
for calling experts, paper setting and paper setters, examiners (Markers etc.)
were exclusively in the hands of the Chairman as reported by the Secretary,
Punjab Service Commission and no such record is available in the Commission,
whereas such record can only be destroyed after a lapse of 5 years as per
instructions of the PPSC.
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The selections,
which are not based on the competitive examination, are based on pass marks
(percentage of basic degree + interview marks). The procedure is such that the
difference in pass marks can be easily covered by interview marks. For example,
if 3 candidates have 50%, 60% and 70% marks in Graduation, their base marks
(40% of the percentage in basic degree) will be 20, 24 and 28 respectively. The
marks allotted for interview can easily cover the gap of 8 marks between the
candidates getting the lowest and highest base marks.
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In some cases
the interview marks are out of range of grade marks. For example, B+ (26 to 30)
grade is given by the expert but the Board gave him/her 32 marks. This
irregularity may be due to clerical mistake committed by the PPSC staff and is
therefore being verified.
-
There is some
evidence on the file that expert(s) was/were asked to be selective." On
consideration of the entire material placed before it, the State Government
decided to cancel the entire selection made for recruitment of PCS (Executive
Branch) and Allied Services in 1998. Consequently, a general order dated
24.8.2002 was issued terminating the services of the appellants.
Regarding
Judicial Officers appointed to PCS (Judicial Branch), the High Court
constituted a sub-committee of five Judges to scrutinize the record of
selection. After going through the answer sheets of the candidates, who were
selected on the basis of examinations held for recruitment against the
vacancies in the years 1999, 2000 and 2001, the sub-committee submitted a
report dated 30.5.2002 with the observation that, interpolations and cuttings
were made in the marks awarded to some of the candidates and their marks were
increased and that the assessment made by the examiners was far from fair. The
report of the sub-committee was accepted by the Full Bench of the High Court
and a recommendation was made to the government to terminate the services of
those who were appointed on the basis of the selections made during the tenure
of R.S. Sidhu. On a reference made by the State Government, the second sub-
committee examined the answer sheets of some of those who were selected as well
as the answer sheets of those who were not selected and observed that a
deliberate attempt had been made to give higher marks to some undeserving
candidates and at the same time, lower marks were awarded to more meritorious
candidates. The report submitted by the second sub-committee was also approved
by the Full Court. On the recommendations made by the
High Court, the State Government terminated the services of those who were
appointed on the basis of the selections made by the Commission against the
vacancies of the years 1998, 1999 and 2000.
All
the appointments were terminated on the recommendations of the High Court on
27.9.2002. Similarly, the appointments of nominated Executive Class I Officers
were terminated by order dated 23.5.2002.
These
appellants have filed a number of writ petitions before the Punjab & Haryana
High Court which were dismissed by the impugned judgment of the Full Bench
being devoid of any merit.
These
appellants, being aggrieved by the said judgment of the Full Bench, have now
approached this Court by filing these special leave petitions. After hearing
all concerned, this Court granted special leave petitions and these appeals
have now been placed for final disposal before this Court.
Mr. Rajiv
Dhawan, learned Senior Advocate and a large number of counsel have appeared on
behalf of the appellants.
Submissions
made by the appellants are summarized as under:
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The appellants
have challenged the impugned order mainly on the grounds of violation of
articles 14, 21 and 311 of the Constitution and the breach of the principles of
natural justice.
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Some of the
appellants have submitted that they had completed 3 years probation and
according to Rule 23 of the 1976 Rules they were deemed to have been confirmed
in their services and their services could not be terminated without holding
regular enquiry in accordance with the Punjab Civil Services (Punishment and
Appeal) Rules, 1970 (for short, 'the 1970 Rules') read with Article 311 of the
Constitution of India and, in any case, Rule 23 could not have been invoked for
dispensing with their services because their work, conduct and performance had
remained satisfactory during the period of probation.
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The appellants
have also submitted that both the Vigilance Bureau and the Chief Secretary had
decided the issue of mass dismissal orders in less than 24 hours without proper
application of mind. It was also submitted that the Screening Committee of 2004
showed that an exercise separating tainted from the non-tainted candidates
could be done in two or three months. It was submitted that the decision of
mass dismissal was passed on insufficient material and without application of
mind.
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Some of the
appellants have submitted that their academic records are very good and they
were selected to PCS (Executive Branch) and/or Allied Services and PCS
(Judicial Branch) on the basis of their academic records and their good
performance in the examinations held and they have nothing to do with the
illegalities, irregularities committed by R.S. Sidhu during his tenure as the
Chairman of the Punjab Public Service Commission and, therefore, their
appointments should not be disturbed.
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Those appointed
to PCS (Executive Branch) from Registers A-I, A-II, A-III and 'C' have averred
that they were selected on the basis of their outstanding service record and
the taint, if any, attached to the selections made for appointment by the
direct recruitment cannot affect their selections. The candidates belonging to
the reserved categories of Scheduled Castes, Backward Classes, Ex- servicemen,
Freedom Fighters and Handicapped have averred that they have nothing to do with
the selections made by R.S. Sidhu by taking bribe from the candidates or on
account of "Sifarish" and their services could not have been
terminated on the basis of the reports of the Vigilance Bureau.
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The appellants
have also challenged that there is no definite or specific material available
with the State Government on the basis of which it could form a bonafide
opinion that selections were tainted and the reports prepared by the Vigilance
Bureau could not be relied upon for terminating their services because the same
were entirely based on the statement of approvers recorded under Section 164 of
the Code of Criminal Procedure.
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It has also been
submitted that the criminal investigations were in relation to the Chairman,
PPSC without shedding light on nominated candidates. Even without getting the
interview details of nominated candidates the Vigilance Bureau treated this as
a case of mass corruption on 21.5.2002. This action was clearly arbitrary and
wholly untenable.
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The appellants
submitted that there was no material before the Committee on the basis of which
the drastic order of cancelling the selections of three batches comprising of
39 judicial officers could be made. It was further submitted that the
examination of material including answer-sheets of selected/non-selected
candidates, statements of approvers under Section 164 of the Code of Criminal
Procedure was done only in context of 1998 batch on its back reference from the
State Government.
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The appellants
further submitted that the Full Bench of the High Court lost sight of the fact
that there were four separate batches in which four separate sitting High Court
judges participated as experts whose opinion was binding under Rule 4 of Part C
of the PCS (JB) Rules, 1951. There was no allegation of any impropriety
committed by the experts of the Interview Board.
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The appellants
also submitted that the fact finding enquiry which came to the conclusion that
the findings of misconduct on the basis of which the services of the appellants
were terminated was conducted behind the back of the appellants. They were
neither associated with the enquiry nor was any material supplied to them
before or after the termination, to enable them from effectively rebutting the
findings. The appellants were only permitted to examine their own answer-sheets
in which no cutting/overwriting/ irregularity was found.
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According to the
appellants, the High Court erroneously proceeded on the administrative side to
presume that the mere irregularity in 7 papers of 2001 batch meant irregularity
of the entire batch. On the basis of this presumption another presumption was
raised that there were irregularities in all the four batches from 1998 to 2001.
In the case of other selections held by the PPSC under the Chairmanship of R.S.
Sidhu, the Government had undertaken to constitute two separate committees
which had gone into the record of over 3,500 candidates to ascertain the
presence of any taint or otherwise.
In the
present case, it was not impractical or impossible to have conducted this
exercise for the serving judicial officers who were only 39 in number.
According to the appellants, the action of cancelling was taken in extreme
haste and without any logical basis.
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The appellants
submitted that it was incumbent upon the State Government to establish from the
records that prior to 23.5.2002 it had examined all the selections made during
the tenure of R.S. Sidhu and it was after such a detailed consideration that it
became apparent that the taint was only in respect of the selections in the
year 1998 which would necessitate the extremely harsh and punitive decision to
terminate en masse selections of all the candidates on the ground that the
entire selection process was vitiated.
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The appellants
submitted that the selections were vitiated because, according to the
respondents, Mr. Sidhu employed corrupt methods in the selection process of the
candidates. From this criterion or yardstick, all the 3,446 selections made
during the tenure of R.S. Sidhu would stand 'tainted' and the services of all
these candidates are also liable to be terminated.
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The appellants
submitted that it was not a case of large scale irregularities where it was
impossible to separate the tainted candidates from the non-tainted candidates.
The test for determining whether a set of facts qualifies to be a case of large
scale irregularities sustaining a decision to cancel the entire selection was
aptly stated by this Court in the case of Union of India v. Rajesh P.U. (2003)
7 SCC 285 in the following words :
"In
the light of the above and in the absence of any specific or categorical
finding supported by any concrete and relevant material that widespread
infirmities of an all-pervasive nature, which could be really said to have
undermined the very process itself in its entirety or as a whole and it was
impossible to weed out the beneficiaries of one or the other irregularities, or
illegalities, if any, there was hardly any justification in law to deny
appointment to the other selected candidates whose selections were not found to
be, in any manner, vitiated for any one or the other reasons. Applying a
unilaterally rigid and arbitrary standard to cancel the entirety of the
selections despite the firm and positive information that except 31 of such
selected candidates, no infirmity could be found with reference to others, is
nothing but total disregard of relevancies and allowing to be carried away by
irrelevancies, giving a complete go-by to contextual considerations throwing to
the winds the principle of proportionality in going farther than what was
strictly and reasonably to meet the situation. In short, the competent
authority completely misdirected itself in taking such an extreme and
unreasonable decision of cancelling the entire selections, wholly unwarranted
and unnecessary even on the factual situation found too, and totally in excess
of the nature and gravity of what was at stake, thereby virtually rendering
such decision to be irrational." It is the sacred duty of the Court to
sift the grain from the chaff. The expression "public interest" or
"probity in governance" cannot be put in a strait-jacket.
"Public interest" takes into its fold several factors. There cannot
be any hard- and-fast rule to determine what is public interest. The
circumstances in each case would determine whether the action was taken in
public interest or was taken to uphold probity in governance.
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The appellants
submitted that where there are imputations against a key decision maker or a
key decision, every decision made by such decision maker during his period of
office is not necessarily tainted and to be set aside. In fact, the correct
approach is to investigate the issues thoroughly and to weed out the tainted
decisions from the ones that are not.
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The impugned
order of termination is also stigmatic. The order ostensibly discharged the
appellants during the period of probation but the order of discharge in fact
was because of serious allegations of corruption which appeared in the press
against the entire batch. If the veil is lifted it will be seen that the only
reason why the appellants's services have been terminated is the so called
misconduct attributed to the entire batch. Under these circumstances, since the
order is stigmatic in nature the same could not have been passed without
conducting an enquiry and giving the appellants an opportunity of explaining
their position. The order is, therefore, liable to be quashed.
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The passing of
such an order at this stage of a person's career has serious consequences in
the entire course of the individual's life. Today, the appellants would have to
suffer a big stigma of having been dismissed from the service on account of
their being a part of so called tainted batch.
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The appellants
submitted that they have spent three best years of their lives taking the
departmental examinations and serving the State. Therefore, it is totally
arbitrary and illegal on the part of the State Government to throw the
appellants out of job at this stage unceremoniously. The order is totally
arbitrary and liable to be quashed on this ground.
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The order of
termination is in clear violation of Rule 17 of the PCS (EB) (Class 1) Rules
1976 which stipulates thus "the Govt. may at any time, for reasons to be
recorded in writing, remove the name of any person from any register of
accepted candidates; provided that before taking such action the person
concerned will be given an opportunity against the action so proposed".
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The entire case
of the respondent State is based on the report of investigation made by the
Vigilance Department, which is primarily based upon the statement of the tout
turned approver and the matter is still sub-judice before the learned Trial
Court, hence there is no veracity of these statements or reports in law and can
never be the basis of termination of services. The report and the challan have
been presented by the Vigilance Department in the months of July and August
2002 whereas, the impugned order of termination was passed on 23.5.02.
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That the
allegation of pushing up the unmeritorious candidates with a purpose to
facilitate their selections by awarding them more marks in the interview is not
substantiated by the fact that a large number of candidates who are not named
in the FIR have also got very high/low marks. The suggestion of the State
Government would in fact amount to a proposition, that marks in the interview
are linked with the academic record of the candidate and any discrepancy in the
same would give rise to suspicion of taint.
If
this was so then the entire objective of conducting an interview is lost. An
interview is included in the selection process so as to evaluate the
personality, leadership quality and ability to be a good administrator by the
Selection Board.
It is
not uncommon where academically sound candidates may prove to be bad
administrators due to lack of the above mentioned qualities. Thus, in case the
argument of the State is to be accepted, possibly no selection can hold good
and taint can be read into practically any selection process.
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Reliance has
also been placed on the case of Union of India v. Rajesh P.U., Puthuvalnikathu
[(2003) 7 SCC 285]. In this case, applications were invited for filling up 134
posts of Constables by the Central Bureau of Investigation.
The
selection process consisted of a written examination and an interview followed
by a physical fitness test. However, the selected candidates including the
respondent were informed that the selection list had been cancelled by the
Special Committee constituted to enquire into the allegations of favouritism
and nepotism on the part of the officers in conducting the Physical Efficiency
Test and irregularities committed during the written exam. The respondent
approached the High Court after his application was dismissed by the Central
Administrative Tribunal. The Division Bench after perusal of the Committee's
report and review of the entire process categorically rejected allegations of
nepotism/favourtism and came to the conclusion that there was no justification
to cancel the entire selection when the impact of irregularities which crept
into evaluation on merits could be identified specifically and was found, on a
reconsideration of the entire records, to have resulted in about 31 specific
number of candidates being selected undeservedly to the detriment of similar
such number of candidates.
Repelling
the plea that a person in the select list has no vested right to get appointed
and finding the cancellation of the entire selection arbitrary and
unreasonable, the High Court allowed the writ petition.
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An appeal was
preferred to this Court. This Court observed that applying a unilaterally rigid
and arbitrary standard to cancel the entirety of the selections despite the
firm and positive information that except 31 of such selected candidates, no
infirmity could be found with reference to others, is nothing but total
disregard of relevancies and allowing to be carried away by irrelevancies,
giving a complete go-by to contextual considerations throwing to the winds the
principle of proportionality in going farther than what was strictly and
reasonably required to meet the situation. In short, the competent authority
completely misdirected itself in taking such an extreme and unreasonable decision
of cancelling the entire selections, which was wholly unwarranted and
unnecessary. This Court also observed that the High Court had adopted a
practical, pragmatic, rational and realistic solution to the problem and the
appeal filed by the Union of India was consequently dismissed.
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The appellants
have also submitted that nominated candidates were entitled to protection under
Article 311. The appellants have also placed reliance on a large number of
judgments of this Court which indicated that probationers who have crossed the
maximum period of probation were deemed to be confirmed.
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The appellants
have also submitted that there is a clear difference between the proven case of
mass cheating for an examination and an unproven imputed charge of corruption
where the appointment of the civil servant is involved.
In Anamika
Mishra v. U.P.P.S.C. [(1990) Supp. SCC 692], this Court observed that when no
defect was pointed out in regard to the written examination and the sole
objection was confined to exclusion of a group of successful candidates in the
written examination from the interview, there was no justification for cancelling
the written part of the recruitment examination. On the other hand, the
situation could have been appropriately met by setting aside the recruitment
and asking for a fresh interview of all eligible candidates on the basis of the
written examination and select those who on the basis of the written and the
freshly-held interview became eligible for selection.
In
S.P. Biswas v. State Bank of India [1991
Supp (2) SCC 354], there were allegations of unfair means adopted in the
examination. The Bank got the enquiry conducted and steps were taken to exclude
the possibility of results being affected by unfair means. This Court approved
the decision of the High Court and observed that the relevant records disclosed
that an honest attempt was made on the part of the management of the Bank to
examine all the points raised in the report and otherwise, and in cases where
an element of use of unfair means was found, a necessary action was taken.
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The appellants
also submitted that, in the instant case, the decisions were collegiate
decisions by a number of people and those decisions could not be set aside
because of the allegations against the Chairman of the Commission. It was
submitted that this is not a mass cheating case but a mass dismissal case based
on mere allegations. It was submitted that for cause on imputations of
corruption even though the order of 23.5.2002 is "finally a dismissal simpliciter".
The various cases of dismissals are based on proper investigation or proven
illegality, not mass dismissals based merely on conjectures. It was also
submitted that the officers of 1999 were targeted where others of the period
1996- 2002 were given a total go-by.
Reliance
has been placed on Onkar Lal Bajaj v. Union of India [(2003) 2 SCC 673]. This
Court, in the said case, on the basis of news item appeared in the Indian
Express, making allegation of political patronage in allotment of retail outlets
of petroleum products, LPG distributorships and SKO-LDO dealerships examined
the entire case. As a result of media exposure the Government in public
interest decided to cancel all the allotments. This Court examined the matter
in great detail and observed as to how could all the large number of candidates
against whom there was not even insinuation be clubbed with the handful of
those who were said to have been allotted these dealerships/distributorships on
account of political connections and patronage? The Court stated that the two
were clearly unequals. Rotten apples cannot be equated with good apples. Under
these circumstances, the plea of probity in governance or fair play in action
motivating the impugned action cannot be accepted. The impugned order from any
angle cannot stand the scrutiny of law. This Court observed that the solution
by resorting to cancellation of all was worse than the problem. Cure was worse
than the disease. Equal treatment to unequals is nothing but inequality. To put
both the categories, tainted and the rest, on par is wholly unjustified,
arbitrary and unconstitutional being violative of Article 14 of the
Constitution. This Court also observed that the Government instead of
fulfilling the duty and obligation, cannot unjustly resort to cancellation of
all the allotments en masse by treating unequals as equals without even prima
facie examining any case exposed by the media. If a hue and cry is made that
certain allotments have been made to the sitting members of Parliament or their
wives or members of legislature or their relations, the public, media and the
Opposition would be justified in raising eyebrows.
Faced
with this situation, the Court appointed a Committee of a retired Judge of this
Court along with a retired Judge of Delhi High Court to examine all 413 cases.
This Court observed that if a Committee, on preliminary examination of facts
and records, formed an opinion that the allotment was made on merit and not as
a result of political connections or patronage or other extraneous
considerations, it would be open to the Committee not to proceed with the probe
in detail.
If
such large scale matters from all over the country were directed to be
reexamined why cannot a small number of cases of one State be scrutinized? Mr. Rakesh
Dwivedi, learned counsel appearing for the State of Punjab submitted that the government can
set aside the selections if there is some material which is sufficient to come
to a conclusion that corruption and manipulation have pervasively influenced the
selection process. He also submitted that the Courts do not sit in appeal and
would give wide latitude to the Government with regard to adjudging the
fairness of selections. The Courts would be slow at interfering with such
decisions of the government. He submitted that probity of public services can
only be maintained through fair selection where merit is judged on the basis of
capability, whether in the written examination or in the interview. It is the
constitutional duty of the Commission and the State Government to ensure that
the selections are fair and free of corruption and manipulations.
He
also submitted that while taking the decision to cancel a selection no stigma
is attached to the candidates who are affected as there was no individual charge
against them. It is the selection process which is condemned. He submitted that
the Government is not required to establish beyond reasonable doubt that there
was corruption and manipulation.
It is
entitled to judge on the basis of probabilities and ordinary course of human
conduct and the real possibility of the selections being entirely effected by
the likelihood of bias of the Chairman of the Commission who was completely
managing the examinations. According to him, it was not possible to separate the
tainted candidates from the non-tainted candidates. He submitted that the
selection process is found to be vitiated pervasively that all the appointments
made on the basis of such selection would be null and void as an issue.
He
submitted that, therefore, the State Government was justified in terminating
the services of the appellants.
Mr.
P.P. Rao, learned senior counsel appearing for the High Court submitted that
the selection of judicial officers is believed to be contaminated at source,
having regard to the nature of judicial posts, the High Court had to take
appropriate remedial measures to restore the credibility of recruitment and to
safeguard the independence of judiciary.
The
High Court acted after being satisfied prima facie on the basis of the reports
of the Committees of Judges that all the four selections were vitiated. In the
circumstances, the cancellation of selections/appointments and directing a
fresh selection was just, fair and reasonable. He submitted that this is a case
of condemnation of all four selections made but not of the candidates selected.
In such a case, the rule of audi alteram partem will not be attracted. He
submitted that appointments made on the basis of condemned selections are void ab
initio. He submitted that, therefore, the appointees cannot be regarded as
lawful holders of the offices.
He
also submitted that it is well settled that justice should not only be done but
also seen to be done. The same principle applies to the judicial appointments
as well, as the Judiciary survives on its credibility. Selection of judicial
officers should not only be fair but also be seen to be transparent, free from
any taint or suspicion to retain public confidence. He further submitted that
it is not open to allege bias on the part of the two Judges who were on the
Committee, having consented to their hearing the matter.
No
such plea was raised before the High Court in the writ petitions. In any event,
without impleading the Judges concerned by name, the plea of bias cannot be
urged. He placed reliance on the cases of Dr. G. Sarana v. University of Lucknow [(1976) 3 SCC 585], AShok Kumar Yadav v. State of Haryana [(1985) Supp. 1 SCR 657] and State
of Maharashtra v. R.S. Nayak [(1982) 2 SCC 463].
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 executive and judicial officers? 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.
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.
It may
be pertinent to mention that during the said period there has been no
allegation regarding the integrity or efficiency of these officers.
The
facts of this case reveal that the material supplied to the Committee having
regard to the facts that majority of the officers named in the FIR belonged to
2001 batch, the respondents not only cancelled the entire selection of 2001
batch, but on the basis of the cancellation of selections of 2001 batch the entire
process of 1999 and 2002 selections was also cancelled. It is also relevant to
mention that the selection process for the year 1998 was not the subject matter
nor any recommendation had been made by the Committee, even then the selections
of this year were also vitiated. The High Court Committee without there being
sufficient and adequate material on record recommended cancellation of
selections of both the executive and judicial officers and the Full Bench erred
in accepting the recommendation and terminating the services of all the
officers.
A
close scrutiny of the facts of this case clearly reveals that the judicial
officers did not get a fair treatment by the High Court. They were not given
copies of the Report and other material on which reliance was placed and they
virtually had no chance of making effective representation before the Committee
or any other forum where they could ventilate their grievances and present
their point of view.
When
the basis of termination is serious allegations of corruption, then it is
imperative that the principles of natural justice must be fully complied with.
The
High Court has not considered the case in the proper perspective. The
consequences of en masse cancellation would carry a big stigma particularly on
cancellation of the selections which took place because of serious charges of
corruption. The question arises whether for the misdeeds of some candidates,
honest and good candidates should also suffer on en masse cancellation leading
to termination of their services? Should those honest candidates be compelled
to suffer without there being any fault on their part just because the
respondents find it difficult to segregate the cases of tainted candidates from
the other candidates? The task may be difficult for the respondents, but in my
considered view, in the interest of all concerned and particularly in the
interest of honest candidates, the State must undertake this task. The
unscrupulous candidates should not be allowed to damage the entire system in
such a manner where innocent people also suffer great ignominy and stigma.
This
Court had an occasion to examine a similar controversy in the case of Onkar Lal
Bajaj's case (supra). In that case, there were serious allegations of political
patronage in allotment of retail outlets of petroleum products, (LPG
distributorships and SKO-LDO dealerships). This Court laid down that how could
a large number of candidates against whom there was not even insinuation be
clubbed with handful of those who were said to have been allotted
dealerships/distributorships on account of political connection and patronage?
This Court clearly stated that the two were clearly unequals. Equal treatment
to unequals is nothing but inequality. This is the most important principle
which has been laid down in this case by this Court. The Court further observed
that to put both the categories, tainted and the rest, on par is wholly
unjustified, arbitrary and unconstitutional, being violative of Article 14 of
the Constitution. In somewhat similar circumstances, in this case, the
Government, instead of discharging its obligation, unjustly resorted to the
cancellation of all the allotments en masse by treating unequals as equals
without even prima facie examining their cases. Those officers whose services
were affected because of en masse cancellation have not been given an
opportunity to represent before the concerned authorities.
In the
case of Onkar Lal Bajaj there were 413 cases and the task was indeed difficult
to segregate the cases of political connection and patronage with other cases.
But, even then, this Court while, setting aside the order of the Government cancelling
the allotment, appointed a Committee of two retired Judges, one of this Court
and another from the Delhi High Court, and they were requested to examine all
413 cases and decide the matter after getting the report from that Committee
appointed by the Court.
While
following the ratio in the said case, in the facts and circumstances of the
case, we deem it appropriate to set aside the order of the respondents cancelling
the en masse selections and direct the respondents to examine each case
separately on its merits and submit a report to this Court.
In
somewhat similar circumstances, in which initially it looked that it was impossible
to weed out the beneficiaries of one or the other irregularities, or
illegalities, if any, from the others, even then in the case of Union of India
v. Rajesh P.U. (supra), this Court observed that the competent authority
completely mis-directed itself in taking such an extreme and unreasonable
decision of cancelling the entire selections.
The
appellants submitted that the judicial officers have not been fairly treated by
the High Court. It was urged that the two senior judges who were members of the
Committee (appointed by the High Court) should not have been part of the Full
Bench constituted by the Chief Justice. In the facts and circumstances of this
case, I do not find any merit in this submission of the appellants. In these
cases, before hearing commenced, the learned counsel appearing for the
appellants clearly consented to hearing of the matter by the judges of the full
bench. After giving clear consent before the High Court, they cannot be
permitted to make any grievance before this Court. This tendency should not be
encouraged.
The
report submitted by the judges of the Committee was placed before the Full Court and after thorough examination and
discussion on the report by the full court, the same was approved by all the
judges of the High Court unanimously. All the judges after threadbare
deliberations on the report had put their seal of approval. The report, in fact
became the report of the High Court. On the same analogy no judge of the Punjab and Haryana High Court should have
heard this matter.
The
respondents have placed reliance on famous case Pinochet (1999) 1 All ER 577
which has been referred and relied by the Supreme Court in Rupa Hurra (2002) 4
SCC 388 at prs.21 read with prs.37-9 and Kumaon Vikas Mandal (2001) 1 SCC 182
at prs.30-2. There is no quarrel with the principles which have been laid down
in Pinochet's case.
But in
the facts and circumstances of this case after giving clear consent before the
commencement of the hearing in the High Court, it is not fair and appropriate
for the appellants to take this objection before this Court for the first time
after the Division Bench's judgment.
In the
facts of this case doctrine of waiver is attracted.
In 16 Halsbury's
Laws (4th edn) para 1471, the term 'Waiver' has been described in the following
words:
"Waiver
is the abandonment of a right in such a way that the other party is entitled to
plead the abandonment by way of confession and avoidance if the right is
thereafter asserted, and is either express or implied from conduct. It may
sometimes resemble a form of election, and sometimes be based on ordinary
principles of estoppel, although, unlike estoppel, waiver must always be an
intentional act with knowledge. A person who is entitled to rely on a
stipulation, existing for his benefit alone, in a contract or of a statutory
provision may waive it, and allow the contract or transaction to proceed as
though the stipulation or provision did not exist. Waiver of this kind depends
upon consent, and the fact that the other party has acted upon it is sufficient
consideration. Where the waiver is not express it may be implied from conduct
which is inconsistent with the continuance of the right, without need for
writing or for consideration moving from, or detriment to, the party who benefits
by the waiver; but mere acts of indulgence will not amount to waiver; nor can a
party benefit from the waiver unless he has altered his position in reliance on
it. The waiver may be terminated by reasonable but not necessarily formal
notice unless the party who benefits by the waiver cannot resume his position,
or termination would cause injustice to him.
It
seems that, in general, where one party has, by his words or conduct, made to
the other a promise or assurance which was intended to affect the legal
relations between them and to be acted on accordingly, then, once the other
party has taken him at his word and acted on it, so as to alter his position,
the party who gave the promise or assurance cannot afterwards be allowed to
revert to the previous legal relationship as if no such promise or assurance
had been made by him, but he must accept their legal relations subject to the
qualification which he has himself so introduced, even though it is not
supported in point of law by any consideration." In 45 Halsbury's Laws
(4th edn) para 1269, the meaning of the word 'waiver' has been described as
follows:
"Waiver
is the abandonment of a right, and thus is a defence against its subsequent
enforcement. Waiver may be express or, where there is knowledge of the right,
may be implied from conduct which is inconsistent with the continuance of the
right. A mere statement of an intention not to insist on a right does not
suffice in the absence of consideration; but a deliberate election not to
insist on full rights, although made without first obtaining full disclosure of
material facts, and to come to a settlement on that basis will be
binding." The two judges, who were part of the full bench, did not have
bias of any kind against the appellants. They had no pecuniary or any other
interest in the matter. They have discharged their judicial functions as
judges. Therefore, I find no merit in the submission that the two judges, who
were part of the Committee, ought not to have heard this matter.
In the
facts and circumstances of the case, in my considered opinion, the appellants
are not justified in making any grievance before this Court regarding the
hearing of the cases by the full bench of which two judges who had submitted
the Report, were also members. Admittedly, those judges constituting the full
Bench had no interest of any kind in deciding the matter one way or the other.
The appellants before the commencement of hearing categorically submitted that
they had no objection whatsoever to the hearing of the matter by the said full
bench. Even assuming, those judges had any bias against the appellants, the
appellants had waived their right, if any. In these circumstances, the doctrine
of 'waiver' is fully applicable.
The
doctrine of "Waiver" has been explained in Kammins Ballrooms Co. Ltd.
v. Zenith Investments (Torquay) Ltd. [(1970) 2 ALL ER 871]. The Court observed
as under:
"Waiver
is the abandonment of a right in such a way that the other party is entitled to
plead the abandonment by way of confession and avoidance if the right is
thereafter asserted, and is either express or implied from conduct. It may
sometimes resemble a form of election, and sometimes be based on ordinary
principles of estoppel." The English Court in Earl of Darnley v. London, Chatham and Dover Rly Co. [(1867) LR 2 HL
43 at 57, per Lord Chelmsford LC] observed that Waiver must always be an
intentional act with knowledge.
In
Central London Property Trust Ltd. v. High Trees House Ltd. [(1947) KB 130],
the Court observed as under:
"It
seems that, in general, where one party has, by his words or conduct, made to
the other a promise or assurance which was intended to affect the legal
relations between them and to be acted on accordingly, then, once the other
party has taken him at his word and acted on it, so as to alter his position,
the party who gave the promise or assurance cannot afterwards be allowed to
revert to the previous legal relationship as if no such promise or assurance
had been made by him, but he must accept their legal relations subject to the
qualification which he has himself so introduced, even though it is not
supported in point of law by any consideration." The doctrine of 'waiver'
has been interpreted by American cases in the same manner.
In
Scherer v. Wahlstrom [Tax Civ. App., 318 S.W.2d 456, 459], the waiver is
relinquishment or surrender of a right.
The
Court observed as under:
"A
"waiver" is a giving up, relinquishment or surrender of some known
right and takes place where a person dispenses with the performance of something
which he has a right to exact." In Smith v. McKnight [Tax Civ. App., 240
S.W.2d 368, 371, 372], the court observed as under:
"A
"waiver" is a giving up, relinquishment or surrender of some known
right, and takes place where a person dispenses with the performance of
something which he has a right to exact." The same principles have been
adopted in Covington Virginian v. Woods [29 S.E.2d, 406, 410, 182 Va. 538] and
Missouri State Life Ins. Co. v. Le Fevre, Tex [10 S.W.2d 267, 269].
The
doctrine of 'waiver' has been given the same meaning by our Courts also. In the
instant case, assuming the appellants had any right, that right was clearly
relinquished and given up by them, when they gave no objection to the hearing
of the case by the two judges who were part of the full bench. Now, after the
case was heard and the judgment has gone against them, it is hardly fair,
proper and appropriate for them to raise this as a ground before this Court.
Another
significant aspect of this matter is that the two judges (who were part of the
Committee) were not impleaded as parties in the writ petitions before the High
Court and they have not been impleaded as parties in these appeals before this
Court. In case, the appellants were so keen to level allegations against those
two judges, the appellants ought to have impleaded them as parties at least
before this Court (with the permission of this Court). This is the minimum
requirement of the principles of natural justice.
The
ratio of Joseph Vilangandan v. Executive Engineer [(1978) 3 SCC 36], is that
before taking any action against a contractor or anyone, a notice has to be
given.
Applying
the principles of the said case, in this case, the conclusion would be that the
appellants ought to have impleaded the said two judges as parties to the
petition before levelling allegation of bias against them.
In M/s
Erusian Equipment and Chemicals Ltd. v. State of West Bengal [(1975) 1 SCC 70,
this Court laid down that fundamentals of fair play require that the person
concerned should be given a notice. The appellants in the instant case are not
justified in levelling allegations against the said two judges without impleading
them as parties to the appeal before this Court.
I
respectfully agree with all the findings of my learned brother Justice Sinha
expect on this issue. On consideration of the cumulative facts and
circumstances I entirely endorse the directions given by my learned brother
Justice Sinha.
Consequently,
the learned Chief Justice of Punjab and Haryana High Court is requested to set
up two independent committees, one, with regard to the executive officers and
another with regard to the judicial officers. They should delineate the area
which falls for consideration by the said Committees and the Committees be
requested to reconsider all the cases and submit a Report to the Punjab and Haryana High Court as
expeditiously as possible.
In
consonance with the principles of natural justice the respondents are directed
to supply the copies of the report and other material on which reliance has
been placed within two weeks. The appellants would also be permitted to inspect
the entire record and obtain copies of the documents in accordance with the
rules. The Court would also provide the appellants two weeks time to submit their
objections to such report and comment, if any, on the material provided by the
Court. Since the appellants are out of job, the High Court is requested to
dispose of the matter as expeditiously as possible preferably within three
months from the date of receipt of the copy of this order. Status quo as of
today shall be maintained until the disposal of the matter by the High Court.
These
appeals are accordingly disposed of. In the facts and circumstances, the
parties are directed to bear their own costs.
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