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2017 DIGILAW 553 (UTT)

Kamal Bhatt v. State of Uttarakhand

2017-10-24

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. All the petitioners before this Court in the above bunch of writ petitions were candidates for the post of Village Panchayat Development Officer. A written examination was conducted to select candidates for the above posts, by the Uttarakhand Subordinate Service Selection Commission. It is the case of the petitioners before this Court that there were 196 posts of Village Panchayat Development Officer for which 87,000 candidates had appeared in the written examination. The entire selection was on the basis of a written examination alone. All the petitioners before this Court were declared successful in the examination but were not being given the appointment letter as meanwhile a report has come, which casts doubt on the fairness of the examination. The petitioners therefore have filed the writ petitions before this Court primarily challenging the order dated 14.06.2017 of the Government by which the entire selection process has been ordered to be cancelled and the subsequent order of the Uttarakhand Subordinate Service Selection Commission in compliance of the said order, whereby the selection process has been effectively cancelled. In addition, the prayer is also that the candidates who have been declared successful and appointment letter be given to them. In some of the petitions, there is also a prayer that inquiry be conducted against such persons against whom there is a report of malpractice, nepotism or corruption, etc. 2. Counter affidavit has been filed before this Court by the Uttarakhand Subordinate Service Selection Commission as well as by the State Government. 3. The case of the petitioners before this Court is that there has actually been no anomaly or any mass use of unfair means, which may justify the cancellation of entire selection process. Presuming there are some individual cases, these cases can be easily identified by the Commission and the State Government, and only such cases are liable to be declared unsuccessful and their candidature is liable to be rejected but en-mass cancellation of the selection process is not justified, particularly under the facts of the present case. 4. An advertisement was issued by the Uttarakhand Subordinate Service Selection Commission on 20.11.2015 calling applications from eligible candidates for the posts of Village Panchayat Development Officer. Thereafter a written examination was held on 06.03.2016, which was based on objective type questions, where answers were to be given on an O.M.R. sheet. 4. An advertisement was issued by the Uttarakhand Subordinate Service Selection Commission on 20.11.2015 calling applications from eligible candidates for the posts of Village Panchayat Development Officer. Thereafter a written examination was held on 06.03.2016, which was based on objective type questions, where answers were to be given on an O.M.R. sheet. There were a total of 100 questions, carrying one mark for each correct question and for each wrong answer there was a negative marking of 0.25 marks. Results were declared by the Commission on 29.03.2016 and the petitioners before this Court were declared successful. Subsequently, a complaint was made before the Commission as well as before the State Government on which an enquiry was conducted by the Secretary. This report gave a finding that no anomaly was committed in the examination and hence an opinion was also given that appointments are liable to be given on the basis of the result declared by the Commission. Thereafter on 19.04.2016, Ms. Radha Raturi, Principal Secretary (Personnel), Government of Uttarakhand also gave a favourable report regarding the selection process and gave a finding that no anomaly has been detected in the examination and the action is required to be taken on the basis of result announced. The Government also accepted the report and directed that appointments be made. Thereafter, the process for document verification had also started. Meanwhile, a Three-Member Committee was appointed by the Government to make a detail enquiry in the matter and this Committee consisting of the Additional Chief Secretary, Government of Uttarakhand, Additional Secretary, Law, Government of Uttarakhand and the Inspector General of Police, has now given a prima facie finding that many of the OMR sheets have been tampered and more than 60% of the candidates have procured between 90-95 marks inspite of there being negative marking, which is quite an unusual state of affairs. 5. The illegality, validity or propriety of a decision taken by the Government is under challenge. In a recent judgment which is Gohil Vishvaraj Hanubhai & Others v. State of Gujarat & others (Civil Appeal No. 5680-83) of 2017, the Hon’ble Apex Court has reiterated the well-settled principles of judicial review in such matters. This has been done by the Hon’ble Apex Court by relying upon the celebrated judgment of House of Lords in Council of Civil Service Union v. Minister for Civil Service, 1984 3 All ER 935 (HL). 6. This has been done by the Hon’ble Apex Court by relying upon the celebrated judgment of House of Lords in Council of Civil Service Union v. Minister for Civil Service, 1984 3 All ER 935 (HL). 6. In the above case, which is also known as GCHQ case, it was held that subject to certain exceptions, prerogative powers are subject to a judicial review. Judicial review can be done on three grounds. First is on grounds of illegality. The second is on grounds of irrationality and the third is on procedural impropriety. 7. We are presently concerned with grounds of irrationality. In the above case, it has been held that what is meant by “irrationality” is synonymous with “Wednesbury unreasonablness”. In the words of Lord Diplock himself “Wednesbury unreasonableness” would mean “a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to ht question to be decided could have arrived at it.” The above decision, it must be stated here, has also been relied upon with approval by another seminal judgment of Hon’ble Apex Court in the case of Tata Cellular v. Union of India reported in (1994) 6 SCC 651 . 8. What this Court has therefore to see is whether the decision of the Government canceling the examination is so unreasonable that it may warrant an interference from this Court in a writ jurisdiction under Article 226 of the Constitution of India. The decision of the Government in the case at hand to cancel the examination, under the circumstances does not suffer from “Wednesbury unreasonableness”. To the contrary, it seems to be a just and reasonable decision. 9. Learned counsels for the petitioners though have relied upon the judgments of Hon’ble Apex Court in the case of Union of India and others v. Rajesh P.U., Puthuvalnikathu and another reported in (2003) 7 SCC 285 , Girjesh Shrivastava and others v. State of Madhya Pradesh and others reported in (2010) SCC 707 and Joginder Pal and others V. State of Punjab and others reported in (2014) 6 SCC 644 , where the Hon’ble Apex Court have directed that in certain cases cancellation of entire selection is not justified. 10. This Court is entirely in agreement on this. 10. This Court is entirely in agreement on this. Cancellation of the entire examination is not justified in each and every case, as that would depend upon the facts of each case. Presently in the case at hand, the facts and circumstances do justify the cancellation of the examination and therefore, the cases which have been relied upon by the petitioners having a different factual matrix will not be applicable in the present case. 11. Having heard the learned counsels for the petitioners as well as learned counsels for the respondents, I am of the considered view that there were reasonable materials before the Government on which a prima facie opinion can be made that it has been a case of mass unfairness and therefore cancellation of entire selection process is the only recourse left. The fact that there were two reports earlier which give an entirely different finding as to the one ultimately relied upon by the Government, will also be of no help to the petitioners for the reason that it is for the Government to either accept or reject a report. The Constitution of a third Enquiry Committee and reliance of its report does not seem to be unreasonable, under the circumstances. 12. The interim report which has been referred to this Court says that in many cases the OMR sheets have been tempered. Not only this, the interim report further says that in may cases the percentage of candidates have got unusually high marks which considering that there was a negative marking seems unlikely. Moreover, there has been a series of complaints from various quarters regarding the unfair means being used in the examination and therefore to repose the confidence of the public at large, the cancellation of the examination does not seem to be unreasonable. Moreover, the petitioners, in any case, even if they are selected do not have any indefeasible right to be appointed, as that is the settled position of law. Under these circumstances, this Court is of a considered view that no interference is liable to be made in these matters so far as the cancellation of examination is concerned. These petitions are liable to be dismissed and are hereby dismissed. 13. After having made above determination, there are two options actually available before the State Government. Under these circumstances, this Court is of a considered view that no interference is liable to be made in these matters so far as the cancellation of examination is concerned. These petitions are liable to be dismissed and are hereby dismissed. 13. After having made above determination, there are two options actually available before the State Government. First is to hold a fresh examination calling for fresh application and second, to have an examination only of the candidates who had appeared in the initial examination. Under these circumstances, it is the opinion of this Court that the second option seems to be proper. This Court, therefore, directs that only the candidates who had appeared in initial examination would be held eligible to appear in the examination for the posts of Village Development Officer, for which examination must be held. It is further made clear that the there shall be no increase or decrease in the posts for which the examinations were held initially by the Uttarakhand Subordinate Service Selection Commission. Let the same be done forthwith without delay.