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2017 DIGILAW 997 (MP)

Raghvendra Singh Yadav v. Union Of India

2017-09-13

HEMANT GUPTA, VIJAY KUMAR SHUKLA

body2017
ORDER : HEMANT GUPTA, CJ. The challenge in the present writ petitions is to an order passed by the Central Administrative Tribunal, Jabalpur Bench, Jabalpur (for short “the Tribunal”) on 17-10-2016 whereby the cancellation of appointment of the applicants before the Tribunal was maintained, but the merit list was ordered to be drawn on the basis of educational qualification, performance in qualifying examination, extracurricular activities, work experience etc. without conduct of interview. 2. The Original Applicants before the Tribunal have filed writ petitions against the said order passed by the Tribunal as also Navodaya Vidyalaya Samiti (for short “Samiti”) against the direction given in para 14 in respect of manner of fresh preparation of merit list. 3. The brief facts are that an advertisement was published for filling up of 62 posts in different disciplines called Miscellaneous Teachers. Such advertisement was published on 24-4-2012 (Annexure-P/1). The appointment process was in two parts. One is written examination of 140 marks followed by interview of 60 marks. In pursuance of the merit list prepared after conduct of written test and the interview, the appointment letters were issued on 12-9-2013. Admittedly, there is no irregularity in the marking of the written examination, but it is the mark-sheets of interview which were found to be forged and tampered. The allegation of forgery in the interview mark-sheets was referred to the Central Bureau of Investigation and on the basis of report of the Central Bureau of Investigation, the appointment letters issued to the applicants were cancelled/withdrawn on 14-1-2016 and 18-1-2016 but before an order of confirmation of the services of the Original Applicants was passed. Such order of cancellation was challenged in different applications before the Tribunal. 4. The Tribunal has found that it is impossible to segregate bad from good candidates as none of the original mark-sheets of the interview are available. Therefore, relying upon the Supreme Court judgment in the case of Tanvi Sarwal vs. Central Board of Secondary Education and others, (2015) 6 SCC 573 , the action of withdrawing the appointment of all the candidates was not found to be faulty. Therefore, relying upon the Supreme Court judgment in the case of Tanvi Sarwal vs. Central Board of Secondary Education and others, (2015) 6 SCC 573 , the action of withdrawing the appointment of all the candidates was not found to be faulty. However, the Tribunal directed that fresh merit-list be prepared by granting 60 marks assigned for interview only on the basis of documents submitted by the candidates on the basis of educational qualification, performance in qualifying examination, extracurricular activities, work assessment, work experience in terms of the relevant Recruitment Rules as well as advertisement. 5. The argument of learned counsel for the Original Applicants before the Tribunal is that the allegation of tampering the mark-sheets was in respect of 29 candidates and not the applicants, therefore, cancellation of their result is not justified. It is also argued that before cancelling or withdrawing the appointment, no opportunity of hearing was granted to the applicants nor the applicants were confronted with adverse material if any in the process of assigning marks in the interview. Therefore, the tainted candidates have to be segregated from the non-tainted ones in view of the judgment of the Supreme Court in the case of Inderpreet Singh Kahlon and others vs. State of Punjab and others, (2006) 11 SCC 356 . 6. On the other hand, the argument of Samiti is that since the entire appointment process is tainted inasmuch as there is no original mark-sheets of interview available on record, therefore, it has been decided by the Samiti to re-advertise the posts rather than to re-assess the suitability of the candidates by interviewing them again. It is also contended that the process of interview could not be re-defined by the Tribunal as the conduct of the interview is part of the statutory rules. Therefore, the statutory rules cannot be superseded by an order passed by the Tribunal to conduct interview in a particular manner. 7. We have heard learned counsel for the parties. The primary argument of the learned counsel for the applicants is that opportunity of hearing was not provided to the applicants before cancelling or withdrawing the offer of the appointment. We do not find any merit as the said issue has been examined by the Supreme Court in the case of Nidhi Kaim vs. State of M. P. and others, (2016) 7 SCC 615 . The relevant extract reads as under :— “38. We do not find any merit as the said issue has been examined by the Supreme Court in the case of Nidhi Kaim vs. State of M. P. and others, (2016) 7 SCC 615 . The relevant extract reads as under :— “38. The students in Sinha case [Bihar School Examination Board vs. Subhas Chandra Sinha, (1970) 1 SCC 648 ] relied upon an earlier judgment of this Court in Ghanshyam Das Gupta Case [Board of High School and Intermediate Education vs. Ghanshyam Das Gupta, AIR 1962 SC 1110 ]. It was held therein that the students (only 3 in number) whose examination was cancelled on the ground that they had resorted to copying ought to have been given an opportunity to defend themselves. This Court distinguished Ghanshyam Das Gupta case holding that the said judgment did not imply that the rule of audi alteram partem must be followed in cases “...where the examination as a whole was vitiated, say by leakage of papers or by destruction of some of the answer books or by discovery of unfair means practised on a vast scale ...” (Sinha case, SCC p.652, para 14). This Court further held that in Ghanshyam Das Gupta “the Court was then not considering the right of an examining body to cancel its own examination when it was satisfied that the examination was not properly conducted or that in the conduct of the examination the majority of the examinees had not conducted themselves as they should have” (Sinha case, SCC p.652, para 14)............... 39. Sinha case judgment, in my view, yields the following principles: xxx xxx 39.4 To insist on the observance of the principles of natural justice, i.e. giving notice to each student and holding enquiry before cancelling the examination in such cases would “hold up the functioning” of the educational institutions which are responsible for maintenance of the standards of education, and “encourage indiscipline, if not, also perjury. 39.5 Compliance with the rule of audi alteram partem is not necessary not only in the cases of employment of “unfair means on large scale” but also situations where there is a “leakage of papers” or “destruction of some of the answer books”, etc. 39.5 Compliance with the rule of audi alteram partem is not necessary not only in the cases of employment of “unfair means on large scale” but also situations where there is a “leakage of papers” or “destruction of some of the answer books”, etc. 39.6 This Court drew a distinction between action against an individual student on the ground that the student had resorted to unfair means in the examination and the cancellation of the examination on the whole (or with reference to a group of students) because the process itself is vitiated. xxx xxx 42. From an analysis of the above decisions, the following principles emerge :— 42.1 Normally, the rule of audi alteram partem must be scrupulously followed in the cases of the cancellation of the examinations of students on the ground that they had resorted to unfair means (copying) at the examinations. 42.2 But the abovementioned principle is not applicable to the cases where unfair means were adopted by a relatively large number of students and also to certain other situations where either the examination process is vitiated or for reasons beyond the control of both students and the examining body, it would be unfair or impracticable to continue the examination process to insist upon the compliance with audi alteram partem rule. 42.3 The fact that unfair means were adopted by students at an examination could be established by circumstantial evidence. xxx xxx 43. Cases such as the one on hand where there are allegations of criminal conspiracies resulting in the tampering with the examination process for the benefit of a large number of students would be certainly one of the exceptional circumstances indicated in Sinha case provided there is some justifiable material to support the conclusion that the examination process had been tampered with. 44. In the light of the principles of law emerging from scrutiny of the abovementioned judgments, we are of the opinion that case on hand can fall within the category of exceptions to the rule of audi alteram partem if there is reliable material to come to the conclusion that the examination process is vitiated. 44. In the light of the principles of law emerging from scrutiny of the abovementioned judgments, we are of the opinion that case on hand can fall within the category of exceptions to the rule of audi alteram partem if there is reliable material to come to the conclusion that the examination process is vitiated. That leads me to the next question – whether the material relied upon by the Board for reaching the conclusion that the examination process was contaminated insofar as the appellants (and also some more students) are concerned and the appellants are the beneficiaries of such contaminated process, is tenable?” 8. In Nidhi Kaim’s case the Supreme Court was examining the disqualification of the candidates conducted by the M. P. Professional Board for the professional courses. Though, the said judgment pertains to adopting of unfair means in the examination, but the principle laid down would be applicable in respect of appointment to a public post as well. It has been held that adherence to principle of natural justice for each and every students not practical and would be wastage of time and lead to further litigation in Court. The Court held that the principles of natural justice can be said to be applicable if there are one or two students but if there are large number of students, the principle of natural justice cannot be applied. Though the members of the Bench differed in respect of the disqualification of the candidates but in a later judgment reported in Nidhi Kaim and another vs. State of Madhya Pradesh and others, (2017) 4 SCC 1 , the Supreme Court has held that the candidates who have got admission on the basis of fraud, cannot claim any equitable indulgence. 9. In view of the said judgment since admittedly original interview marks of the candidates are not available, therefore, the tainted and untainted candidates cannot be segregated as was directed in Inderpreet Singh’s case. Therefore, the action of the Samiti in withdrawing or cancelling the offer of appointment cannot be said to be vitiated in any manner. 10. However, we are unable to agree with the decision of the Samiti is to re-advertise the posts, which will give opportunity to the applicants to apply and to be considered for appointment along with other eligible candidates. 11. 10. However, we are unable to agree with the decision of the Samiti is to re-advertise the posts, which will give opportunity to the applicants to apply and to be considered for appointment along with other eligible candidates. 11. We find that the selection process should not be aborted for the reason that the original interview sheets are not available with the Samiti. The illegality part can be cured by subjecting the candidates for fresh interview and assessing their suitability in terms of the Recruitment Rules and the condition of advertisement. Issuing of advertisement will enlarge the enlarge the number of candidates eligible to apply for the posts to be advertised. Such process will diminish the chances of the candidates who have applied in the year 2012 and appointed in the year 2013. The applicants form a separate class who were appointed in the year 2012 and their appointment has been withdrawn only for the reason that original mark-sheets of the interview are not available. Therefore, we find that decision of the Samiti to re-advertise the posts is not justified as it will put the candidates who applied in response to advertisement published in the year 2012 to a disadvantageous position. Consequently, the decision of the Samiti to re-advertise the posts, is not accepted. 12. The Tribunal has directed the interview to be conducted in the manner which is contrary to the Recruitment Rules and conditions of the advertisement. Such process cannot be accepted as 60 marks had to be assigned on the basis of interview in the manner mentioned in the Recruitment Rules and/or the advertisement. Consequently, we direct the Samiti to conduct interview of all the candidates and on the basis of marks assigned, make appointment. Such appointment shall take effect from the date of appointment. Since no pension Scheme is available, the period spent by the applicants in pursuance of selection which has been set aside cannot be ordered to be counted for the purpose of pension, if any such candidate is re-selected. 13. In view of the said fact, all the writ petitions stand disposed of in the manner mentioned above.