PARVEEN KUMAR v. EDUCATION DEPTT., UT CHANDIGARH

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for SC category candidates and 45% for all other candidates. No interview was to be conducted and there was no negative marking. Paper 1 consisted of Multiple Choice Questions (morning session), having 20 questions each on English, Hindi, mental Ability, General Awareness and Teaching Aptitude and Paper-2 (Evening Session) consisted of multiple choice questions having 25 questions each on Science, Social Studies, mathematics, and Punjabi. The level of questions was to be as per qualification prescribed for the post. Similarly, for the post of TGT also, the respondents decided to have two papers, 1^stfor general awareness and 2^ndpaper consisted of Multiple choice questions related to the subject (s) for which a candidate had applied.

4. As per the material available on record, the paper for JBT was held on 31.1.2015 / 1.2.2015 and for the post of TGT, it was conducted during 14.2.2015 to 28.2.2015. As many as 43491 applications were received against advertisements (27075 for master Cadre; 12921 for JBT and 3495 for NTT). The result of test was declared on 1.3.2015 which was revised after considering the objections raised by the candidates in the month of May, 2015. Thereafter, the offer of appointment was given in the month of August, 2015 (Annexure A-5). As per this, the applicants were put on probation for a period of two years, at fixed monthly emoluments, equivalent to the minimum of the pay band of the post as per instructions issued by Chandigarh Administration vide letter dated

10.7.2015.

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5. There was an allegation against the Punjab University that for the papers conducted by it for Punjab State Civil Supply Corporation (PUNSUP), through an agency, the examination papers might have been leaked. On a disclosure statement, made before Punjab Police at Mohali, in relation to case of PUNSUP, where accused arrested therein stated that he has also leaked the paper of JBT and TGT conducted by Respondent No.2, an FIR No. 128 was got registered on 29.7.2016 (Annexure A-6) at Police Station, Sector 11, Chandigarh, wherein names of 32 candidates, who were selected and appointed as JBT, were included including another candidate from TGT. Another FIR No.201 was registered wherein names of 7 candidates of TGT were included. The applicants, who were offered appointment in 2015 and were on probation of two years, their probation period was extended. According to applicants, a Special Investigation Team (SIT) was constituted which conducted investigation and published names of 34 candidates, who as per them, could have had benefitted from leaked paper. The work and conduct of the applicants is stated to be above board. However, all of a sudden the respondents passed order dated 30.5.2018 (Annexure A-8 Coolly), as per which the entire recruitment process for the post of JBT and TGT has been scrapped completely snatching away the appointment of the applicants, hence the O.A.

6. The respondents have filed a reply. They do not dispute the factual accuracy of the matter relating to issuance of

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advertisement, applications submitted by candidates and their selection and appointment. However, they submit that on a complaint, made by Vigilance Bureau, that the paper had been leaked, an FIR was registered and thereafter an SIT was constituted to look into the veracity of allegations of accused in another case. There were shocking details that form part of the detailed police investigations resulting in preparation of three status reports dated 6.11.2018, 16.2.2018, 14.3.2018 and 21.3.2018 (Annexure R-1, R-2, R-3 and R-4). The list of 49 beneficiaries who had access to leaked question papers was also given. The Administration constituted a Committee of higher functionaries of the respondent department to examine the status report submitted in FIR dated 29.7.2016 and suggest further course of action. The Committee gone into the depth and has submitted its report, giving two alternatives, firstly to terminate the services of 43 candidates out of 49, whose names are mentioned in the status report, as 5 candidates were not offered appointment and one had expired and secondly to cancel the selection for the post of JBT and TGT and consequently, terminate the services of candidates and fresh test be held for all the applicants, who had applied for the post of JBT, TGT in response to the advertisement issued in October/November, 2015. The competent authority, while accepting the report of the Committee, constituted for this purpose, considered the fact that since papers have been leaked and as per the FIR, the Module had gone to various houses, therefore, they decided to opt for second option and

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accordingly during the period of extended period of probation, decided to cancel the entire selection of candidates who had qualified the written examination and they have decided that they will again conduct the test and services of applicants stand dispensed. The respondents have also stated in the written statement that while applicants were on extended period of probation, therefore, respondents are well within their right to dispense with the services of the applicants, as a result of, cancellation of entire examination due to malpractice, and as such they cannot raise any grouse against the same, as there is no allegation against the applicants and as such impugned orders are not stigmatic in nature and character. They also submit that there is no need to follow the principles of natural justice, as the action is not against a particular candidate. Considering the leakage of the papers, the competent authority got conducted the inquiry and formed an opinion that entire selection be quashed and set aside and re-conduct the test of the candidates under intimation to them.

7. We have heard Mr. D.S. Patwalia, Sr. Advocate along with Mr. A.S. Chadha, Advocate, Dr. Anmol Rattan Sidhu, Sr. Advocate with Mr. P.K. Hooda, Mr. S.K. Sharma, Mr. Manhar Singh Saini, Mr. Sanish Girdhar, Advocates, Mr. Puneet Bali, Senior Advocate, with S/Sh. Vibhav Jain, Mukesh Mehra and Ishan Liberahan, Advocates and Mr. Rohit Seth, Advocate for the applicants and Mr. Gurminder Singh, Sr. Advocate, with Mr. Vikas Chatrath, Ms. Madhu Dayal, Mr. Harpriya Khemka, Mr.

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Arvind Moudgil and Mr. Aseem Rai, Advocates, for respondents.

8. To begin with, Mr. Rohit Seth, Advocate, took us through the facts of the cases, rule position, vehemently argued on merits and legal aspects involved in the case. Mr. Patwalia, learned Senior Advocate submitted that as per rule 7 (2) of the Punjab Civil Services (Condition of Service) Rules, 1994, a person appointed to any post in the Service shall remain on probation for a period of two years, if recruited by direct appointment. Clause (2) specifically provides that if, in the opinion of the appointing authority, the work or conduct of a person during the period of probation is not satisfactory, it can dispense with his service. The rule being relevant is reproduced as under :-

"7. Probation.

(1) A person appointed to any post in the Service shall remain on probation for a period of two years. If recruited by direct appointment and one year if appointed otherwise :—

Provided that,—

(a) any period, after such appointment spent on deputation on a corresponding or a higher post shall count towards the period of probation;

(b) in the case of an appointment by transfer, any period of work on an equivalent or higher rank, prior to appointment to the Service, may in the discretion of the appointing authority, be allowed to count towards the period of probation ;

(c) any period of officiating appointment to the Service shall be reckoned as period spent on probation ; and

(d) any kind of leave not exceeding six months during or at the end of period of probation, shall be counted towards the period of probation.

(2) if, in the opinion of the appointing authority, the work or conduct of a person during the period of probation is not satisfactory or he has failed to pass the departmental examination, if any, prescribed in Service Rules within a period not exceeding two and a half years from the date of appointment, it may,-

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(a) if such person is recruited by direct appointment, dispense with his service or revert him to a post on which he held lien prior to his appointment to the Service by direct appointment; and

(b) if such person is appointed otherwise,—

(i) revert him to his former post; or

(ii) deal with him in such other manner as the terms and conditions of the previous appointment permit.

(3) On the completion of the period of probation of a person, the appointing authority may,—

(a) if his work and conduct has in its opinion been satisfactory-

(i) confirm such person, from the date of his appointment or from the date he completes his period of probation satisfactory, if he is not already confirmed ; or

(ii) declare that he has completed his probation satisfactory, if he is already confirmed ; or

(b) if his work or conduct has not been, in its opinion, satisfactory or if he has failed to pass the departmental examination, if any, specified in the Service Rules-

(i) dispense with his services, if appointed by direct appointment or if appointed otherwise revert him to his former post, or deal with him in such other manner as the terms and conditions of his previous appointment may permit; or

(ii) extend his period of probation and thereafter pass such order as it could have passed on the expiry of the period of probation as specified in sub-rule (1):

Provided that the total period of probation including extension, if any, shall not exceed three years."

9. Mr. Patwalia, with particular reference to aforesaid rules, argued vehemently that same are applicable to employees of Chandigarh Administration and if the appointing authority has to dismiss an employee during the period of probation, it can do so only on the grounds mentioned therein, not otherwise else it will be without jurisdiction and based on conjectures and surmises. In support, he placed reliance of decision of our own jurisdictional High Court in the case of RAJINDER SINGH VS. PUNJAB & HARYANA HIGH COURT, C.W.P. No. 5697 of 2014 Decided on 13.2.2017, reported as MANU/PH/0725/2017. In that case, similar rule 8(2) of Haryana Subordinate Courts

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Establishment (Recruitment and General Conditions of Services) Rules, 1997, relating to termination of service during probation, as in this case was considered and Court held that termination of service on a complaint is stigmatic. If conduct of an employee is not in accordance with law, in such a situation it is necessary to hold an enquiry. Thus, order dispensing with his service, being based on allegations and not in terms of sub rule 2 of rule 8 was quashed and set aside. He, thus, argued that case in hand is fully covered with aforesaid decision and is even on better footing as the competent authority has given foundation and motive for termination of services of applicants, in the impugned orders itself.

10. Learned senior counsel argued that though an attempt has been made in order to coin impugned orders as simplicitor, but it is not so. He took us to the entire pleadings minutely and he vehemently argued that the impugned orders are in violation of principles of natural justice as the services of applicants have been terminated during the period of probation and being stigmatic and are liable to be quashed and set aside. He explained further that the orders are illegal and arbitrary as the same are not as a result of the work and conduct of the applicants having been found not upto mark but in the guise of making it simplicitor, their reputation is sought to be destroyed, on the ground of alleged illegality in conduct of the examination in question, even though the names of the applicants are not there in the FIR in question. The orders are based on the report of SIT, which was considered by a

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Committee constituted by the Department to find out the veracity of the allegations and to suggest further course of action, who opined to dispense with services of tainted candidates or cancel the entire examination but the competent authority without application of mind, has cancelled entire selection, and as such it cannot be termed to be a simplicitor termination orders during extended period of probation.

11. The learned senior counsel further argued that the material available in the impugned orders would suggest that the applicants have been declared as tainted as it has clearly been stated therein that a network was devised in a manner that all the persons involved right from the supplier of leaked paper to different conduits, agents, candidates, acting as agents, invited other candidates and provided them leaked question paper and chains / pyramids were made for leakage of papers and they availed unlawful benefit. In short, there is a specific allegation that applicants adopted unfair means and thus, acting upon a disclosure statement of an accused in some other cases, without there being any material on record, the impugned orders have been passed. Thus, he submits that even if for the sake of argument, it is assumed that this is not a stigmatic order, but the respondents have cast aspersions upon the applicants by cancelling the entire written examination and have destroyed their reputation and as such the impugned orders are stigmatic throughout and therefore, these be set aside.

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12. Mr. D.S. Patwalia, learned counsel for the applicants vehemently argued that a fresh appointee is put on probation to examine his work and conduct relating to official duties and if that is found to be upto mark, then his probation is to be cleared and if there is no complaint in that relevant connection, then any order of termination passed during probation period, even if coined as simpliciter, would be stigmatic and cannot be sustained in the eyes of law. For this he placed reliance on the decision of Hon'ble Apex Court in the case of DIPTI PRAKASH

BANERJEE VS. SATVENDRA NATH BOSE NATIONAL

CENTRE FOR BASIC SCIENCES, CALCUTTA & OTHERS, 1999 (3) SCC 60, in which the Hon'ble Supreme Court observed that "If findings were arrived at in an enquiry to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as " founded" on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, as the same time, he did not want to continue the employee against whom there were complaints, if would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegation because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence, in such a circumstance, the allegation would be a motive and not the foundation and the simple order of termination would be valid."

It is thus clear that if an enquiry was conducted as to

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misconduct, behind the back of the officer or without a regular departmental enquiry, the simple termination is to be treated as 'founded' on the allegations and will be bad. It has been held authoritatively therein that if a discharge is based upon misconduct or if there is a live connection between the allegations of misconduct and discharge, then the same even if couched in language which is not stigmatic, would amount to a punishment for which a departmental enquiry was imperative. It was held that order therein was punitive in character and had been motivated by considerations which were not reflected in the said order.

13. Similarly, reliance was also placed upon REGISTRAR

GENERAL HIGH COURT OF GUJRAT AND ANOTHER VS

JAYSHREE CHAMANLAL BUDDHABHATTI, JT 2013 (14) SC

297. In this case, a Civil Judge (Junior Division) in Gujrat judiciary was terminated during probation. She was selected in 2003 and was appointed as Civil Judge on 02.03.2005. She was placed on probation for a period of two years. She found some subordinate members were not functioning properly and made complaint to District Judge. Vide letter dated 19.09.2006 High Court communicated adverse entry to her. She replied to the said adverse entry vide letter dated 14.11.2006. Again she received adverse entry for subsequent period vide letter dated 25.07.2007. It was also represented by her vide letter dated 24.08.2007. Thereafter she was terminated vide letter dated 14.12.2007 observing that her performance is not good and satisfactory and she is not suitable for the post she holds. She

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again represented vide letter dated 04.01.2008. Termination was challenged in the High Court and writ petition was allowed holding that it was not a case of termination simplicitor of a Probationary Officer but by way of punishment and without enquiry it could not have been done. Matter was taken to Supreme Court by Registrar General, Gujrat High Court. Supreme Court found from record that before passing order of termination initially discreet enquiry was conducted by Mr. Kothari, the then District Judge, Junagadh and another preliminary enquiry was conducted by Sri B.U. Joshi, Registrar (Vigilance). Sri Joshi was District Judge when Jayshree Chamanlal made complaint against behaviour of subordinate staff but no action was taken by then District Judge i.e. Mr. Joshi. Instead adverse remarks on the personal characteristics with respect to politeness and courtesy were made against concerned official. Court observed that since there was already a view taken by the then District Judge, Mr. Joshi ought to have recused himself from preliminary enquiry. Court also found that Mr. Joshi's preliminary enquiry is foundation of termination. Report says that Jayshree used to talk to Mr. Thakker on telephone and those talks had crossed the prescribed limit. Lordship found that termination was punitive and without enquiry it was bad. It was held that if an enquiry is conducted to found suitability of a Probationary Officer there cannot be any fault and such enquiry will not render termination punitive but during the course of enquiry any allegations are made against person concerned which results into stigma, such

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person should be given opportunity/protection contemplated under Section 311(2) of Constitution of India.

14. Mr. Bali, learned Senior Advocate, vehemently argued that no offence can be said to be proved against a person, only on the basis of a disclosure statement made in an FIR during investigation as one can be even discharged of an allegation on the basis of such statement as per procedure prescribed in Section 227 of the Code of Criminal Procedure, 1908. In the case of PANDURANG KALU PATIL v. STATE OF

MAHARASHTRA 2002(1) SCALE 290 (SC) it has been held that 'a fact can be discovered by the police pursuant to an information elicited from the accused if such disclosure was followed by one or more of a variety of causes. Recovery of an object is only one such cause. Recovery, or even production of object by itself need not necessarily result in discovery of a fact...... No doubt in a given case an object could also be a fact, but discovery of a fact cannot be equated with recovery of the object though the latter may help in the final shape of what exactly was the fact discovered pursuant to the information elicited from the accused.' Similarly, in STATE OF KARNATAKA v. DAVID RAZARIO 2002(6) SCALE 500 (SC) it was observed that "No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which 'distinctly relates to the fact thereby discovered', but the information to get admissibility need not be so truncated as to make it insensible or comprehensible. The extent of information admitted should be consistent with

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understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.". The plea is that unless a disclosure statement gets authenticated by subsequent evidence, the same is not reliable and cannot be acted upon to the prejudice of any one. In this case, the criminal case is yet to see the light of the day and unless and until the same is concluded, how the authorities can presume that the applicants are guilty of an offence and snatch their livelihood on conjectures and surmises. Moreover, the respondents cannot cancel the entire selection without identifying the beneficiaries of the leakage of papers, if any. The proper course for them would have been to wait for the conclusion of criminal case. He further argued that even in the order of extension of probation period, it is very clearly mentioned that the same has been extended till the FIR or criminal proceedings are concluded, which has apparently been deviated without any logic or reason. Thus, he argues that the impugned orders have been passed in haste and, therefore, are liable to be quashed and set aside.

15. Learned counsel for the applicants further argued that admittedly in the case in hand, there has been violation of principles of natural justice and article 311 (2) of the Constitution of India as no opportunity, whatsoever, has been afforded to applicants to put their side of the case and impugned orders have been passed only on the premise that no useful purpose would be served as entire examination has

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been scrapped which is illegal as applicants could have explained that they are not involved in any illegality and their termination is based on conjectures and surmises.

16. Dr. Anmol Rattan Sidhu, Sr. Advocate, in addition to touching upon the basic issues of impugned orders being in violation of principles of natural justice; could not be passed during probation period as these contain stigma against the applicants and do not conform to parameters laid down in rules relating to termination during probation period; these are not based upon any enquiry or evidence; the competent authority has shown arbitrariness in choosing to cancel the entire selection itself, instead of acting against only tainted candidates named in the FIRs, has also argued that mere disclosure statement cannot be used as a ground to dispense with the services of the applicants and more so qua the applicants who are not even named in the indicated FIRs. Other learned counsels also argued on the similar lines and prayed that the impugned orders be quashed and set aside.

17. On the other hand, Mr. Gurminder Singh, learned Senior Advocate for the respondents argued that the impugned orders are proper and legal in the facts and circumstances of the given cases. He started his argument from the stage the paper was leaked. He submitted that a private printing Press at Delhi was engaged by the Panjab University, which was given task for setting-up paper and submit it to the recruiting agency. The paper was leaked at Delhi, which came to light when an FIR was registered by Punjab Police, in relation to PUNSUP

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recruitment. After that, an enquiry was conducted in which it was found that paper was indeed leaked. Thus, a Committee was constituted to go into the matter and advice on further course of action. The Committee advised for either termination of service of 43 individuals or secondly to cancel entire test and re-conduct it. The competent authority resorted to the second option. He argued that tainted teachers cannot be allowed to teach the students and remain part of noble profession. He argued that since entire selection stands cancelled, the question of issuance of show cause notice or conducting any enquiry does not arise and in any case, SITs were conducted which have given their report and such reports have been considered by competent authority before passing the impugned orders. He argued that it is difficult to pin point any particular candidates so as to pick them up from the rest and considering the magnitude of the paper leakage, it was rightly decided to cancel entire selection process. He denied that there is violation of principles of natural justice. He argued that a person having obtained appointment on the basis of illegality, cannot be shown any compassion.

18. We have heard the learned counsel for the parties and have gone through the projected grounds and arguments for invalidation of impugned orders and considered the judgements cited by either parties, with their able assistance. What we can summarise from the arguments advanced by the learned counsel for the applicants is that the applicants have

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challenged the impugned orders, inter-alia, on the following grounds :-

(a) The respondents could not have terminated the services of the applicants, during the probation period, on grounds other than, that their work and conduct is not upto mark.

(b) The impugned orders and action of the respondents are in flagrant violation of Article 311 (2) of the Constitution of India.

© The impugned orders and action of respondents are in sheer violation of principles of natural justice as the applicants have not been given an opportunity of hearing, before passing of the impugned orders, based on a report of Special Task Force (STF) and action has been taken behind their back, which is not permissible in the eyes of law.

(d) The respondents could not have terminated the services of all the candidates, who have been selected and appointed, despite the fact that authorities have identified the tainted and non-tainted candidates, as per names included in FIRs.

(e) The competent authority has shown arbitrariness in cancelling the entire selection itself, instead of working against only the tainted candidates, named in the FIRs.

19. The learned counsel for the respondents on the other hand have justified their stand in terminating the services of all

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the candidates, who appeared, qualified the examination and were appointed, on the following grounds :

(a) Once the very paper itself has been leaked at the initial stage at Printing Press, and it may have travelled through hundreds of hands and as such to clean up the system, they have decided to re-test all those candidates, inter-alia, who had undertaken the paper including those who had been offered appointment.

(b) Since it is clear from the disclosure statement made in another case and on that basis, FIRs were registered and SIT was formed and accepting its findings, the competent authority with a view to give a fair chance to all candidates, has decided to conduct re-test and the applicants would be given a chance to appear in the same and if they qualify, they would be extended all the benefits from the date they have been so appointed to their respective posts.

20. On carefully going through the facts, grounds and authoritative judgements as relied upon by the respective parties, we are afraid, that the impugned orders and action of the respondents could be sustained in the eyes of law for a number of reasons, as discussed herein below.

21. Primarily, there are two categories and fundamental issues before us. The first is, whether the services of those, who are not tainted and against whom there is no evidence, are required to be re-examined for the job they have been recruited for and secondly, whether without any positive evidence of

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misconduct or cheating or fraud, the non-tainted candidates need to be proceeded against by a process of re-examination of their ability to hold the post. Now we proceed to discuss the issues head-wise as under:-

ARBITRARINESS

22. It is not in dispute that there was nothing before the respondents while conducting test and offering appointment to the applicants. It is for the first time that they were informed by the Punjab police, on the basis of a disclosure statement suffered by one of the accused arrested in a leakage of examination papers of PUNSUP, where he disclosed that he had also had the papers of Chandigarh Administration. It is upon receipt of such a disclosure statement, that two FIRs were registered where in all, 49 persons were named therein. Based upon the said FIR, SIT was constituted by the Chandigarh Administration, which went into the allegations and ultimately gave two options either to terminate the services of tainted 49 persons, out of which only 43 had joined their duties, or to dispense with services of all the candidates and conduct a fresh test. The competent authority, however, decided to opt for the latter option. All these facts are duly mentioned in the impugned order itself. On the basis of these facts, the competent authority passed the impugned order, terminating the services of the applicants. The contents of the order being relevant are reproduced as under :-

"Whereas, the Education Department of Chandigarh Administration had advertised 489 posts of Junior Basic Teachers (JBT) in the month of October/November, 2014. Written test for the said posts was held on 01-02-2015 and the selection lists were released in July, 2015. Accordingly,

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the appointment orders were issued in the month of August, 2015 and consequent thereto the said candidates had joined the services on different dates;

And whereas, the then Director of Vigilance Department, Govt. Of Punjab had made a complaint vide No. 367/5E/16 DDA LEGAL, R3745/DSPCENT dated 29-07- 2016 regarding leakage of question paper, on the basis of which the aforementioned appointment orders were issued to the various candidates for the post of JBT; And whereas the Chandigarh Police had registered FIR No. 128 dated 29/07/2016 under section 409/420/120-B of IPC & Section 8/9/13 of Prevention of Corruption Act, 1988, at Police Station, Sector 11, Chandigarh. Thereafter, Special Investigation Team (SIT) was constituted to carry out the detailed investigation in the matter;

And whereas consequent upon the registration of the above mentioned FIR, it was ordered by the then Education Secretary that the probation period of newly selected JBTs will not be cleared till the final outcome / investigation of FIR and the same may be extended beyond 2 years and the said orders were issued vide No. 4015-DSE-UT-S2- 11(170)2016 dated 12-07-2017.

And whereas the Superintendent of Police (Operation), SIT, Chandigarh Police had submitted detailed status report dated 06-11-2017 in the matter, wherein it was clearly mentioned that the question paper of the entrance test held in the month of February, 2015 for the post (s) of JBT & TGT in Education Department, Chandigarh had been leaked from the printing press and large number of candidates availed the same through different conduits by paying consideration amount of Rs.7 to 10 lacs per candidate / beneficiary. The whole network was working in such a manner that all the persons involved right from the supplier of leaked paper to different conduits, agents, candidates, candidates acting as agents who invited other candidates and provided them the leaked question paper and as such long chains / pyramids were made for leakage of papers and availing of unlawful benefit there from.

And whereas H.E., the Administrator, U.T, Chandigarh had constituted a Committee consisting of senior officers of Chandigarh Administration vide order No. DSE-UT-S4- 11(203)16/3830-31, dated 01-02-2018 to examine the status report dated 06-11-2017 and to suggest further course of action. Accordingly, the committee discussed the said status report, in detail, by holding various meetings. The Committee had also taken briefing from the investigation agency from time to time besides taking into consideration the subsequent status reports dated 14-03- 2018 & 21-03-2018.

Whereas, the committee had also made reference to and relied upon the judgments passed by the Apex Court in the following cases :-

(i) Civil appeal Nos. 5675-5677 of 2007 - Chairman, All India Railway Rec. Board & Anr. Versus K. Shyam Kumar & Ors., whereas it was held that "find no infirmity in the decision taken by the Board in conducting the second written test for those who have obtained minimum qualifying marks in the first written test rather than going ahead with the first

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written test which was tainted by large scale irregularities and malpractices. The Board can now take further steps to regularize the results of the second test and the appointments of the selected candidates."

(ii) Civil Appeal No. 5680-83 of 2017, Gohil Vishvaraj Hanubhai & Others Versus State of Gujarat & Others, wherein it was held that Identifying all the candidates who are guilty of malpractice either by criminal prosecution or even by an administrative enquiry is certainly a time consuming process. If it were to be the requirement of law that such identification of the wrong doers is a must and only the identified wrongdoers be eliminated from the selection process, and until such identification is completed the process cannot be carried on, it would not only result in a great inconvenience to the administration, but also result in a loss of time even to the innocent candidates. On the other hand, by virtue of the impugned action, the innocent candidates (for that matter all the candidates including the wrong doers) still get an opportunity of participating in the fresh examination process to be conducted by the State. The only legal disadvantage if at all is that some of them might have crossed the upper age limit for appearing in the fresh recruitment process. That aspect of the matter is taken care of by the State. Therefore, it cannot be said that the impugned action is vitiated by lack of nexus with the object sought to be achieved by the State, by herding all the candidates at the examination together.

(iii) Civil Appeal Nos. 470 of 1997 -Madhyamic Shiksha Mandal, M.P. Vs. Abhilash Shiksha Prasar Samiti, wherein it was held that "…In the face of this material, we do not see any justification in the High Court having interfered with the decision taken by the Board to treat the examination as cancelled. It is unfortunate that the student community resorts to such methods to succeed in examinations and then some of them come forward to contend that innocent students become victims of such misbehavior of their companions. That cannot be helped. In such a situation the Board is left with no alternative but to cancel the examination. It is extremely difficult for the Board to identify the innocent students from those indulging in malpractices. One may feel sorry for the innocent students but one has to appreciate the situation in which the Board was placed and the alternatives that were available to it so far as this examination was concerned. It had no alternative but to cancel the results and we think, in the circumstances, they were justified in doing so. This should serve as a lesson to the students that such malpractices will not help them succeed in the examination and they may have to go through the drill once again." (emphasis supplied.) And whereas, after examining the status report submitted by the SIT, going through the facts and record of the case and making reference to the various judgments passed by the Hon'ble Apex Court of India, the Committee had observed that the investigation process is still going on, which may take long time to complete,. Further, the Committee also took note of the fact of the cancellation of written test of HCS (judicial)-2017 by the Hon'ble Punjab and Haryana High Court, at Chandigarh due to alleged leakage of question papers. Accordingly, the Committee arrived at a view point that the entire recruitment process of JBT & TGT of 2015 had got vitiated and recommended as under :-

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(i) Selection based upon the written test conducted in 2015 for the post of JBT and TGT teachers be cancelled. Consequently, the services of selected candidates, who were offered appointment or were appointed to the post of JBT and TGT in pursuance thereof, be dispensed with in accordance with law.

(ii) Fresh written test be held for all the applicants, who had applied for the posts of JBT, TGT in pursuance of the advertisement issued in October/November, 2014. Eligibility conditions and other requirements will remain unchanged. And whereas the above mentioned facts and circumstances of the entire matter were placed before the HE the Administrator, UT, Chandigarh and after his approval it has been decided to cancel the selection based on the written test conducted on 01-02-2015 for recruitment of Junior Basic Teachers (JBTs) against the posts advertised in the month of October / November-2014 under direct recruitment. Consequently, the services of all the candidates (list as per Annexure-I) selected for the post of JBT on the basis of written test conducted on 01-02-2015 are hereby dispensed with. Further, written test for all the applicants, who had applied for the post of JBT in pursuance of the advertisement issued in October / November, 2014, will be reconducted after giving prior notice in the news papers. It is further clarified that eligibility conditions and other requirements as prescribed in the aforesaid advertisement in the year 2014 will remain unchanged qua the candidates, whose services are dispensed with vide this order. Furthermore, in the eventuality of selection in written test, which is to be conducted afresh, the claim of counting past service rendered consequent upon appointment in pursuance of selection based on written test dated 01-02- 2015 in UT Schools will be considered as per instructions / rules applicable in this regard. Notwithstanding above, it is made clear that this decision will not cast any personal stigma on any of the candidates specified in Annexure-I above. This order issues / takes immediate effect. This issue with the approval of HE, the Administrator, UT, Chandigarh.

Dated Chandigarh the Rakesh Kumar Popli

30^thMay, 2018 Director School Education,

Chandigarh Administration"

23. A perusal of the sequence of events and the facts mentioned in the aforesaid impugned orders, make it more than clear that the SIT has formed its opinion, based upon an FIR which is further based on an disclosure statement and the authorities have not cared to sort out the tainted persons from untainted one and for the sins of few persons, who could have been pin pointed, the entire lot has been castigated. In fact the very language used in the order indicates that the authorities have tried to save their skin from conducting a proper enquiry

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and to escape from their liability to find out the truth, they have decided to find out a easy way out to cancel the entire selection itself with a view to dispense with the services of the applicants. What is intriguing is that after mention of the sequence of facts and judgements and even underling a portion of the same that it may be difficult to identify innocent ones from those who indulged in malpractices, the competent authority has not even cared to record a specific finding that it would be difficult or impossible for them to identify the innocents or guilty persons out of the entire lot. In fact, their enthusiasm and zeal to find an easy way out is apparent when it is observed that investigation in process is still going on, which may take long time to complete and as such entire recruitment process had got vitiated and recommendation was made. In other words, there has not been any investigation, worth the name, to find out the truth of the matter and the decision to scrap the selection is based on conjectures and surmises, which cannot be appreciated by a court of law. After cancellation of entire process, they have decided to conduct the re-test of only those candidates who had applied including the applicants who were selected and offered appointment. To us, it is a clear cut case of arbitrariness on the part of the competent authority and the impugned order, in that relevant connection, stands vitiated. It is well settled law that the discretion vested in an authority must be exercised judicially and not in an arbitrariness else it would be illegal on the touchstone of constitutional provisions. This issue is no longer res-integra and stands settled.

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24. The Hon'ble Supreme Court in the case of VINOD

KUMAR VERSUS STATE OF HARYANA AND OTHERS,

2013(16)SCC 293 held as under :-

"23. We may usefully refer to the judgment of the English court in Roberts v. Hopwood laying down the law in the following terms:

"... A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. Discretion does not empower a man to do what he likes merely because he is minded to do so- he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably."

25. Similarly, in the case of STATE OF U.P. VERSUS RENUSAGAR , (1988) 4 SCC 59, it was ruled that the exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. Similarly, if the power has been exercised on a non-consideration or non- application of mind to relevant factors the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. Not only that, the Apex Court in COMMISSIONER OF INCOME TAX, BOMBAY AND OTHERS A V. MAHINDRA AND MAHINDRA LIMITED &

ORS., [1983] 3 S.C.R. 773, dealt with the parameters of the Court's power of judicial review of administrative or executive action or decision. It is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong

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approach or has been influenced by irrelevant or extraneous matters, the Court would be justified in interfering with the same. Considering these settled principles, we are of the view that the competent authority, in this case, has not exercised discretion vested in it, to proceed against only tainted candidates and has tried to find out a easy way out and without recording even a finding in that relevant connection, whether it was practicable to find out blame worthy candidates or not, has proceeded to cancel the entire selection, which is indeed an arbitrary exercise of power.

TERMINATION OF SERVICE DURING PROBATION PERIOD

26. The issue is, whether the impugned action of the respondents can be justified or not because the services of the applicants have been terminated, while they were working during extended period of probation. As can be seen from the rule position itself, in order to invoke the clause of dismissal from service during probation period, the competent authority has to examine the work and conduct of an employee, whether he is fit to be retained in service or not. In the present case, the respondents have not spelt out even a single reason that the work and conduct of the applicants is good or bad. There is no inkling in that regard, at all. The order clearly indicates that it has been passed on the ground that the selection process is tainted and therefore, their services have been terminated which is not sustainable. For this, we have to go through the concept, meaning and purpose of probation.

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27. What is the meaning of the probation in service jurisprudence? Very often appointment of a person is initially made on probation. His/her service rules contain such a provision. The reason is prescribed and the reason as to why a period of probation is prescribed and how such period is understood in service jurisprudence has been elaborately discussed by the Hon'ble Apex Court in the case of AJIT SINGH VERSUS STATE OF PUNJAB, 1983 (2) S.C.C. Page

217. The Court explained that the concept of probation acquired importance in the developing master servant relationship in public service where it became difficult for the employer to dispense with the services of an employee without following certain procedural safeguards like natural justice. It was observed that in order that an incompetent or inefficient servant is not foisted upon an employer because the charge of incompetency or inefficiency is easy to make but difficult to prove, the concept of probation was devised. To guard against errors of human judgment in selecting suitable personnel for service, the new recruit was put on test for a period before he/she is absorbed in service or gets a right to take post. Period of probation gave a sort of locus poenitentiae to the employer to observe the work, ability, efficiency, sincerity and competence of the servant and if he /she is found not suitable for the post, the master reserved a right to dispense with his / her service without anything more during or at the end of the prescribed period which is styled as period of probation.

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28. In the oft-cited decision in the case of PARSHOTAM LAL DHINGRA VERSUS UNION OF INDIA, A.I.R. 1958 S.C. Page 36, which is a megna cata of probation, where the Lordships have described the concept in the words that "An appointment to a permanent post in Government Service on probation means, as in the case of a personnel appointed by a private employer, that the servant so appointed is taken on trial. In view of the concept of probation discussed in the case of Parshotam Lal Dhingra (supra), it can safely be concluded that a probationer does not acquire any substantive right to the post and cannot complain if his service is terminated at any time during the probationary period i.e. before confirmation. It has been pointed out that a probationary appointment is, by its very nature of a transitory character and in the absence of any special contract or special rule regulating the condition of service, the implied term of such appointment is that it is terminable at any time. His/her right to continue will arise only on confirmation.

29. As indicated above, the service of a probationer can be confirmed on expiry of probationary period as available under the service rules. On confirmation, he attains a substantive status and all incidents of such status are immediately attracted. Once confirmed, the services of a person holding a civil post can only be terminated in accordance with his condition of service or rules which are constitutionally valid. If he or she is to be dismissed or removed or reduced in rank i.e. inflicted with punishment, then provisions of Article 311 have

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to be complied with. Thus, we have to see the law under which the services of a probationer can be lawfully brought to an end before the expiry of probation period by way of passing of a simpliciter termination order. But it is also true that the termination will be illegal if it was really brought about to punish the employee for misconduct or the termination casts a stigma on him. It has already been seen that transitory character of probationary appointment carries with it by necessary implication the consequence that it is terminable at any time as has been held by the Lordships in the case of Parshotam Lal Dhingra (supra). It has, therefore, been consistently held that a probationary employee whose services have been terminated for unsuitability for the job, cannot complain about such termination and such a termination has been judicially labelled as a simpliciter termination. During the period of probation, the authorities are entitled to assess the suitability of the candidates and if it is found that the candidate is not suitable to remain in service, they are entitled to record a finding of unsatisfactory performance of the work and duties during the period of probation and, for this purpose, the performance of the probationer has to be looked into and if the finding is that the performance has been unsatisfactory then the employer would be entitled to terminate the services of the probationer without conducting any enquiry as held in the case of KUNWAR ARUN KUMAR VERSUS U.P. HILL

ELECTRONICS CORPORATION LIMITED, (1997 (1)SLR

136(SC). No opportunity of hearing is required to be given to

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probationer for dismissal during probationary period and therefore, question of violation of natural justice does not arise in the given facts of the case. In Parshotam Lal Dhingra case, the Lordships pointed out that the protection of Article 311 also covers a probationer and that although a probationer cannot complain in the case of a termination simpliciter he can legitimately do so if the termination is by way of punishment. The Court pointed out that a termination founded on inefficiency or other disqualification is a punishment because it puts indelible stigma on the officer affecting his future career. This proposition was reiterated by the Hon'ble Apex Court in the case of STATE OF BIHAR VERSUS GOPI KISHORE PRASAD,

AIR 1960 S.C. Page 689, where the probationer was discharged from service on enquiry as being unsuitable for the post on grounds of notoriety for corruption and unsatisfactory work in the discharge of his public duties. After referring to Parshotam Lal Dhingra's case, Hon'ble Chief Justice Mr. B.P.Sinha, speaking for the Constitution Bench summarised the legal position relating to discharge of a probationary public servant as follows:-

"Appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated, without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant, or removing him from service.

" The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment.

" But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his

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competence and thus affects his future career in such a case, he is entitled to the protection of Article 311(2) of the Constitution.

"In the last mentioned case, if the probationer is discharged on any one of those grounds without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will amount to a removal from service within the meaning of Article 311(2) of the Constitution and will, therefore, be liable to be struck down.

"But, if the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct , or inefficiency, or some such cause".

30. Thus, the judgment passed in the case of Parshotam Lal Dhingra (supra), would suggest that where the Government by reason of the facts and circumstances of the case takes the view that a simple termination of service was not enough and that the conduct of the servant has been such that he deserves a punishment entailing penal consequences and thereafter chooses to proceed against servant on the basis of his misconduct, negligence, inefficiency or the like and inflicts on him any of the punishments contemplated by Article 311 then the protection of that Article would be available to such a servant. It was thus, rightly observed that such a termination for misconduct etc. "puts an indelible stigma on the officer affecting his future career." The Court puts on the theory that a termination by way of punishment was different from a termination simpliciter and in identifying a termination by way of punishment, the Court emphasized the test of suffering of penal consequences or forfeiture of rights as the crucial indicators. The logical dilemma involved was that the

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probationer could suffer no penal consequences nor could thereby any question of forfeiture of any of his rights since according to the Court, he had no right to hold the post at the first instance. Stigma, therefore, was not initially considered as an independent concept or a ground by itself for holding that the termination was by way of punishment. However, the point that it is the punishment which results in stigma and that the punishment is for misconduct which attaches stigma has not been strictly kept in view even by the Hon'ble Apex Court in subsequent decisions.

31. Even in the case of STATE OF U.P. VERSUS RAM CHANDRA TRIVEDI, AIR 1976 S.C. Page 2547, the Court after finding that the order of termination in that case was by way of termination simpliciter went on to observe that the order did not cast any stigma on the probationer nor did it visit him with any evil consequences nor was it founded on misconduct. The topic of termination of service of probationer was again extensively reviewed by the Hon'ble Apex Court in the case of

DIPTI PRAKASH BANERJEE, (supra) where the Lordships have pointed out that the stigma might be inferred from the references quoted in the termination order although the order itself might not contain anything offensive. They have held that if the termination is a result of any enquiry other than that of his work and conduct during the probation, then the Court can go behind the wall to know the reasons and to protect the probationer and do not allow the employer to terminate the services of a probationer without holding a regular enquiry.

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32. Now examining the case in hand, in the light of rules and law on the subject, admittedly, the applicants came to appointed in the year 2015 precisely on 13.8.2015 and they were put on probation for a period of two years and before their period of probation could expire, it was extended and ultimately vide order dated 13.8.2018 (Annexure A-1) their services were terminated. The argument raised by the learned counsel for the applicants is that the respondents could not dispense with their services during the period of probation, on the ground other than that of their suitability, as provided in rules. Since their services have been terminated, which is based upon an enquiry by the SIT, thus, the impugned orders are liable to be interfered with and are to be quashed by this Court based upon the law laid down in the case of Parshotam Lal Dhingra and Dipti Prakash Banerjee (supra). The plea, apparently appears to be having force and deserves to be accepted. Admittedly, the basis of impugned order is two FIRs, the report of SIT and view of Committee based upon the report of the SIT which was apparently done behind the back of the affected persons and the respondents have terminated the services of the applicants by cancelling the selection based upon the written test conducted from 14.2.2015 to 28.2.2015. Once the motive behind the termination of the services of the applicants is an FIR dated 29.7.2016 registered under Sections 409/420/120-B of IPC and Sections 8/9/13 of Prevention of Corruption Act, 1988, which was in turn was deliberated by SIT, where the allegations are that since the paper has been

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leaked before the scheduled examination as per the disclosure statement, at the initial stage itself, from printing press, and thus it has travelled to hundred hands, thus, to have a fair game, decision was taken to dispense with their services with a rider to give a chance to appear in a fresh test and if they are able to make out, then they will be taken back in service with full benefits. The phrase that the respondents have used, while dispensing with the services of the applicants, cannot be approved because by this order, they have terminated the services of all selected candidates by levelling them as tainted as the persons, who secured appointment by illegal or irregular method. To prove their innocency, they have not even been given a chance to defend. Thus, effectively, all those candidates who were found eligible and offered appointment stand branded as culprits or in other words accused who have to re- appear in the written test and if they pass, the stigma will be removed otherwise they will carry stigma for entire life that they had secured appointment by unfair means. Thus, apart from 49 candidates against whom an FIR has been registered and have been termed as tainted, others whose names are not there, have also been kept in same bracket, without their being any fault on their part having been pinpointed by respondents. Merely if some of them are found to have indulged in an illegal procedure for securing appointment, which is not known to others, the entire lot cannot be penalized for the sin of few as it would be travesty of justice.

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33. The fundamental principle of punishment in India in criminal cases is that an accused cannot be punished unless proven guilty beyond reasonable doubt and he can be convicted only after a fair trial. Declaring a person guilty without providing him / her an opportunity of being heard will create havoc in the lives of innocent citizens by implicating them in false offences. Such a person if convicted, may not only lose jobs, family reputation and in effect, the very foundation of right to live with dignity would be taken away, as guaranteed under Article 21 of the Constitution of India.

34. Thus, we have no hesitation in holding that order terminating the services of a probationer on a ground, other than of his/her conduct, during the probation period, cannot be allowed to sustain. It is also not in dispute, as noted in the preceding paras, that their services have been terminated during the probation period. There is no whisper that their work and conduct is not satisfactory, rather, they have been thrown out of service on a report of SIT, which was concluded based upon two FIRs on a disclosure statement by an accused in some other selection namely PUNSUP, Punjab, and without recording any reason on their conduct during the probation period, the impugned orders have been passed, which to our mind, cannot sustain in view of the law laid down in the cases of Parshotam Lal Dhingra and Dipiti Prakash Banerjee(supra).

VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND

NON ADHERENCE TO ARTICLE 311(2) OF THE

CONSTITUTION.

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35. Now coming to the basic issue of violation of principles of natural justice having taken place in the case in hand. Even during the course of the argument, the respondents have failed to brought anything on record or to bring to our notice that apart from SIT, the respondents have conducted any inquiry to found out that paper has been leaked or travelled to hundreds of candidates and as such they have cancelled entire examination, because the impugned orders are very clear that these are entirely based on reports of SIT, which are based on FIRs, which are further based on a disclosure statement. Once they have yet to identify tainted and segregate the innocents, they cannot justify their action. Admittedly, the action of the respondents, on the face of it, appears to be based on no evidence. They have failed to satisfy this Court, that they have conducted any enquiry to segregate the innocents from the tainted candidates. Not only that, they have also failed to satisfy as to how they can dispense with the principles of natural justice under Article 311(2) of the Constitution of India. It is not a case that the services of the applicant have been terminated by a simplicitor order as the same contains the motive, as well as foundation and that is that entire selection is based on perceived cheating/leakage of paper on the basis of a disclosure statement of an accused in some other case relating to PUNSUP. The orders clearly indicate that the disclosure statement, followed by two FIRs, SIT Report and recommendation of a Committee became basis for dispensing with the services of the applicants. Merely, mention of words

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that "decision will not cast any personal stigma on any of the candidate" would not make the orders as legal, when same are illegal on the face of it, as these cast stigma upon the applicants. In that view of the matter, the respondents could not adopt a short cut method to terminate the services of the applicants. Rather, it was obligatory for them to have followed the principles of natural justice enshrined in Article 311(2) of the Constitution of India, by conducting a proper enquiry and thereafter to pass the necessary orders.

36. It was vehemently argued that the action of respondents being in violation of basic principle of natural justice is liable to be quashed and set aside. Reliance has been placed by learned counsel for applicants on SHAMSHER SINGH VS. STATE OF PUNJAB & OTHERS, 1974 (2) SLR, 701 SC. M.P. STATE COOP. BANK LTD. VS. NANU RAM YADAV & OTHERS, 2007

(4) SCT 764 SC. HARYANA STATE COOP. LAND DEV. BANK

VS. SUNIL DUTTA & OTHERS, 2002(7) SLR 257 (P&H),

INDRA PAL GUPTA VS. M.C.MODEL INTER COLLEGE &

OTHERS, 1984 (2) SLR, 422 SC. KUMAOU MANDAL VIKAS

NIGAM LTD,. VS. GIRJA SHANKAR, 2001(1) SCT 607 SC.

K.I. SHEPHARD VS. UOI ETC. 1987 SCC (L&S) 438. M/S

NAGARJUNA CONSTRUCTION CO. LTD. VS. GOVT. OF A.P.

2008(12) JT 371 SC. STATE OF ORISSA VS. DR. BINAPANI

DEI & OTHERS, 1967 AIR SC 1269. HINDU COLLEGE, SONEPAT VS. SADHU RAM SAINI, 1992(2) SCT 603, P&H).

SANJAY SINGH & ANOTHER VS. UP PSC, JT 2007 (2) 534 SC. D.K. YADAV VS. J.M.A. INDUSTRIES LTD, as over ruled

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in STATE OF U.P. VS. ABHAI KISHORE MASTA, 1993 (4) SLR 126 SC and JAGDISH MITTER VS. UOI AIR 1964 SC

449.

37. The concept and doctrine of principles of natural Justice and its application in Justice delivery system is not new. It seems to be as old as the system of dispensation of justice itself. It has by now assumed the importance of an essential inbuilt component of the mechanism, through which decision making process passes, in the matters touching the rights and liberty of the people. It is no doubt, a procedural requirement but it ensures a strong safeguard against any Judicial or administrative order or action, adversely affecting the substantive rights of the individuals. The very fundamental element of the "rule of law", is that no man should be condemned unheard which emanates from the maxim of "audi alteram partem", which literally means, listen to the other side. This maxim has resulted in all democracies enshrining this principle as a constitutional right, espousing this principle to mean the right to a fair trial, which may even be extended to non-citizens facing criminal charges within the jurisdiction of the country concerned. One of the pillars of the right to a fair trial, is to ensure procedural fairness, for it is believed that a court or tribunal adjudicating on a particular issue, if compelled to act in a procedurally fair manner, will obviously arrive at a just decision. An arbitrary act is implicitly violative of the right to equality guaranteed by Article 14 of the Constitution of India. Indian courts have therefore very rightly intervened, in no

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uncertain terms, in situations where lack of procedural fairness impinges on the right of a party to be fully heard. If this is not done, the process of seeking justice could result in injustices. If the case of any party is not allowed to be fully set out, the adjudication that follows must be struck down, for it is a natural law of justice that the adjudication follows only after the case of the litigants is presented and considered. This in short is called the rule of "the principles of natural justice". It follows from Article 14 of the Constitution but the principles of procedural fairness, and the right to be heard, are so fundamental to the dispensation of justice, that Hon'ble Supreme Court has in fact propounded that these principles would naturally exist even in the absence of Article 14 of the Constitution.

38. In the celebrated case of MANEKA GANDHI V. UNION OF INDIA [(1978) 1 SCC 248], Justice Bhagawati noted this to be, "a great humanising principle", and went on to hold that procedural fairness is implied even in situations where the statute does not provide for it, thus adopting the lofty concept set out by Byles J. in COOPER V. WANDSWORTH BOARD OF WORKS [(1863) 143 ER 414]. Thus, in A. K. KRAIPAK & ORS. VS. UNION OF INDIA & ORS. AIR 1970 SC 150, a Constitution Bench held : "The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet csse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram

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partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice". In the case of UNION OF

INDIA AND ANOTHER VS TULSIRAM PATEL AND OTHERS

[(1985) 3 SCC 398], the Supreme Court observed that Article 14 did not create the principles of natural justice, but rather that Article 14 is only their constitutional guardian. Again, in

GURDIAL SINGH FIJI V. STATE OF PUNJAB & ORS., 1979

(3) SCR 518: 1979(2) SCC 368, in para 18, the Court has held that "….. "Reasons", according to Beg J. (with whom Mathew J. concurred) "are the links between the materials on which certain conclusions are based and the actual conclusions". The Court accordingly further held that an officer was "not found suitable" is the conclusion and not a reason in support of the decision to supersede him. The Selection Committee must at least state, as briefly as it may, why it came to the conclusion that the officer concerned was found to be not suitable for inclusion in the Select List. In the absence of any such reason, the conclusion that the Selection Committee had another

"reason" for not bringing the appellant on the Select List cannot be sustained in the eyes of law.

39. The aforesaid decision was followed in K. I. SHEPHARD & ORS. VS. UNION OF INDIA & ORS. AIR 1988 SC 686. It was held in this decision that even administrative acts have to be in accordance with natural justice if they have civil

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consequences. It was also held that natural justice has various facets and acting fairly is one of them.

40. In KUMAON MANDAL VIKAS NIGAM LTD. VS. GIRJA SHANKAR PANT AIR 2001 SC 24, the Apex Court held that the doctrine (natural justice) is now termed as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action". In the same decision it was also held following the decision of Tucker, LJ in

RUSSELL VS. DUKE OF NORFOLK (1949) 1 All ER 109: "The requirement of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject- matter that is being dealt with, and so forth".

41. In SWADESH COTTON MILLS ETC. VS. UNION OF INDIA ETC. AIR 1981 SC 818, the Apex Court following the decision in MOHINDER SINGH GILL & ANR. VS. THE CHIEF ELECTION COMMISSIONER & ORS. AIR 1978 SC 851 held that the soul of the rule (natural justice) is fair play in action. A five-judge bench in M.S. GILL V. CHIEF ELECTION COMMISSIONER [(1978) 1 SCC 405], had re-iterated the principle saying that, the dichotomy between administrative and quasi-judicial functions vis-à-vis the doctrine of natural justice is presumably obsolescent after Kraipak in India, and Schmidt in England. In the landmark case of S.L. KAPOOR V. JAGMOHAN & ORS. [AIR 1981 SC 136(1)], the question that arose is whether the rules of natural justice should be followed

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even when there are undisputed facts that speak for themselves, since no purpose would be served by following the process of formal notice, as the result would ultimately be the same. The Supreme Court concluded that "merely because facts are admitted or are indisputable it does not follow that natural justice need not be observed." In the obiter, the Supreme Court seems to have carved out an exception in a situation where, on admitted or indisputable facts, only one conclusion is possible, and one penalty permissible, in which case the court may not issue its writ to compel observance of natural justice. However, it proceeded to clarify that the court in such a case may not interfere not because the need for natural justice is dispensed with, but only because courts do not issue writs that are futile. It then proceeded to clarify that such dispensation would be pernicious to apply in situations where conclusions are controversial, however slightly, and penalties are discretionary, and accordingly concluded that absence of prejudice is not sufficient grounds to dispense with the rules of natural justice. In that case, the Supreme Court also clarified what may be considered to be a civil consequence, and stated that everything that affects a citizen in his civil life, inflicts a civil consequence. In LIBERTY OIL MILLS & ORS. V. UOI & ORS., (1984) 3 SCC 465, Larger Bench of the Apex Court has held a .....We do not think that it is permissible to interpret any statutory instruments so as to exclude natural justice, unless the language of the instrument leaves no option to the court. Similar view was taken in 1986 (3) SCC 103 RAM CHANDAR

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VS. UNION OF INDIA & ORS., 2010 (11) SCC 278 INDU BHUSHAN DWIVEDI VS. STATE OF JHARKHAND & ORS., and 2010 (9) SCC 496 KRANTI ASSOCIATES PVT. LTD. VS. MASOOD AHMED KHAN & ORS. In the case of Indu Bhushan Dwivedi (supra) it was held that "one of the basic canons of justice that no one can be condemned unheard and no order prejudicially affecting any person can be passed by a public authority without affording him reasonable opportunity to defend himself or represent his cause. As a general rule, an authority entrusted with the task of deciding lis between the parties or empowered to make an order which prejudicially affects the rights of any individual or visits him with civil consequences is duty bound to act in consonance with the basic rules of natural justice including the one that material sought to be used against the concerned person must be disclosed to him and he should be given an opportunity to explain his position. This unwritten right of hearing is fundamental to a just decision, which forms an integral part of the concept of rule of law. This right has its roots in the notion of fair procedure. It draws the attention of the authority concerned to the imperative necessity of not overlooking the cause which may be shown by the other side before coming to its decision. When it comes to taking of disciplinary action against a delinquent employee, the employer is not only required to make the employee aware of the specific imputations of misconduct but also disclose the material sought to be used against him and give him a reasonable opportunity of explaining his position or defending

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himself. If the employer uses some material adverse to the employee about which the latter is not given notice, the final decision gets vitiated on the ground of the violation of the rule of audi alteram partem. Even if there are no statutory rules which regulate holding of disciplinary enquiry against a delinquent employee, the employer is duty bound to act in consonance with the rules of natural justice"

42. Now we proceed to discuss the rules and law in that relevant connection. Article 311 of the Constitution of India gives protection to an employee who is appointed on regular basis that his services cannot be dispensed with or terminated without holding a regular enquiry. For that Article 311 assumes its significance, which reads as under:-

"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State

(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry

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(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause ( 2 ), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final"

43. A perusal of the above extraction, makes it clear that no employee shall be dismissed or removed by a authority subordinate to that by which he/she was appointed, and no such person shall be dismissed or removed or reduced in rank except after an inquiry in which he/she has been informed of the charges against him/her and given a reasonable opportunity of being heard in respect of those charges Provided that where it is proposed after such inquiry, to impose upon him/her any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity. However, an exception has been carved out where the employee can be straightway dismissed from service by dispensing with enquiry, but the disciplinary authority has to record reasons for not holding enquiry. Way back in the year 1961 in the case of

STATE OF MADHYA PRADESH VERSUS CHINTAMAN

SADASHIVA WAISHAMPAYAN, AIR 1961 SC Page 1623, the Lordships have held that when an order of dismissal passed against a public servant is challenged by him in a petition filed in the High Court under Article 226 of the Constitution of India, it is for the High Court to consider whether the constitutional requirements of Article 311(2) have been satisfied or not. In short, the Hon'ble Apex Court opined as under :-

"10. Mr. Khaskalam has strenuously contended before us that in not supplying the copies of the documents asked for by the

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respondent the enquiry officer was merely exercising his discretion, and as such it was not open to the High Court to consider the propriety or the validity of his decision. In support of this argument he has referred us to the decision of the Patna High Court in Dr. Tribhuwan Nath v. State of Bihar, AIR 1960 Pat 116. In that case the public officer wanted to have a copy of the report made by the anti-corruption department as a result of a confidential enquiry made by it against the said officer; and the enquiry officer had rejected his prayer. When it was urged before the High Court that the failure to supply the copy of the said report constituted a serious infirmity in the enquiry and amounted thereby to a denial of a reasonable opportunity to the public officer, the High Court repelled the argument, and held that the officer was not entitled to a copy of the report unless that report formed part of the evidence before the Enquiry Commissioner and was relied upon by him. "When, however, the report was not at all exhibited in the case, nor was it referred to nor relied upon by the Commissioner", said the High Court, "there was no meaning in contesting it, and consequently absence of opportunity to meet its contents involved no violation of constitutional provisions". In our opinion, this decision cannot assist the appellant's case because, as we have already pointed out, the documents which the respondent wanted in the present case were relevant and would have been of invaluable assistance to him in making his defence and cross- examining the witnesses who gave evidence against him. It cannot be denied that when an order of dismissal passed against a public servant is challenged by him by a petition filed in the High Court under Article 226 it is for the High Court to consider whether the constitutional requirements of Article 311(2) have been satisfied or not. In such a case it would be idle to contend that the infirmities on which the public officer relies flow from the exercise of discretion vested in the enquiry officer. The enquiry officer may have acted bonafide but that does not mean that the discretionary order passed by him are final and conclusive. Whenever it is urged before the High Court that as a result of such orders the public officer has been deprived of a reasonable opportunity it would be open to the High Court to examine the matter and decide whether the requirements of Article 311(2) have been satisfied or not. In such matters it is difficult and inexpedient to lay down any general rules; whether or not the officer in question has had a reasonable opportunity must always depend on the facts in each case. The only general statement that can be safely made in this connection is that the departmental enquiries should observe rules of natural justice and that if they are fairly and properly conducted the decisions reached by the enquiry officers on the merits are not open to be challenged on the ground that the procedure followed was not exactly in accordance with that which is observed in Courts of Law. As Venkatarama Aiyar, J. has observed in Union Of India v. T.R Varma ., 1958 SCR 499 at p. 507 : (S) AIR 1957 SC 882 at p. 885) "stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them". It is hardly necessary to emphasise that the right to cross-examine the witnesses who give evidence against him is a very valuable right, and if it appears that effective exercise of this right has

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been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with rules of natural justice. That is the view taken by the High Court, and in the present appeal which has been brought to this Court under Article 136 we see no justification for interfering with it. In this connection it would be relevant to refer to the decision of this Court in Khem Chand v. Union of India, 1953 SCR 1080 : AIR 1958 SC 300 where this Court has emphasize the importance of giving an opportunity to the public officer to defend himself by cross- examining the witnesses produced against him."

44. In the case of UNION OF INDIA VERSUS H. C. GOEL

AIR 1964 SC 364, the Lordships of Hon'ble the Supreme Court have held that in dealing with a writ petition filed by public servants who have been dismissed, or otherwise dealt with so as to attract Article 311 (2), the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. Their Lordships have held as under:-

"20. This conclusion does not finally dispose of the appeal. It still remains to be considered whether the respondent is not right when he contends that in the circumstances of this case, the conclusion of the Government is based on no evidence whatever. It is a conclusion which is perverse and-, therefore, suffers from such an obvious and patent error on the face of the record that the High Court would be justified in quashing it. In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Art. 311 (2), the High Court under Art. 226 has Jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charge framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings which is the basis of his dismissal is based on no evidence. In fact, in fairness to the learned Attorney-General, we ought to add that he did not seriously dispute this, position in law."

45. The Lordships of Hon'ble the Supreme Court while dealing with the similar issue in the case of STATE OF ASSAM VERSUS

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MOHAN CHANDRA KALITA AND ANOTHER AIR 1972 SC

2535, have held that charges cannot be sustained if the opinion is based on conjectures and there was no evidence against the delinquent. The relevant paragraphs of the judgment are extracted below:-

"6. As we said earlier, there was no charge against the respondent that he had not paid the full amounts to those entitled to compensation or that he had authorised anyone to collect any fee. This enquiry into extraneous allegations with which the respondent was not charged must have certainly prejudiced the enquiry officer against the respondent. Even if we were to ignore this aspect, there is no evidence to connect the respondent with the allegation that he had authorised the collection of Garibhara much less can it be said, as averred in the charge, that he realised from those persons to whom compensation was being paid certain percentage of compensation money due to them for payment of hire charges of the vehicle in which he had visited the office of the Mauzadar from Dhekiajuli.

xx xx xx

8. This evidence does not establish that the S.D.C. had either authorised the collection or that the amount was collected at his instance or that he even connived at it. On the other hand as the A.D.M. Deka admitted, when he asked Tajimudin he informed him that the amount was being collected at the instance of Hiren Saika who immediately on seeing him ran away. According to Tajimudin, two other persons, namely, Mohidar Deka and Moniram Gaonbura were also collecting Garibhara amounts. It appears to us that because compensation amounts were being paid everyone was trying to collect whatever he could from those recipients. There was no need for the respondent to collect any money for payment of taxi charges because he could recover those from the Government and in fact he had recovered that amount from the government. There is no dispute that he did express his difficulty in finding a conveyance to come to Missamari as indeed he had to come there on that day in a school bus. He was not sure whether he could get a conveyance to come there the next day and naturally he informed those concerned that if he cannot get any conveyance and come there they should go to Dhekiajuli. It is at that stage that they suggested that he should come in a taxi and they will pay for it; but this did not imply that the S.D.C. had consented to anyone collecting moneys for the hire or much less permit them to pay for the hire on his behalf. All this merely shows that the suggestion that they should come to Dhekiajuli would seriously inconvenience them and they were even prepared to pay his taxi fare if he came to Missamari. Their earnest entreaties must have persuaded the S.D.C. to come there in a taxi. Beyond this, there is no evidence to show that he had wanted them to pay for his taxi or authorised them to collect money for it. The High Court was therefore right in quashing the order of the A.D.M. Tezpur on the ground that there was no evidence to sustain the charge."

46. In the case of BHAGAT RAM VERSUS STATE OF

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HIMACHAL PRADESH AND OTHERS 1983 (2) S.C.C. 442, the Lordships of Hon'ble the Supreme Court have held that where principles of natural justice are violated, writ of certiorari can be issued by the High Court. The opinion of the Lordships is extracted below:-

"10. Let us make it abundantly clear that we are not sitting in appeal over the findings of the Enquiry Officer. In a petition under Article 226, the High Court does not function as a court of appeal over the findings of Disciplinary Authority. But where the finding is utterly perverse, the court can always interfere with the same. We may refer in this connection to Union Of India v. H.C Goel . 1964 (4) SCR 728, Gajendragadkar, J. speaking for the Court observed as under:

It still remains to be considered whether the respondent is not right when he contends that in the circumstances of this case, the conclusion of the Government is based on no evidence whatever. It is a conclusion which is perverse and, therefore, suffers from such an obvious and patent error on the face of the record that the High Court would be justified in quashing it. In dealing with writ petitions filed by the public servants who have been dismissed, or otherwise dealt with so as to attract Article 311(2), the High Court Under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charge framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said" proceedings which is the basis of his dismissal is based on no evidence.

After applying this test in that case, the court proceeded to have a close look at the evidence that was led in the case and in the circumstances of the case rejected the evidence of Shri Rajagopalan, who ; claimed to have given the bribe and reached the conclusion that the finding of the Government holding the delinquent officer guilty of accepting bribe was perverse and unsupported by any evidence. More or less ; the facts before us almost lead to the same conclusion. xx xx xx

13. That conclusion poses another question as to what relief we should give in this appeal. Ordinarily where the disciplinary enquiry is shown to have been held in violation of principle of natural justice, the enquiry would be vitiated and the order based on such enquiry would be quashed by issuance of a writ of certiorari. It is well settled that in such a situation, it would be open to the disciplinary authority to hold the enquiry afresh. That would be the normal consequence. xx xx xx

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15. The question is once we quash the order, is it open to us to give any direction which would not permit a fresh enquiry to be held ? After all what is the purpose of holding a fresh enquiry. Obviously, it must be to impose some penalty. It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. Having been influenced by all these relevant considerations, we are of the opinion that no useful purpose would be served by a fresh enquiry. What option is open to us in exercise of our jurisdiction under Article 136 to make an appropriate order. We believe that justice and fair play demand that we make an order of minor penalty here and now without being unduly technical apart jurisdiction, we are fortified in this view by the decision of this Court in Hindustan Steels Ltd., Rourkela v. A. K. Roy 1969 (3) SCC 513 where this Court after quashing the order of reinstatement proceeded to examine whether the party should be left to pursue further remedy. Other alternative was to remand the matter that being a case of an industrial dispute to the Tribunal. It is possible that on such a remand, this Court further observed, that the Tribunal may pass an appropriate order but that would mean prolonging the dispute which would hardly be fair to or conducive to the interest of the parties. This Court in such circumstances proceeded to make an appropriate order by awarding compensation. We may adopt the same approach. Keeping in view, the nature of misconduct, gravity of charge and no consequential loss, a penalty of withholding his increments with future effect will meet the ends of justice. Accordingly, two increments with future effect of the appellant be withheld and he must be paid 50% of the arrears from the date of termination till the date of reinstatement."

47. In the case of TULSIRAM PATEL, (supra), the Lordships of Hon'ble Supreme Court have held that dispensation of inquiry under Clause (b) of Second Proviso to Article 311 (2) is not to be done lightly or arbitrarily by the Disciplinary Authority. The decision of the Authority is to be justiciable. The Lordships have also held that the inquiry can be dispensed with even during the course of inquiry. The Lordships have also held that the reasons of dispensation of disciplinary inquiry must be recorded. The reasons need not contain detailed particulars but must not be vague or just repetition of language of proviso. The Lordships have also held that there is no obligation that the reasons be communicated to the government servant. It is,

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however, better that they are communicated. Relevant paras therefrom are extracted as under:-

"125. Some of the orders impugned before us refer only to one or the other of the three clauses of the second proviso to Article 311 (2) for dispensing with an inquiry without referring to the relevant service rule, some refer both to a clause of the second proviso and the relevant service rule, while the others refer only to the relevant service rule without making any mention of the particular clause of the second proviso which has been applied. The question is whether the omission to mention the particular clause of the second proviso or the relevant service rule makes any difference.

xx xx xx

132. It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a government servant. Such a situation can also come into existence subsequently during the course of an inquiry, for instance, after the service of a charge-sheet upon the government servant or after he has filed his written statement thereto or even after evidence has been led in part. In such a case also the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word "inquiry" in that clause includes part of an inquiry. It would also not be reasonably practicable to afford to the government servant an opportunity of hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it the government servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority. Therefore, even where a part of an inquiry has been held and the rest is dispensed with under clause (b) or a provision in the service rules analogous thereto, the exclusionary words of the second proviso operate in their full vigour and the government servant cannot complain that he has been dismissed, removed or reduced in rank in violation of the safeguards provided by Article 311 (2).

133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional.

134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must proceed the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particular, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no

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compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances." (emphasis supplied)

48. In the case of Workmen of HINDUSTAN STEEL LIMITED & ANOTHER VERSUS HINDUSTAN STEEL LIMITED & ORS., 1984 (Supp.) S.C.C. Page 554, it was held that reasons for satisfaction regarding dispensing with inquiry should be germane to the issue. Thereafter in the case of

SATYAVIR SINGH & ORS. VERSUS UNION OF INDIA & ORS. 1985(4) S.C.C. Page 252, the Lordships of the Hon'ble Apex Court while interpreting clause (b) of the second proviso to Article 311(2) and Rule 19 (ii) of the CCS (CCA) 1965 Rules, culled out the principles laid down in Tulsiram Patel's case (supra) have held as under :-

"XI. Clause (b) of the Second Proviso

(55) There are two conditions precedent which must be satisfied before clause (b) of the second proviso to Article 311

(2) can be applied. These conditions are:

(i) there must exist a situation which makes the holding of an inquiry contemplated by Article 311 (2) not reasonably practicable, and

(ii) the disciplinary authority should record in writing its reason for its satisfaction that it is not reasonably practicable to hold such inquiry.

(56) Whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so.

(57) It is not a total or absolute impracticability which is required by clause (b) of the second proviso. What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation.

(58) The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority and must be judged in the light of the circumstances then prevailing. The disciplinary authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of the prevailing situation that

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clause (3) of Article 311 makes the decision of the disciplinary authority on this question final.

(59) It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry. Illustrative cases would be -

(a) where a civil servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so, or

(b) where the civil servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held, or

(c) where an atmosphere of violence or of general indiscipline and insubordination prevails, it being immaterial whether the concerned civil servant is or is not a party to bringing about such a situation. In all these cases, it must be remembered that numbers coerce and terrify while an individual may not.

(60) The disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the civil servant is weak and must fail.

(61) The word "inquiry" in clause (b) of the second proviso includes a part of an inquiry. It is, therefore, not necessary that the situation which makes the holding of an inquiry not reasonably practicable should exist before the inquiry is instituted against the civil servant. Such a situation can also come into existence subsequently during the course of the inquiry, for instance, after the service of a charge sheet upon the civil servant or after he has filed his written statement thereto or even after evidence has been led in part.

(62) It will also not be reasonably practicable to afford to the civil servant an opportunity of a hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it, the civil servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority.

(63) The recording of the reason for dispensing with the inquiry is a condition precedent to the application of clause

(b) of the second proviso. This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. It is, however, not necessary that the reason should find a place in the final order but it would be advisable to record it in the final order in order to avoid an allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated.

(64) The reason for dispensing with the inquiry need not contain detailed particulars but it cannot be vague or just a repetition of the language of clause (b) of the second proviso.

(65) It is also not necessary to communicate the reason for dispensing with the inquiry to the concerned civil servant but

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it would be better to do so in order to eliminate the possibility of an allegation being made that the reason was subsequently fabricated.

(66) The obligation to record the reason in writing is provided in clause (b) of the second proviso so that the superiors of the disciplinary authority may be able to judge whether such authority had exercised its power under clause (b) properly or not with a view to judge the performance and capacity of that officer for the purposes of promotion etc.

(67) It is, however, better for the disciplinary authority to communicate to the concerned civil servant its reason for dispensing with the inquiry because such communication would eliminate the possibility of an allegation being made that the reason had been subsequently fabricated. It would also enable the civil servant to approach the High Court under Article 226 or, in a fit case, the Supreme Court under Article

32.

(68) The submission that where a delinquent government servant so terrorizes the disciplinary authority that neither that officer nor any other officer stationed at that place is willing to hold the inquiry, some senior officer can be sent from outside to hold the inquiry cannot be accepted. This submission itself shows that in such a case the holding of an inquiry is not reasonably practicable. It would be illogical to hold that administrative work carried out by senior officers should be paralyzed just because a delinquent civil servant either by himself or along with or through others makes the holding of an inquiry by the designated disciplinary authority or inquiry officer not reasonably practicable.

(69) In a case falling under clause (b) of the second proviso it is not necessary that the civil servant should be placed under suspension until such time as the situation improves and it becomes possible to hold the inquiry because in such cases neither public interest nor public good requires that salary or subsistence allowance should be continued to be paid out of the public exchequer to the concerned civil servant. It would also be difficult to foresee how long the situation would last and when normalcy would return or be restored. In certain cases, the exigencies of a situation would require that prompt action should be taken and suspending a civil servant would not serve the purpose and sometimes not taking prompt action might result in the trouble spreading and the situation worsening and at times becoming uncontrollable. Not taking prompt action may also be construed by the trouble makers as a sign of weakness on the part of the authorities and thus encourage them to step up their activities or agitation. Where such prompt action is taken in order to prevent this happening, there is an element of deterrence in it but this is an unavoidable and necessary concomitance of such an action resulting from a situation which is not of the creation of the authorities.

(70) The contention that where an inquiry into the charges against a civil servant is not reasonably practicable, none the less before dispensing with the inquiry there should be a preliminary inquiry into the question whether the disciplinary inquiry should be dispensed with or not is illogical and is a contradiction in terms. If an inquiry into the charges against a civil servant is not reasonable practicable, it stands to reason that an inquiry into the question whether the disciplinary

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inquiry should be dispensed with or not is equally not reasonably practicable.

(71) Where a large group of members of the Central Industrial Security Force Unit posted at the plant of the Bokaro Steel Ltd. Indulged in acts of insubordination, indiscipline, dereliction of duty, abstention from physical training and parade, taking out processions, shouting inflammatory slogans, participating in the 'gherao' of supervisory officers, going on hunger strike and 'dharna' near the Quarter Guard and Administrative Building of the Unit, indulging in threats of violence, bodily harm and other acts of intimidation to supervisory officers and loyal members of the said Unit, and thus created a situation whereby the normal functioning of the said Unit of the Central Industrial Security Force was made difficult and impossible, the disciplinary authority was justified in applying clause (b) of the second proviso to those who were considered responsible for such acts. Clause (b) of the second proviso to Article 311 (2) was also properly applied in the cases of those members of the Central Industrial Security Force who were considered responsible for creating a similar situation at Hoshangabad.

(72) In cases such as the above, it is not possible to state in the order of dismissal the particular acts done by each of the members of the concerned group as such cases are very much like a case under Section 149 of the Indian Penal Code.

(73) In situations such as the one where a large group acting collectively with the common object of coercing those in charge of the administration of the Central Industrial Security Force and the Government to compel them to grant recoginition to their Association and to concede their demands, it is not possible to particularize in the orders of dismissal the acts of each individual member who participated in the commission of these acts. The participation of each individual might be of a greater or lesser degree but the acts of each individual contributed to the creation of a situation in which a security force itself became a security risk.

(74) Railway service is a public utility service within the meaning of clause (a) of section 2 of the Industrial Disputes Act, 1947, and the proper running of the railway service is vital to the country.

(75) Where, therefore, the railway employees went on an illegal all-India strike without complying with the provisions of Section 22 of the Industrial Disputes Act, 1947, and thereby committed an offence punishable with imprisonment and fine under section 26 (1) of the said Act and the situation became such that the railway services were paralysed, loyal workers and superior officers assaulted and intimidated, the country held to ransom, and the economy of the country and public interest and public good prejudicially affected, prompt and immediate action was called for in order to bring the situation to normal. In these circumstances, it cannot be said that an inquiry was reasonably practicable or that clause (b) of the second proviso was not properly applied. The fact that the railway employees may have gone on strike with the object of forcing the Government to meet their demands is not relevant because their demands were for their private gain and in their private interest and the railway employees were not entitled in seeking to have their demands conceded to cause untold hardship to the public and prejudicially affect

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public good and public interest and the good and interest of the nation.

(76) The quantum and extent of the penalty to be imposed in cases such as the above would depend upon the gravity of the situation at a particular centre and the extent to which the acts said to be committed by particular civil servants, even though not serious in themselves, in conjunction with acts committed by others contributed to bringing about the situation. The fact, therefore, that at a particular centre certain civil servants were dismissed from service while at some other centres they were only removed from service does not mean that the penalties were arbitrarily imposed."

49. Similar issue was considered by Hon'ble the Supreme Court in the case of JASWANT SINGH VERSUS STATE OF PUNJAB AND OTHERS 1991 (1) SCC 362. The Lordships have held that subjective satisfaction of the authority that it was not reasonably practicable to hold such inquiry is open to judicial review. The authority is obliged to show that its satisfaction was based on objective facts and in the absence of any independent material justifying reliance on clause (b) of the second proviso, the order of dismissal could not be sustained. The relevant extract of the aforesaid judgment are extracted below:-

"5. The impugned order of April 7, 1981 itself contains the reasons for dispensing with the inquiry contemplated by Article 311(2) of the Constitution. Paragraph 3 of the said order, which we have extracted earlier, gives two reasons in support of the satisfaction that it was not reasonably practicable to hold a departmental enquiry against the appellant. These are (i) the appellant has thrown threats that he 'with the help of other police employees will not allow holding of any departmental enquiry against him and (ii) he and his associates will not hesitate to cause physical injury to the witnesses as well as the enquiry officer. Now as stated earlier after the two Revision Applications were allowed on October 13, 1980, the appellant had rejoined service as Head Constable on March 5, 1981 but he was immediately placed under suspension. Thereafter, two show cause notices dated April 4, 1981 were issued against him calling upon him to reply thereto within 10 days after the receipt thereof. Before the service of these notices the incident of alleged attempt to commit suicide took place on the morning of April 6, 1981 at about 11.00 a.m.. In that incident the appellant sustained an injury on his right arm with a knife. He was, therefore, hospitalised and while he was in hospital the two show cause notices were served on him at about 10.00 p.m. on April 6, 1981. Before the appellant could reply to the said show cause notices the

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third respondent passed the impugned order on the very next day i.e. April 7, 1981. Now the earlier departmental enquiries were duly conducted against the appellant and there is no allegation that the department had found any difficulty in examining witnesses in the said inquiries. After the Revision Applications were allowed the show cause notices were issued and 10 days time was given to the appellant to put in his replies thereto. We, therefore, enquired from the learned counsel for the respondents to point out what impelled respondent No. 3 to take a decision that it was necessary to forthwith terminate the services of the appellant without holding an inquiry as required by Article 311 (2). The learned counsel for the respondents could only point out clause (iv)(a) of sub- para 29(A) of the counter which reads as under :

"The order dated 7-4-81 was passed as the petitioner's activities were objectionable, He was instigating his fellow police officials to cause indiscipline, show insubordination and exhibit disloyalty, spreading discontentment and hatred, etc. and his retention in service was adjudged harmful."

This is no more than mere reproduction of paragraph 3 of the impugned order. Our attention was not drawn to any material existing on the date of the impugned order in support of the allegation contained in paragraph 3 thereof that the appellant had thrown threats that he and his companions will not allow holding of any departmental enquiry against him and that they would not hesitate to cause physical injury to the witnesses as well as the enquiry officer if any such attempt was made. It was incumbent on the respondents to disclose to the Court the material in existence at the date-of the passing of the impugned order in support of the subjective satisfaction recorded by respondent No. 3 in the impugned order. Clause (b) of the second proviso to Article 311(2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. This is clear from the following observation at page 270 of Tulsi Ram's case :

"A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the Government servant is weak and must fail."

The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. In the counter filed by the third respondent it is contended that the appellant, instead of replying to the show clause notices, instigated his fellow police officials to disobey the superiors. It is also said that he threw threats to beat up the witnesses and the Inquiry officer if any departmental inquiry was held against him. No particulars are given. Besides it is difficult to understand

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how he could have given threats, etc., when he was in hospital. It is not shown on what material the third respondent came to the conclusion that the appellant had thrown threats as alleged in paragraph 3 of the impugned order. On a close scrutiny of the impugned order it seems the satisfaction was based on the ground that he was instigating his colleagues and was holding meetings with other police officials with a view to spreading hatred and dissatisfaction towards his superiors. This allegation is based on his alleged activities at Jullundur on April 3, 1981 reported by SHO/GRP, Jullundur. That report is not forthcoming. It is no one's contention that the said SHO was threatened. The third respondent counter also does not reveal if he had verified the correctness of the information. To put it tersely the subjective satisfaction recorded in paragraph 3 of the impugned order is not fortified by any independent material to justify the dispensing with the inquiry envisaged by Article 311 (2) of the Constitution. We are, therefore, of the opinion that on this short ground alone the impugned order cannot be sustained."

50. The Lordships of Hon'ble the Supreme Court in the case of CHANDIGARH ADMINISTRATION, UNION TERRITORY,

CHANDIGARH AND OTHERS VERSUS AJAY MANCHANDA

AND OTHERS 1996 (3) SCC 753, have held that decision of the empowered authority that holding of departmental inquiry was not reasonably practicable, would be challenged on the ground of absence of requisite satisfaction on the part of the empowered authority or the satisfaction having been formed mala fide. Para 4 of the judgment is extracted below:-

"4. It is true that clause (3) of Article 311 declares further that when a question arises whether it is reasonably practicable to hold an inquiry, the decision of the competent authority shall be final on that question. But that does not mean that the scope of judicial review is excluded altogether. In State Of Rajasthan v. Union Of India 1977 (3) S.C C.592, it was held that clause (5) of Article 356 (introduced by Constitution 38th Amendment Act and deleted by the 44th Amendment Act, which provided that: "notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause (1) shall be final and conclusive and shall not be questioned in any court on any ground.") does not preclude the court from entertaining the challenge to a notification under Article 356 (1) on the ground that the requisite satisfaction was formed malafide or that it was founded on extraneous grounds, because it was pointed out, in either of those cases, there is in law no satisfaction as contemplated by clause (1) of Article 356. It has been held by this Court in S.R.Bommai v Union of India (1994 (3) SCC I) that even in the matter of

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exercise of power under Article 356 of the Constitution, the satisfaction of the President, while undoubtedly subjective, is not beyond the judicial scrutiny of the courts under Article 32 or Article 226, as the case may be. The parameters of judicial review enunciated in S.R.Bommai have been held applicable in A. K. Kaul v. Union of India (1995 (4) S.C.C.73) to a matter arising under proviso (c) to Article 311 (2). A reading of clauses

(b) and (c) of the second proviso would establish that, if at all, the power under clause (b) is more circumscribed than the power under clause (c).

51. In the case of TARSEM SINGH VERSUS STATE OF PUNJAB AND OTHERS 2006 (13) Supreme Court Cases 581, the Lordships of Hon'ble the Supreme Court have held that subjective satisfaction of authority, must be based on objective criteria. The reasons for dispensing with the inquiry must be supported by documents. In absence of any material to show that it was necessary to dispense with the formal inquiry in terms of proviso (b) to Article 311 (2) it was held that order of dismissal dispensing with formal inquiry could not be sustained. Relevant paragraphs of the judgment are extracted below:-

"11. We have noticed hereinbefore that the formal enquiry was dispensed with only on the ground that the appellant could win over aggrieved people as well as witnesses from giving evidence by threatening and other means. No material has been placed or disclosed either in the said order or before us to show that subjective satisfaction arrived at by the statutory authority was based upon objective criteria. The purported reason for dispensing with the departmental proceedings is not supported by any document. It is further evident that the said order of dismissal was passed, inter alia, on the ground that there was no need for a regular departmental enquiry relying on or on the basis of a preliminary enquiry. However, if a preliminary enquiry could be conducted, we fail to see any reason as to why a formal departmental enquiry could not have been initiated against the appellant. Reliance placed upon such a preliminary enquiry without complying with the minimal requirements of the principle of natural justice is against all canon of fair play and justice. The appellate authority, as noticed hereinbefore, in its order dated 24.6.1998 jumped to the conclusion that he was guilty of grave acts of misconduct proving complete unfitness for police service and the punishment awarded to him is commensurate with the misconduct although no material therefor was available on record. It is further evident that the appellate authority also misdirected himself in passing the said order in so far as he failed to take into

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consideration the relevant facts and based his decision on irrelevant factors.

12. Even the Inspector General of Police in passing his order dated 26.11.1999, despite having been asked by the High Court to pass a speaking order, did not assign sufficient or cogent reason. He, like the appellate authority, also proceeded on the basis that the appellant was guilty of commission of offences which are grave and heinous in nature and bring a bad name to the police force of the State on the whole. None of the authorities mentioned hereinbefore proceeded on the relevant material for the purpose of arriving at the conclusion that in the facts and circumstances of the case sufficient cause existed for dispensing with the formal enquiry. This aspect of the matter has been considered by this Court in Jaswant Singh v. State of Punjab & Ors., AIR 1991 SC 385, wherein relying upon the judgment of the Constitution Bench of this Court, inter alia, in Union of India & Anr. v. Tulsiram Patel & Ors., 1985 (Supp) 2 SCR 131, it was held :

"Although clause (3) of that Article makes the decision of the disciplinary authority in this behalf final such finality can certainly be tested in a Court of law and interfered with if the action is found to be arbitrary or male fide or motivated by extraneous considerations or merely a ruse to dispense with the inquiry."

13. In that case also like the present one, the attention of the Court was not drawn to any material existing on the date of passing of the impugned order in support of the allegations contained in the order dispensing with the departmental enquiry.

14. In view of the fact that no material had been placed by the respondents herein to satisfy the Court that it was necessary to dispense with a formal enquiry in terms of proviso (b) appended to clause (2) of Article 311 of the Constitution of India, we are of the opinion that the impugned orders cannot be sustained and they are set aside accordingly. The appellant is directed to be reinstated in service. However, in view of our aforementioned findings, it would be open to the respondents to initiate a departmental enquiry against the appellant if they so desire. Payment of back wages shall abide by the result of such enquiry. Such an enquiry, if any, must be initiated as expeditiously as possible and not later than two months from the date of communication of this order."

52. When we apply the aforesaid legal principles to the facts of the present case, we find that the respondents have not offered any reply or explanation, what to talk of with cogent reasons, for dispensing with the enquiry as envisaged under Article 311 or their satisfaction for not holding a regular department enquiry. In fact the impugned orders show that

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the respondents had made up their mind not to conduct any inquiry and their view was swayed by the decisions of Hon'ble Apex Court mentioned in the order. They have not even recorded a finding that it is not possible to conduct an enquiry. They rely upon the three quoted cases, without discussing as to in what manner the same apply to the facts of the case in hand. The only explanation is that the ongoing investigation will take a long time. Can this be a reason for dispensing with enquiry or en mass setting aside the recruitment of applicants against whom there is no proven misconduct, except 43 candidates against whom FIRs have been lodged? May be on criminal side an investigation may take time but on departmental side, this enquiry may not take much time and the respondents could have conducted an enquiry. But they chose a short cut and easy method, giving a tool in the hands of the applicants to challenge the impugned orders.

53. In the peculiar facts and circumstances of this case, it can safely and easily be concluded that dispensing with the enquiry and coming to a conclusion for terminating the services of a probationer, which is based upon a confessional statement to a Police, and on an FIR, which was considered by the SIT and then terminating their services without holding a regular departmental enquiry, and not putting them to notice by following the principles of natural justice. Thus, we are of the view that the order also deserves to be quashed being violative of Article 311 of the Constitution of India as the action in cancelling the entire result and terminating the services of the

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selected applicants including un-tainted candidates, without offering them an opportunity to prove their innocence, which is not known to the service jurisprudence, cannot be sustained by a court of law. In short, we have no hesitation in holding that the classification done by respondents, of putting all the candidates in one bracket, to say the least is not proper and cannot be sustained on the touchstone of parameters laid down in Article 14 of the Constitution of India. It is well known that while Article 14 forbids class legislation, it does not forbid reasonable classification of persons, objects, and transactions by the legislature for the purpose of achieving specific ends. But classification must not be "arbitrary, artificial or evasive". It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislation. Classification to be reasonable must fulfill the two conditions namely, the classification must be founded on the intelligible differentia which distinguishes persons or thing that are grouped together from others left out of the group and secondly the differentia must have a rational relation to the object sought to be achieved by the act. The differentia which is the basis of the classification and the object of the act are two distinct things. What is necessary is that there must be nexus between the basis of classification and the object of the act which makes the classification. It is only when there is no reasonable basis for a classification that legislation making such classification may be declared discriminatory. The

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classification carried out by respondents in this case, cannot be approved of by this Tribunal.

54. The respondents have admittedly not cared to segregate the innocents from tainted ones, despite there being an identification of 49 persons against whom FIR has also been registered, but all the persons have been bracketed together and put in the same boat. This itself is a blame worthy act. They are being subjected to undergo a fresh test. If they fail in the retest, a stigma will follow them for life, that they had got the appointment by fraudulent means. Such an order will not sustain in view of law laid down in the case of Parshotam Lal Dhingra and Dipiti Prakash Banerjee (supra) and as per various judicial pronouncements, as noticed herein above. This Court has parallel power as of High Court and can interfere in such orders and if the order is stigmatic can quash the order of termination. Not only this, there is no explanation worth appreciation given in the impugned orders issued to the applicants. Apparently, the impugned orders are to be examined on the basis of the reasons given in same and not for explanation offered in written statement. The Hon'ble Apex Court in MOHINDER SINGH GILL VS. CHIEF ELECTION COMMISSIONER (1978) 1 SCC 405, has held that reasons have to be mentioned in the order itself. Relevant portion of the judgment reads as under:

"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds

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later brought out. We may here draw attention to the observations of Bose J. In Gordhandas Bhanji case : "Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself". Orders are not like old wine becoming better as they grow older."

The said view was followed recently by the Apex Court in

DIPAK BABARIA AND ANOTHER VS. STATE OF GUJARAT

AND OTHERS 2014 (3) SCC 502 and STATE OF PUNJAB VS. M/S BANDEEP SINGH & OTHERS 2016 (1) SCC 724 wherein it was held that the State cannot be allowed to supplement or improve its stand by way of filing affidavits.

55. Now adverting to the judicial pronouncements heavily relied upon by learned counsel for the respondents in support of the impugned orders. Learned counsel for respondents placed reliance upon decision in the case of CHAIRMAN ALL INDIA RAILWAY RECRUITMENT BOARD VS. K. SHYAM KUMAR & OTHERS, 2010 (6) SCC 614, in which it was, inter-alia, ruled that non supply of the copy of the Vigilance report to the candidates was a legal infirmity, cannot be sustained. The Petitioners (therein), had also no legal right to insist that they should be appointed to Group `D' posts. Final merit list was never published. No appointment orders were issued to the candidates. Even if a number of vacancies were notified for appointment and adequate number of candidates were found successful, they would not acquire any indefeasible right to be appointed against the existing vacancies. In the case of

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MADHYAMIC SHIKSHA MANDAL, M.P. V. ABHILASH

SHIKSHA PRASAR SAMITI, JT 1997 (10) SC 363 Hon'ble Apex Court has deprecated interference by High Court on technicalities, in the matter where there has been malpractice in examinations and it is difficult to identify innocent students, and decision has been taken to cancel the examination. In the case of GOHIL VISHVARAJ HANUBHAI V. STATE OF

GUJARAT, 2017 (5) Scale 433, it was ruled that Court has on numerous occasions approved the action of the State or its instrumentalities to cancel examinations whenever such action is believed to be necessary on the basis of some reasonable material to indicate that the examination process is vitiated. They are also not obliged to seek proof of each and every fact which vitiated the examination process. In the case of

CHANDIGARH ADMINISTRATIOIN VS. YASHPAL SINGH

2011 (2) SCT 612, it was held that since the sanctity of the whole examination, which was taken in one go, has been vitiated on account of serious segregation of leakage of question paper, and Home Secretary has clearly expressed that there was no possibility of separating the tainted from untainted candidates which is in a way compliance with the direction of the Tribunal. In the case of UT OF CHANDIGARH

V. DILBAGH SINGH, (1993) 1 SCC 154, Court reiterated that while a candidate who finds a place in the select list may have no vested right to be appointed to any post, in the absence of any specific rules entitling him to the same, he may still be aggrieved of his non-appointment if the authority concerned

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acts arbitrarily or in a malafide manner. That was also a case where the selection process had been cancelled by the Chandigarh Administration upon receipt of complaints about the unfair and injudicious manner in which the select list of candidates for appointment as conductors in CTU was prepared by the Selection Board. An inquiry got conducted into the said complaint proved the allegations made in the complaint to be true. It was in that backdrop that action taken by the Chandigarh Administration was held to be neither discriminatory nor unjustified as the same was duly supported by valid reasons for cancelling what was described by this Court to be as a "dubious selection".

56. The learned counsel further relied upon the case of

UNION OF INDIA VS. O. CHAKARDHAR, 2002 (3) SCC 146,

in which it was observed that 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. Similar view was taken in UNION OF INDIA VS. ANAND KUMAR PANDEY, 1994 (5) SCC 663 and

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PRITPAL SINGH VS STATE OF HARYANA, 1994 (5) SCC 69.

Similarly, in BISWA RANJAN SAHOO & ORS., VS. SUSHANTA KUMAR DINDA & ORS., AIR 1996 SC 2552, the Hon'ble Supreme Court had the occasion to examine whether principles of natural justice were required to be followed in a matter where because of large scale malpractice in the selection process, the selection was cancelled. Similar view was taken in

BIHAR SCHOOL EXAMINATION BOARD VS. SUBHAS

CHANDRA SINHA & ORS., AIR 1970 SC 1269. In KRISHAN YADAV VS. STATE OF HARYANA & ORS., AIR 1994 SC 2166, the Hon'ble Apex Court observed that when the entire selection was stinking "conceived in fraud and delivered in deceit", individual's innocence has no place as fraud unravels everything. Three judge Bench in UNION OF INDIA & ORS.

V. HARJEET SINGH SANDHU [2001(5) SCC 593], has held that Court Martial having become "impracticable" could be dispensed with.

57. In PARMOD LABUDAS NISHRAM V. STATE OF MAHARASHTRA, JT 1996 (9) S.C 260, direction was issued to conduct an enquiry in such like cases. On the basis of aforesaid decisions, learned counsel for the respondents justified the impugned orders. He argued that order of termination, cannot be termed to be a termination order in strict sense, as they are not dispensing with the services of the applicant in normal sense but it was a consequential effect of cancellation of entire examination as the same is found to be tainted one and marred with mass leakage of question appears and in any case

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the applicants are being allowed to participate and if they succeed, they would be extended all the benefits, even of earlier service. A close examination of aforesaid decisions would show that the same do not help the respondents in view of the aforesaid discussion on violation of principles of natural justice, termination during probation period and dispensing with the enquiry. In so far as question of segregation of innocents from tainted category is concerned, the relied upon decisions would show that authorities have cancelled result at the initial stage on finding that mass copying had taken place or question papers were leaked out and therefore, such action was upheld. Thus, the cases elide upon by respondents are distinguishable on point of facts as well as law.

58. The further plea that the applicants had no right of appointment, in view of decision in the case of K. SHYAM KUMAR & OTHERS (supra), merely because they stood selected. None one can dispute about the proposition of law on this aspect. But simultaneously, it has been held by the Hon'ble Supreme Court in the case of SHANKARSAN DASH V. UNION OF INDIA , (1991) 3 SCC 47, that it is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate,

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the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. In this case, as discussed above, there is no conscious decision by the respondents to dispense with the enquiry and the entire action is just to find out a cut-short method to avoid proper enquiry into the matter, which apparently is not sustainable in law. In this case, the applicants were selected and appointed and continued on probation for two years, and their period of probation was extended further and it is during extended period of probation, that their services have been dispensed with, that too based upon a disclosure statement in some other cases, which lead to filing of two FIRs, which in turn lead to conduct of SIT and as such the decisions relied upon by respondents would not help them at all, from any angle.

59. In the present case, they acquired a right to be heard before termination or we can say, right to a notice before termination of their services, is not available to the applicants in the relied upon cases. In those case, they were not appointed and their selection was set aside / cancelled at eh initial stage of examination itself,. In one of the case, the prayer of the petitioner was to conduct re-test of only those

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candidates who were declared successful, which was accepted by the Court. Thus, the decisions will not rendered any assistance in the given facts of this case.

PARITY WITH CASE OF JOGINDER PAL & OTHERS.

60. The issue can be dealt with from another angle as well. In a bunch of petitions leading one being CWP No. 8421 of 2002 titled AMARBIR SINGH VS. STATE OF PUNJAB & OTHERS, decided on 31.5.2013, the candidates had been selected for PCS Judicial and Executive Branches, on qualifying examination conducted by Punjab Public Service Commission. They were put on probation for 3 years. It was discovered that illegal gratification was taken to help candidates in holding examination/interview etc. Initially 40 tainted candidates were pin pointed. But selection was termed as fraudulent and arbitrary being tainted one. After a series of litigation, the Court came to the finding that a clear case is made out that entire selection stood vitiated and it was impossible to identify and segregate tainted or non-tainted candidates and entire selection process was set aside. The said decision was challenged in

JOGINDER PAL & OTHERS VS. STATE OF PUNJAB & OTHERS, (2014) 6 SCC 644. The court has crystallized the issue in a threadbare manner. The relevant paras of the order are reproduced as under :-

"26) We have already narrated the background in which judgment in Inderpreet Singh Kahlon (supra) was rendered by this Court. Those were the appeals filed against the Full Bench judgment in Amarbir Singh (supra) where the Court had held that the action of the Government in cancelling the entire selection process was justified. This very conclusion of the Full Bench was challenged by the appellants in Inderpreet Singh Kahlon (supra) with specific plea that it was not a case for cancelling the entire selection process and, in the first

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instance, the Court should have attempted to find out as to whether cases of the candidates who were tainted could be segregated from those who were unblemished. The court was convinced with the submission. While setting aside the judgment and remanding the case back, the Court went to the extent of holding that by clubbing together tainted as well as non-tainted persons, two unequal classes were clubbed together and it amounted to violation of Articles 14 and 16 of the Constitution of India. It was also held that no attempt was made in this direction, namely, whether there was a possibility of segregating the two classes of persons. The Court found that as the relevant records were still available a fair investigation into the whole affair was possible. We would like to reproduce hereunder some portions of the judgment of S.B. Sinha, J. in Inderpreet Singh Kahlon (supra) touching upon this aspect:

"43. Apart from inferences drawn on certain facts and in particular the circumstances enumerated by the High Court which have been repeated by the learned counsel for the State before us, it is difficult to accept that it was demonstrated by the State that it was absolutely impossible for it to separate the innocent people from the tainted ones. xx xx xx

45. If fraud in the selection process was established, the State should not have offered to hold a reselection. Seniority of those who were reselected ordinarily could not have been restored in their favour. Such an offer was evidently made as the State was not sure about the involvement of a large number of employees.

46. A distinction moreover exists between a proven case of mass cheating for a board examination and an unproven imputed charge of corruption where the appointment of a civil servant is involved.

xx xx xx

50. In those cases also tainted cases were separated from the non-tainted cases. Only, thus, in the event it is found to be impossible or highly improbable, could en masse orders of termination have been issued.

51. Both the State Government as also the High Court in that view of the matter should have made all endeavours to segregate the tainted from the non-tainted candidates. xx xx xx

59. In a case of this nature, thus, the question which requires serious consideration is as to whether due to the misdeed of some candidates, honest and meritorious candidates should also suffer."

27) After noticing the aforesaid features, the directions which are given for setting up of the Committee to go into the issue are contained in para 94, which reads as under:

"94. The impugned judgment as also the orders of the State Government and the High Court are, thus, liable to be set aside and directions are issued. Although the impugned judgments cannot be sustained, we are of the opinion that the interest of justice would be subserved if the matters are remitted to the High Court for consideration of the mattes afresh. However, with a view to segregate the tainted from the non-tainted, and that in the interest of justice the High

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Court should be requested to constitute two independent Scrutiny Committees - one relating to the executive officers and the other relating to the judicial officers."

28) It becomes crystal clear that the concern of the Court was that for the misdeeds of some candidates, honest and meritorious candidates should not suffer. Therefore, endeavour should be made to segregate the tainted candidates from those who were without any stigma and had been selected because of their sheer merit and not on account of any illegal considerations. We would also like to reproduce some of the parts of the concurring judgment authored by Justice Dalveer Bhandari (as His Lordship then was) with the aforesaid message, eloquently and impeccably:

"118. 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.

xx xx xx

124. 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.

125. 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

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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."

29) In view of the above, the issue of entire selection process having been vitiated would have arisen only if the findings of the Committee were that it was not possible to distinguish the cases of tainted from the non-tainted ones and there was a possibility that all of them would have got the benefit of wrong doings of Mr. Sidhu and his accomplices. Fortunately for these appellants, it is not so as they have been found innocent. The appellants get ensconced, earning a safe place, once they are removed from the category of nefarious persons.

Though the tainted candidates have rightly received their comeuppance, but the innocent persons cannot be punished with them. Thus, it is difficult to accept the fallibilistic conclusion of the High Court.

61. Notwithstanding the observations made above, the Court has gone to the extent of holding that the reasons given by the High Court in the impugned judgment, in support of the conclusion that the entire process is to be treated as vitiated, are the same which were placed earlier before the High Court by the Government in Amarbir Singh's case (supra) and they were very much before the Court as well when the judgment in Inderpreet Singh Kahlon (supra) was rendered. The reasons given pertain to the conduct and role of Mr. Sidhu and his accomplices who had taken money/bribes from some of the candidates or had given undue favour to some other candidates because of other influences. The material discussed is the allegations in various FIRs and statements of Mr. Jagman Singh, a confident and tout of Mr. Sidhu (who had become approver in the criminal case), and others recorded under

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Section 161 of the Code of Criminal Procedure, 1973 and the cases in the criminal trial. Despite that, Court had earlier held that those who are innocent cannot be punished because of the misdeeds of Mr. Sidhu in showing favour to other tainted candidates. Moreover, the persons who had come up clean, meaning thereby, who have entered the service by passing the examination on their own merits, should be allowed to continue in the Government service. The Court had condemned the action of terminating the services of the judicial officers, in undue haste. There may be some cases where marks had been given for extraneous considerations, but only because there was such a possibility, the same by itself, without analysing more, may not be a ground for arriving at a conclusion that the entire selection process was vitiated. The direction was, accordingly, given to consider the entire matter afresh. It was ruled that in order to work out the equities and to do complete justice, that it was proper to allow those judicial officers to continue in service who were found to be untainted. Thus, claim of un-tainted candidates was allowed by Apex court dispensation. The said decision, to us, applies on all fours to the facts of this case.

DISCLOSURE STATEMENT

62. There is another reason to accept these petitions because the disclosure statement which the respondents have accepted which was recorded in the case relating to appointment in the case of KABUL SINGH & ORS. VERSUS STATE OF PUNJAB

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& ANOTHER (CWP No.2099 of 2017) and bunch of writ petitions decided on 22.1.2019, wherein the respondent Punjab State Civil Supplies Corporation Limited (PUNSUP) issued an advertisement for recruitment to different posts including Inspector Gr.I, Inspector Gr.II and Senior Assistant(Accounts) and number of petitioners therein were appointed. Thereafter, the respondent State cancelled the appointment of all the petitioners therein by saying that the selection was tainted. The matter came up before the High Court where the Hon'ble High Court based upon an order dated 9.5.2017 made by the Hon'ble Chief Minister, Punjab, that they will follow the due legal process and the Court on that basis disposed of the writ petition with a direction to the respondent State to issue show cause notice to all the appointees within a period of one month and call their explanation from such appointees within 15 days thereafter and thereafter take a decision within one month and communicate the same to all the appointees. Once the Hon'ble High Court has recognized that those petitioners who are continuing in service for the last 4-5 years acquired the right to have the protection of principles of natural justice by the State before dispensing with their services, thus, while applying the ratio of the judgment passed by the Hon'ble High Court in the case of Kabul Singh(supra) in the present case, where the allegations are of similar nature, the respondents orders of dispensing with the services of the present applicants cannot be allowed to sustain.

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63. Having said that and before parting with these cases, we make it very clear that there is two category of applicants, one whose names (49) are mentioned in the FIRs and those whose names are not mentioned in FIR and against whom there is no inkling at all that they have indulged in any kind of cheating or fraud and action has been taken against them only on the basis of the presumption only. We are declaring the action of respondents as not tenable in cases where names of applicants are not included in list of tainted candidates named in the FIRs. Whereas taking action against tainted candidates would be justified and in order, severing the services of the candidates against whom no fraud or cheating has been established, would be a miscarriage of justice.

64. In the wake of the aforesaid discussion, we find that the impugned orders being illegal, arbitrary, violation of Articles, 14, 16, 21 & 311 of the Constitution of India and violative of principles of natural justice, thus, the same are hereby quashed and set aside. In case of candidates whose names are not indicated in FIRs, the respondents would be free to take action against them after carrying out regular enquiry and if they are found to be guilty, the necessary action can be taken against them in accordance with rules and law. In case of second set of the applicants, whose names are mentioned in the indicated FIRs, the action can be taken by respondents, as per rules and law, after following principles of natural justice.

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65. The Miscellaneous Applications filed in these cases also stand disposed of accordingly.

66. In the peculiar facts of these cases, the parties are left to bear their own costs.

(SANJEEV KAUSHIK)

MEMBER (J)

(P.GOPINATH)

MEMBER (A)

Place: Chandigarh. Dated: May 6^th, 2019. HC/KK*

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