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PETITIONER:

KARNATAKA PUBLIC SERVICE COMMISSION AND ORS. ETC.

Vs.

RESPONDENT:

B.M. VIJAYA SHANKAR AND ORS.

DATE OF JUDGMENT14/02/1992

BENCH:

SAHAI, R.M. (J)

BENCH:

SAHAI, R.M. (J)

OJHA, N.D. (J)

PANDIAN, S.R. (J)

KULDIP SINGH (J)

SHETTY, K.J. (J)

CITATION:

1992 AIR 952 1992 SCR (1) 668

1992 SCC (2) 206 JT 1992 (4) 348

1992 SCALE (1)451

ACT:

Service Law-Karnataka Public Service Commission-

Recruitment to State Civil Service-Competitive Examinations-

General Instructions (I) (XII) and (XIII)-Instructions to

candidates not to write Roll Numbers anywhere in the Answer

Sheet except on the space provided on the front page-Breach

of instruction by some candidates-Non-evaluation of answer

sheets by Commission-Action of Commission held not

arbitrary-Failure to provide hearing opportunity to

candidates held not violative of natural justice-Directions

given to grant relaxation in age and chance to avail.

Natural justice-Rule of hearing-Exceptions-Rule is

construed strictly in academic disciplines-It should be

construed more strictly in competitive examinations.

HEADNOTE:

The Karnataka Public Service Commission conducted

competitive examinations for the State Civil Services.

Clause (I) of the General Instructions to the candidates

provided that the candidates should write their roll number

only on the front page of the answer books in the space

provided for it and not anywhere else inside the answer

sheet. Clause (xii) provided that the candidates must abide

by the instructions and clause (xiii) provided that failure

to abide by the instructions will render them liable to

expulsion from examination or such other punishment as the

Commission may deem fit. Some of the candidates violated

the instructions and entered their roll numbers inside the

answer books. Consequently their answer books were not got

evaluated by the Commission. The candidates challenged the

action of the Commission before the Karnataka Administrative

Tribunal which directed the Commission to get their answer

books evaluated by holding that (i) no penalty was provided

for breach of the instructions and (ii) the failure of the

Commission to afford any opportunity to the candidates to

explain their bonafide and innocence was arbitrary. Against

the decision of the Tribunal the Commission and

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the State filed appeals in this Court.

Allowing the appeals and setting aside the order of

the Tribunal, this Court,

HELD: 1. The Tribunal faulted in inferring that no

penalty was provided for breach of instructions requiring a

candidate not to write his role number inside the answer

book. The expression `such other punishment as the

Commission may deem fit to impose' in clause (xiii) of the

General Instructions read with clause (xii) provides action

for breach of that which is, clearly specified. Provisions

attempting to infuse discipline in competitive examinations

cannot be construed with same yardstick as a provisions in

penal statutes. Direction not to write roll number was

clear and explicit. Once it was violated the issue of

bonafide and honest mistake did not arise. [671C, G-H,

672A, 673D]

1.1. However, the Commission did not impose any penalty

on the candidates because neither their examination was

cancelled nor were they debarred from taking any examination

conducted by the Commission. The only action taken was that

those answer books in which roll number had been written

inside were not subjected to evaluation. Therefore the

action of the Commission could not be characterised as

arbitrary. [672B-C]

2. Natural justice is a concept which has succeeded in

keeping the arbitrary action within limits and preserving

the rule of law. But with all the religious rigidity with

which it should be observed, since it is ultimately weighed

in balance of fairness, the courts have been circumspect in

extending it to situations where it would cause more

injustice than justice. Absence of any expectation of

hearing in matters which do not affect any interest and call

for immediate action, such as the present one, where it

would have delayed declaration of list of other candidates

which would have been more unfair and unjust are rare but

well recognised exceptions to the rule of natural justice.

[672F-H; 673C-D]

2.1. Even though the procedure of affording hearing is

as important as decision on merits yet urgency of the

matter, or public interest at times require flexibility in

application of the rule as the circumstances of the case and

the nature of the matter required to be dealt may serve

interest of justice better by denying opportunity of hearing

and permitting the person concerned to challenge the order

itself on merits not for lack of hearing to

670

establish bonafide or innocence but for being otherwise

arbitrary or against rules. [672G-H]

2.2. Rule of hearing has been construed strictly in

academic disciplines. It should be construed more strictly

in such cases where an examinee is competing for Civil

Service post. Present case can safely be placed in a

category where natural justice before taking any action

stood excluded as it did not involve any misconduct or

punishment. Therefore the Tribunal in issuing the

directions approached the matter technically and completely

misdirected itself in this regard. [673E-F, 673H, 673G]

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 369-

393 of 1991.

From the Judgment and Order dated 13.9.1990 of the

Karnataka Administrative Tribunal, Bangalore, in Application

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Nos. 875, 4243, 4632, 1978 to 1980, 2974, 676, 677, 4483,

1499, 2022,1500,2023, 3357, 1865, 1781, 1684, 3484, 3479,

2724, 2080, 3926, 4113, 4279, 3527 and 4553 of 1990.

WITH

Civil Appeal Nos. 825-826 and 394-397 of 1991.

R.N. Narsimhamurthy, E.C. Vidyasagar, M. Veerappa, Kh.

Nobin Singh, Ms. Kiran Suri, P.P. Tripathi, N.S. Das Bahl,

Ms. Lalitha Kaushik, S.K. Kulkarni, Sury Kant, D.B. Vohra

and L.R. Singh for the appearing parties.

The Judgment of the Court was delivered by

R.M. SAHAI, J. Does the rule of natural justice has no

exception ? Is denial of opportunity of hearing, in every

circumstance, arbitrary? The State of Karnataka and the

Public Service Commission, through these appeals, seek

answer to these questions. They are aggrieved by directions,

issued by the Karnataka Administrative Tribunal, to get the

answer books of candidates evaluated who in the competitive

examinations conducted by the commission for the State Civil

Service for categories `A' and `B' post, were guilty of

writing their roll numbers not only on the front page of

the answer books, in the space provided for it, but even at

other places in disregard of instructions issued by the

Commission. Basis for the direction was failure of the

Commission to afford any opportunity to the candidates

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to explain their bonafide and innocence therefore it was

arbitrary and it entailed grave consequences for those who

were aspirants for entering into public service.

Power and authority of the Commission to hold

examinations, regulate its working and functioning take

action against erring candidates guilty of misconduct are

all provided for by the rules and instructions issued in

exercise of power conferred by the Statutes. The claim of

the candidates that they did not vest any right in the

Commission to take such action was negatived by the

tribunal. But it faulted in inferring that no penalty was

provided for breach of instructions requiring a candidate

not to write his roll number inside the answer book.

Relevant clause (1) of the Instructions to Candidates is

extracted below:

"Before commencing your answers please write your

register number and other particulars in the space

provided above. Do not write your name or

register number or sign any where in the answer

book or on any loose sheets, such as precis

sheets,maps, graph papers, etc.'

It is not disputed and it was found, even by the

tribunal that it was printed on the first page of every,

answer book. Its observance was mandatory and its disregard

was punishable is clear from instruction (xii) and (xiii)

of General Instructions to the candidates which are

extracted below:

"(xii) The candidates must abide by such

instructions as may be specified on the cover of

the answer book or any further instructions which

may be given by the Supervisor/Invigilator of the

Examination.

(xiii) If the candidates fail to do so or indulge

in disorderly or improper conduct, they will

render themselves liable to expulsion from

examination and or such other punishment as the

Commission may deem fit to impose."

Is the expression, 'such other punishment as the

commission may deem fit to impose' vague and thus arbitrary?

We do not think so.Read with clause (xii) it presents no

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difficulty. It provides action for breach of that which is,

clearly, specified. It cannot be characterised as vague.

And then any capricious exercise of power can always be

assailed. More important

672

than this is that provisions attempting to infuse discipline

in competitive to be conducted by the Commission cannot be

construed with same yardstick as a provision in penal

statutes. Moreover the Commission did not impose any penalty

on the candidates. Their examination was not cancelled nor

they were debarred from taking any examination conducted by

the Commission for that year or any year, in future. Their

marks in papers, other than those in which they were found

to have acted in disregard of instructions were declared.

The only action taken was that those answer books in which

roll numbers had been written inside were not subjected to

evaluation. In our opinion there was nothing,

basically,wrong in it. The Commission did not treat it as

misconduct. The action could not be termed as arbitrary.

Nor it was abuse of power which could be corrected by

judicial review.

Such instructions are issued to ensure fairness in the

examination. In the fast deteriorating standards of honesty

and morality in the society the insistence by the

Commission that no attempt should be made of identification

of the candidate by writing his roll number anywhere is in

the larger public interest. It is well known that the first

page of the answer book on which roll number is written is

removed and a fictitious code number is provided to rule out

any effort of any approach to the examiner. Not that a

candidate who has written his roll number would have

approached the examiner. He may have committed a bonafide

mistake. But that is not material. What was attempted to be

achieved by the instruction was to minimise any possibility

or chance of any abuse. Larger public interest demands of

observance of instruction rather than its breach.

Was natural justice violated ? Natural justice is a

concept which has succeeded in keeping the arbitrary action

within limits and preserving the rule of law. But with all

the religious rigidity with which it should be observed,

since it is ultimately weighed in balance of fairness, the

courts have been circumspect in extending it to situations

where it would cause more injustice than justice. Even

though the procedure of affording hearing is as important as

decision on merits yet urgency of the matter, or public

interest at times require flexibility in application of the

rule as the circumstances of the case and the nature of the

matter required to be dealt may serve interest of justice

better by denying opportunity of hearing and permitting the

person concerned to challenge the order itself on merits not

for lack of hearing to establish bonafide or innocence but

for being otherwise

673

arbitrary or against rules. Present is a case which, in our

opinion, can safely be placed in a category where natural

justice before taking any action stood excluded as it did

not involve any misconduct or punishment.

Competitive examinations are required to be conducted

by the Commission for public service in strict secrecy to

get the best brain. Public interest requires no compromise

on it. Any violation of it should be visited strictly.

Absence of any expectation of hearing in matters which do

not affect any interest and call for immediate action, such

as the present one, where it would have delayed declaration

of list of other candidates which would have been more

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unfair and unjust are rare but well recognised exceptions to

the rule of natural justice. It cannot be equated with where

a student is found copying in the examination or an

inference arises against him for copying due to similarity

in answers of number of other candidates or he is charged

with misconduct or misbehavior. Direction not to write roll

number was clear and explicit. It was printed on the first

page of every answer book. Once it was violated the issue

of bonafide and honest mistake did not arise. Its

consequences, even, if not provided did not make any

difference in law. The action could not be characterised as

arbitrary. It was not denial of equal opportunity. The

reverse may be true. The tribunal appears to have been

swayed by principles applied by this Court where an examinee

is found copying or using unfair means in the examination.

But in doing so the tribunal ignored a vital distinction

that there may be cases where the right of hearing may be

excluded by the very nature of the power or absence of any

expectation that the hearing shall be afforded. Rule of

hearing has been construed strictly in academic disciplines.

It should be construed more strictly in such cases where an

examinee is competing for Civil Service post. The very

nature of the competition requires that it should be fair,

above board and must infuse confidence. If this is ignored

then, as stated earlier, it is not only against public

interest but it also erodes the social sense of equality.

The tribunal in issuing directions approached the matter

technically and has attempted to make out much where it

would have been better part of discretion to refuse to

interfere. The tribunal completely misdirected itself in

this regard. In our opinion its order cannot be maintained.

Before concluding we express our unhappiness on the

letter of First member of the Public Service Commission sent

to this court that the Special Leave Petitions were filed

without authority against the decision of

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the Commission by the Chairman and the secretary. We do not

make any comment on it but we shall be failing in our duty

if we do not place it on record that but for the action of

the Chairman and the Secretary incalculable harm would have

been caused to the institution.

In the result these appeals succeed and are allowed.

The order passed by the tribunal is set aside. The claim

petition filed by the candidates shall stand dismissed,

except to the extent indicated below.

Claim petitions were allowed on 13th September 1990.

Nearly one and half years have elapsed since then. Many of

the candidates might not have availed of their chance in

the meantime. They might have become over age. therefore,

we consider it necessary to direct that the Commission shall

grant relaxation of age and of chance to be availed, if

there is any restriction in this regard, to those candidates

whose answer books were not evaluated for the reason that

they had violated the instructions and entered their roll

numbers inside the answer books. We were informed that

there were large number of such candidates. Therefore, this

decision will apply to respondents as well as others who

appeared in the examination. Relaxation shall be for one

chance only to be availed of in the next examination.

The appeal nos. 394-397/91 have been filed by the

selected candidates. Since the appeal of the Commission has

been allowed it is not necessary to pass any order in these

appeals. They shall stand disposed of accordingly.

parties shall bear their own costs.

T.N.A. Appeals allowed.

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