2024 INSC 7 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.20-21 OF 2024

(@ SPECIAL LEAVE PETITION (CIVIL) NOS. 3877-

3878 OF 2022)

RADHEY SHYAM YADAV & ANR. ETC. ...APPELLANT(S)

VS.

STATE OF U.P. & ORS. ...RESPONDENT(S)

J U D G M E N T

K.V. Viswanathan, J.

1.Leave granted.

2.Radhey Shyam Yadav, Lal Chandra Kharwar and

Ravindra Nath Yadav are the three appellants. On

25.06.1999, they were appointed as Assistant Teachers at the

Junior High School, Bahorikpur, Maharajganj, District

Jaunpur, U.P. (hereinafter referred to as ‘the School’). From

October, 2005, abruptly their salaries were stopped. They

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moved the High Court for redressal. Both the learned Single

Judge and the Division Bench declined them relief.

Aggrieved, they are before us in these Appeals.

Brief facts:-

3.From the record, it appears that the School started as a

recognized unaided school in 1983-1984 with one post of

Head Master, four posts of Assistant Teacher, three posts of

Peon and one post of Clerk. On 07.10.1996, two posts of

Assistant Teacher were increased, raising the sanctioned

strength of Assistant Teacher to six.

4.On 26.12.1997, the Director of Education (Basic)

sanctioned certain additional posts of Assistant Teacher in the

aforesaid School. While the department claims that by the

order of 26.12.1997, only two posts of Assistant Teacher

were sanctioned, the Manager/Principal of the School

claiming that three posts were sanctioned, went ahead and

sought permission from the District Basic Education Officer

for issuing advertisement. This was done by their letter of

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28.01.1998. The letter of 26.12.1997 has been placed before

us by the State in the form of an additional affidavit which

indicates that only two posts were sanctioned. The State does

not dispute that by the above letter two posts of Assistant

Teacher were sanctioned. In 1998, the School became an

aided School.

5.Thereafter, responding to the letter of the School, the

District Basic Education Officer by his letter of 20.11.1998

accorded permission to issue advertisement for appointment

of three posts of Assistant Teachers. On 25.11.1998, an

advertisement was issued. The School, thereafter, on

08.12.1998, wrote a letter to the District Basic Education

Officer to nominate a Member for the selection of the

teachers. In response, the District Basic Education Officer

nominated the Assistant District Basic Education Officer,

Bahorikpur as a Member of the Selection Committee. The

Selection Committee duly met and considered the twelve

applications received by it. Seven out of the twelve

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applicants, including the three appellants herein, participated

in the interview. By its letter of 27.12.1998, the Selection

Committee informed the District Basic Education Officer

that the appellants, on basis of their ability, have been

selected and their case was being submitted for approval. The

order in which the Selection Committee has sent subject-

wise names were as follows:

i. Lal Chandra Kharwar – Science and Math

ii. Radhey Shyam Yadav – English

iii. Ravindra Nath Yadav – Agric & Gen.Topic

It is not disputed that by an order of 09.06.1999, the District

Basic Education Officer granted approval for the

appointment of the appellants. As stated earlier, they were

appointed on 25.06.1999 and were working continuously.

6.The undisputed case is that from October, 2005, their

salaries were stopped from being disbursed, forcing them to

file Writ Petitions in the High Court, namely, Civil Misc.

Writ Petition No. 10286 of 2007 and Civil Misc. Writ

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Petition No. 18641 of 2008. The three appellants, in all, filed

two writ petitions. In the writ petitions, the prayer was for a

writ of mandamus commanding the respondents to pay the

arrears of salary from July, 1999 to January, 2002 and

continue to pay salary from October, 2005. It was their case

that from the date of appointment till January 2002, their

salary had not been released.

7.The District Basic Education Officer filed counter

affidavits to the writ petitions. It was his case that, by order

dated 26.12.1997, only two additional posts of Assistant

Teacher were created by the Joint Director of Education. It

was averred that manipulation was made by the management

in collusion with the appellants to show that three posts of

Assistant Teacher were sanctioned.

8.Apart from this bare allegation, absolutely no material

was placed on record to show how the appellants had

colluded or were blameworthy for any manipulation.

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9.Subsequent to the counter affidavit filed by the State,

on 30.07.2013, a compliance affidavit was filed. It is averred

therein that a detailed enquiry was conducted in the matter

wherein it had transpired that manipulation was got done at

the level of the School in question by overwriting the

sanctioned posts of teachers of the School as “three” in place

of “two”.

10.The Learned Single Judge, by order dated 10.09.2013,

held that if based on the forged order, proceedings were

initiated for the selection of Assistant Teacher, then the entire

selection needs to be cancelled. It was also held that since

forgery was committed by the persons involved in the

selection of Assistant Teachers and since the selection

process was not fair, being based on a forged letter, the

candidates who were selected in the selection process are not

entitled to be appointed and retained on the post of Assistant

Teacher, and holding so, the writ petitions were dismissed.

The appellants filed writ appeals. By the impugned order, the

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appeals were dismissed reiterating the findings of the learned

Singe Judge.

Contentions:

11.We have heard Mr. Surender Kumar Gupta, learned

counsel for the appellants and Ms. Sansriti Pathak, learned

counsel for the respondent-State.

12.Learned counsel for the appellants, after placing a

comprehensive overview of the facts, vehemently contended

that there was no fault on the part of the appellants and for

any wrong computation of vacancy, the appellants ought not

to be prejudiced. He further contended that the State

admittedly does not dispute that two vacancies were, in fact,

created and that if at all there was any manipulation, it was at

the level of the School. In the absence of any blameworthy

conduct attributed to the appellants, they ought not to be

prejudiced after serving the School for very long. According

to the appellants, they were continuously teaching till

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30.03.2016 by entering their names in a separate register.

However, according to the State, from October, 2005 their

salaries have been stopped. In support of their claim, learned

counsel for the appellants relied upon the judgments of this

Court in Vikas Pratap Singh and Ors. Vs. State of

Chhattisgarh and Ors., (2013) 14 SCC 494 and the recent

judgment in Civil Appeal Nos. 6233-34 of 2023 dated

20.11.2023 titled Vivek Kaisth and Anr. Vs. The State of

Himachal Pradesh and Ors., 2023:INSC:1007 = 2023 SCC

OnLine SC 1485.

13.Ms. Sansriti Pathak, learned counsel for the State

vehemently defended the impugned judgment. She contended

that where there was fraud, the whole selection process shall

be vitiated. She relied on Sachin Kumar and Ors. Vs. Delhi

Subordinate Service Selection Board (DSSSB) and Ors.

2021:INSC:147 = 2021 (4) SCC 631 in support of her

proposition. Learned counsel submitted that there was no

8

case warranting interference under Article 136 of the

Constitution of India.

Discussion and Findings:

14.We have given our thoughtful consideration to the

matter and considered the submissions of the rival parties and

perused the records. The correspondence between the School

and the Directorate of Education culminated in the order of

26.12.1997. There is a dispute about the number of posts that

were sanctioned. According to the State, two posts were, in

fact, sanctioned and it was the School that manipulated it, to

make it three. We will proceed on the basis that the version of

the State is correct. The nominee of the State participated in

the selection process. Twelve candidates had applied and

ultimately three appellants were empanelled for selection.

Due approval was given for the appointment and admittedly

they discharged their duties on their post from 25.06.1999 till

September, 2005. Even according to the State, admittedly, till

date there is no order terminating their services. What

9

impelled the appellants to go to the High Court was the

stoppage of their salary.

15.There is not an iota of material to demonstrate how the

appellants, who were applicants from the open market, were

guilty of colluding in the manipulation.

16.We are also reinforced on this, by the findings in the

inquiry report initiated pursuant to the directions of the High

Court in the writ petitions. In the Inquiry Report, the

conclusion was that, it was the erstwhile District Basic

Education Officer, Jaunpur and his office, in collusion with

the Manager of the School, who had taken steps for

appointment/approval. It was mentioned that there was

involvement of Shri Ram Dular Yadav, Principal, Shri Triloki

Nath Singh, Manager of the school, the erstwhile District

Basic Education Officer, Jaunpur and also the officials of the

District Basic Education Officer, Jaunpur. It was further

found that the Manager of the School has fraudulently

changed the number of posts from two to three in the order

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dated 26.12.1997 and it was mentioned that Shri Triloki Nath

Singh, the Manager was guilty and accordingly, District

Basic Education Officer, Jaunpur has lodged an F.I.R. against

Shri Triloki Nath Singh on 08.07.2013.

17.What is important to notice is, nothing has been

mentioned as to how the appellants, who were applicants

from the open market, were in any way responsible. There is

no reference to any material whatsoever that had been

unearthed either in the departmental inquiry launched or in

the criminal investigation. On a pointed query to the counsel

for the State as to whether the appellants were arrayed as

accused in that criminal case, she candidly replied that they

were not. On being further asked as to whether any action

has been taken against the School, she replied that no action

has been taken. The School continues to function with

grants-in-aid. She submitted that the only action taken was to

file an F.I.R. against the Manager of the School, which F.I.R.

has since resulted in a charge-sheet.

11

18.In the inquiry report, the following crucial findings

occur. They are extracted hereinbelow:

"(3) Two additional posts of Assistant Teachers were

created vide the Directorate's letter No.Samanya(l)

Basic/2117-20/96-97 dated 26.12.1997 (certified copy

enclosed) as a result the number of sanctioned posts of

Asst. Teachers in the school in question became 06 (six).

Earlier this letter was typed for being sent to the Zonal

Assistant Education Director (Basic), Azamgarh which

was later on erased and 'Varanasi' was written with pen.

In this letter, in column No.2, the number of sanctioned

post is mentioned as 02 and against column No.5 the

number of Assistant Teachers is clearly mentioned as 8.

This file bears the signatures of Ex-Desk Assistant Shri

Rajnarain Trivedi and Deputy Education Director

(Science) Shri Harish Chandra Tiwari, who has since

retired on the note side of the file there is the order of

creation of two posts dated 11.8.1997 of late Shri Vinay

Kumar Pandey, Deputy Education Director (Basic).

(4) In the aforesaid post creation order of the Directorate

dated 26.12.1997, the Manager of the institute, showing

03 (three) posts of Assistant Teachers fraudulently and

obtained approval for appointment of 03 Assistant

Teachers S/Shri Lal Chand Kharwar, Radhey Shyam

Yadav and Ravinder Nath from District, Jaunpur vide

letter No B-2/1313-14/99-2000 dated 9.6.98.

(5) The District, Jaunpur sought permission from the

Directorate for payment of salary of the aforesaid three

teachers vide letter No.3909 dated 28.8.2001. With this

letter the Directorate's letter dated 16.12.1997, which was

sent by the Manager duly certified by the District,

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Jaunpur was enclosed in which fraudulently 03(three) in

place of 02 (two) in column No.3, 09 (nine) in place of 08

(eight) and total 12 (twelve) in place of 11 (eleven)

against column No.5 were shown.

(6) After the verification of the said fraudulent letter dated

26.12.1997 sent by the District, Jaunpur, vide the

registered letter No.Arth(4)/1812/2004-05 dated

27.10.2004 and Letter No.Arth(4)/2310-13/2004-05 dated

19.11.2004, the District, Jaunpur was directed that in the

post creation order in question the Manager of the

institute had fraudulently mentioned three posts while in

the post creation order dated 28.12.1997 only two posts of

Assistant Teachers have been sanctioned. The Directorate

directed the District, Jaunpur to call for the explanation of

the Manager and the Principal of the institute responsible

for the same, and to furnish the information about the

then District, Jaunpur who had verified the posts and the

name, designation and the place of posting of the then

Desk Assistant (photo copy enclosed). On the aforesaid

two letters of the Directorate no action was taken by the

then District, Jaunpur which prima facie shows that the

erstwhile District, Jaunpur and his office in collusion with

the Manager of the school, had taken steps for

appointment/approval in the school in which the

involvement of Shri Ram Dular Yadav, Principal, Shri

Triloki Nath Singh, Manager of the institute, the erstwhile

District, Jaunpur and the officials of the office of District,

Jaunpur, is clearly visible.

xxx xxx

(c) The erstwhile District, Jaunpur/erstwhile Finance and

Accounts Officer, Basic Education Office, Jaunpur and

the Desk Assistant are prima facie guilty in granting

permission for advertisement selection, approval and

taking steps for disbursement of salary on the basis of the

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forged letter of creation of posts dated 26.12.1997 of the

Manager of the institute and in this respect the Education

Director (Basic) should submit proposal to the

Government to initiate disciplinary action against them.

In addition take action against the concerned Desk

Assistants at his level."

There was absolutely nothing found against the three

appellants. However, the following recommendations were

made:-

"(d) The appointments of S/Shri Lala Chand Kharwar,

Radhey Shyam Yadav and Ravindra Nath Yadav, made

pursuant to the said forged letter dated 26.12.1997 are

illegal. They have been paid for the period February, 2002

to October, 2005, the salary is illegal. The same be

counted and action for proportionate recovery be taken

against the guilty erstwhile District/erstwhile Finance and

Accounts Officer, Basic Education and the concerned

Desk Officer by the Director of Education (Basic) as per

the settled procedure and steps taken to terminate the

services of illegally appointed Assistant Teachers S/Shri

Lala Chand Kharwar, Radhey Shyam Yadav and Ravindra

Nath Yadav."

19.In the inquiry, the appellants were not given any

opportunity. Even in the inquiry held behind the back of the

appellants, there were no findings of collusion or

blameworthiness against them for the alleged manipulation.

14

Even as on date, the appointment order dated 25.06.1999 and

the approval order of 09.06.1999 have not been revoked.

With no finding of guilt against the appellants and with no

material against them, their salaries had been stopped and

they have been prevented to sign on the regular attendance

register, admittedly from October, 2005. The contention of

the appellants is that they continued with their teaching work

up till 30.03.2016 entering their names on a separate

attendance register.

20.We may also note the fact that in the F.I.R. lodged by

the State on 17.07.2015 also, there is no allegation against the

appellants or any other applicants and only two persons were

named in that F.I.R. They were Vinod Kumar Chaturvedi,

Senior Assistant and Rajendra Prasad Yadav, Senior Assistant.

Both were employees in the office of the District Basic

Education Officer. The allegation was that the documents

related to approval of appointments/teacher listings from the

15

concerned schools were missing and that the said two officers

were responsible for maintaining the records.

21.In this background, the question that really falls for

consideration is, was the State justified in abruptly and

without anything more, stopping the salary? We are

constrained to answer the question in negative.

22.Assuming the case of the State to be true and taking it

at its highest, the factual position would come to this, namely,

that while the State sanctioned two vacancies, the school

went ahead and recruited three. The State has no proof of

commission of any malpractice by the appellants. The State

approved their appointments, and the approval order till date

has not been cancelled. The appointments have not been

terminated. No action has been taken against the school and

the school continues to receive the aid.

23.Chief Engineer, M.S.E.B. and Another vs. Suresh

Raghunath Bhokare, (2005) 10 SCC 465 is a case which, on

facts, has a striking resemblance to the case at hand. The

16

respondent therein had been recommended by the department

and was selected as line-helper in the appellant-Board. On

the ground that the recommendation was allegedly made

fraudulently, the respondent was dismissed from service. The

complaint preferred by the respondent had been dismissed by

the Labour Court. The Industrial Court reversing the findings

of the Labour Court, quashed the termination of the

respondent therein and directed reinstatement. Writ Petition

filed by the appellant therein was dismissed by the High

Court. This Court, while observing that in the absence of any

overt act being attributed to the respondent, held that it could

not be inferred that the respondent had a role in sending

fraudulent list, solely on the basis of the presumption that he

got the job. Para 5 of the judgment which is crucial for the

decision of the present case is extracted herein below:-

“5. The entire basis of the dismissal of the appellant

depends upon the factum of the alleged

misrepresentation attributed to the respondent. The

Industrial Court in its impugned order has noticed the

fact that the respondent was appointed in April 1994

17

pursuant to the selection procedure followed by the

competent authority and that he was selected by the

panel of Selection Committee consisting of 6 members

which included the very same Social Welfare Officer

who had sent the proposal including the name of the

respondent for appointment. It also noticed the fact that

the selection in question was made after an oral

interview and the required test as also the medical

examination. The Industrial Court also noticed the fact

that the appointment of the respondent was

confirmed after one-year period and thereafter the

respondent has been working without any complaint.

The said Industrial Court also noticed the fact that the

termination of the respondent was based on a show-

cause notice issued on 5-7-1999 which was replied to

by the respondent on 17-7-1999 and the termination

was made in a summary procedure permissible under

Rule 90(b) of the Service Regulations. The Industrial

Court after perusing the pleadings and the notice issued

to the respondent came to the conclusion that the

alleged misrepresentation which is now said to be a

fraud was not specifically pleaded or proved. In the

show-cause notice, no basis was laid to show what is

the nature of fraud that was being attributed to the

appellant. No particulars of the alleged fraud were

given and the said pleadings did not even contain any

allegation as to how the appellant was responsible for

sending the so-called fraudulent proposal or what role

he had to play in such proposal being sent. It also

noticed from the evidence of Mr Waghmare, Social

Welfare Officer who sent the proposal before the

Labour Court that he did not utter a single word as to

whether the said supplementary list was ever called for

by the department concerned or not. Thus applying the

basic principle of rule of evidence which requires a

party alleging fraud to give particulars of the fraud and

having found no such particulars, the Industrial Court

came to the conclusion that the respondent could not be

held guilty of fraud. The said finding of the Industrial

Court has been accepted by the High Court. Mr.

18

Bhasme though contended that the fraud in question

was played in collusion with the Social Welfare Officer

and 2 other employees of the Board and action against

the said 2 employees of the Board has been taken, but

by that itself we are unable to accept the argument of

Mr. Bhasme that there is material to support the

contention of the Board that the appellant had also

contributed to making the misrepresentation at the time

of applying for the job with the Board. In the absence

of any such particulars being mentioned in the show-

cause notice or at the trial, attributing some overt act to

the respondent, we do not think the Board can infer

that the respondent had a role to play in sending a

fraudulent list solely on the basis of the presumption

that since the respondent got a job by the said proposal,

the said list is a fraudulent one. It was the duty of the

Board to have specifically produced the material to

prove that the respondent himself had the knowledge of

such a fraud and he knowingly or in collusion with

other officials indulged in this fraud. Since there is no

such material on record, on the facts of the instant case,

the Industrial Court and the High Court have come to

the right conclusion that the alleged fraud has not been

established by the appellants, hence, this is not a fit

case in which interference is called for. This appeal,

therefore, fails and the same is dismissed.”

(emphasis supplied)

24.In Vikas Pratap Singh (supra), this Court, while

protecting the selection of the appellants, had the following

to say:-

"27. Admittedly, in the instant case the error committed

by the respondent board in the matter of evaluation of the

answer scripts could not be attributed to the appellants as

they have neither been found to have committed any

19

fraud or misrepresentation in being appointed qua the first

merit list nor has the preparation of the erroneous model

answer key or the specious result contributed to them.

Had the contrary been the case, it would have justified

their ouster upon re-evaluation and deprived them of any

sympathy from this Court irrespective of their length of

service."

25.Vikas Pratap Singh (supra) was followed in Anmol

Kumar Tiwari and Others vs. State of Jharkhand and

Others, 2021:INSC:101 = (2021) 5 SCC 424. This Court, in

para 11, held as follows:-

“11. Two issues arise for our consideration. The first

relates to the correctness of the direction given by the

High Court to reinstate the writ petitioners. The High

Court directed reinstatement of the writ petitioners after

taking into account the fact that they were beneficiaries of

the select list that was prepared in an irregular manner.

However, the High Court found that the writ petitioners

were not responsible for the irregularities committed by

the authorities in preparation of the select list. Moreover,

the writ petitioners were appointed after completion of

training and worked for some time. The High Court was

of the opinion that the writ petitioners ought to be

considered for reinstatement without affecting the rights

of other candidates who were already selected. A similar

situation arose in Vikas Pratap Singh case [Vikas Pratap

Singh v. State of Chhattisgarh, (2013) 14 SCC 494 :

(2013) 3 SCC (L&S) 100], where this Court considered

that the appellants therein were appointed due to an error

committed by the respondents in the matter of valuation

of answer scripts. As there was no allegation of fraud or

misrepresentation committed by the appellants therein,

the termination of their services was set aside as it would

20

adversely affect their careers. That the appellants therein

had successfully undergone training and were serving the

State for more than 3 years was another reason that was

given by this Court for setting aside the orders passed by

the High Court. As the writ petitioners are similarly

situated to the appellants in Vikas Pratap Singh

case [Vikas Pratap Singh v. State of Chhattisgarh, (2013)

14 SCC 494 : (2013) 3 SCC (L&S) 100], we are in

agreement with the High Court that the writ petitioners

are entitled to the relief granted. Moreover, though on

pain of contempt, the writ petitioners have been reinstated

and are working at present.”

(emphasis supplied)

26.To the same effect is the ratio of the judgment of this

Court in Dr. M.S. Mudhol and Another vs. S.D. Halegkar

and Others, (1993) 3 SCC 591 wherein, in para 6, it was

observed as under:-

“6. Since we find that it was the default on the part of the

2nd respondent, Director of Education in illegally

approving the appointment of the first respondent in 1981

although he did not have the requisite academic

qualifications as a result of which the 1st respondent has

continued to hold the said post for the last 12 years now,

it would be inadvisable to disturb him from the said post

at this late stage particularly when he was not at fault

when his selection was made. There is nothing on record

to show that he had at that time projected his

qualifications other than what he possessed. If, therefore,

in spite of placing all his cards before the selection

committee, the selection committee for some reason or

the other had thought it fit to choose him for the post and

the 2nd respondent had chosen to acquiesce in the

appointment, it would be inequitous to make him suffer

21

for the same now. Illegality, if any, was committed by the

selection committee and the 2nd respondent. They are

alone to be blamed for the same.”

27.In Rajesh Kumar and Others vs. State of Bihar and

Others, (2013) 4 SCC 690, this Court finding the appellants

to be innocent parties ruled that even if in the re-evaluation

the appellants do not make the grade, still the appellants

appointments ought to be protected. Para 21 & 22.3 are

extracted herein below:-

“21. There is considerable merit in the submission of Mr

Rao. It goes without saying that the appellants were

innocent parties who have not, in any manner, contributed

to the preparation of the erroneous key or the distorted

result. There is no mention of any fraud or malpractice

against the appellants who have served the State for

nearly seven years now. In the circumstances, while inter

se merit position may be relevant for the appellants, the

ouster of the latter need not be an inevitable and

inexorable consequence of such a re-evaluation. The re-

evaluation process may additionally benefit those who

have lost the hope of an appointment on the basis of a

wrong key applied for evaluating the answer scripts. Such

of those candidates as may be ultimately found to be

entitled to issue of appointment letters on the basis of

their merit shall benefit by such re-evaluation and shall

pick up their appointments on that basis according to their

inter se position on the merit list.

22.3. In case the writ petitioners, Respondents 6 to 18

also figure in the merit list after re-evaluation of the

answer scripts, their appointments shall relate back to the

22

date when the appellants were first appointed with

continuity of service to them for purpose of seniority but

without any back wages or other incidental benefits.”

28. In K. Ameer Khan and Anr. Vs. A. Gangadharan and

Ors., (2001) 9 SCC 84, a case involving the wrong

computation of vacancies, while protecting the promotion of

the appellants, this Court had the following to say:-

"2. .....The appellants have been selected quite some time

back and the first appellant has been promoted to a higher

grade. The appellants were not responsible for the wrong

computation of vacancies done by the second respondent.

After the empanelment and appointment of the appellants,

it is brought to our notice that there have been fresh

promotions to the post of Assistant Controller of Stores at

least on two occasions in June 1995 and May 1997. In a

new selection, five Scheduled Caste candidates and four

Scheduled Tribe candidates have been selected. The

appellants could not participate in the same as they had

already been promoted to the higher grade. Now, when

the appellants have been working in the higher grade

from 1994 onwards, it would not be equitable to disturb

their promotions…….”

29.More recently, this Court in Vivek Kaisth (supra),

following the judgment of the Constitution Bench in

Sivanandan C.T. and Others vs. High Court of Kerala and

Ors., (2023) SCC OnLine SC 994 protected the

23

appointments of the appellants even after finding that their

appointments were in excess of the advertised vacancies.

This Court held as under:-

"32. … …. Today, when we are delivering this judgment

the two appellants have already served as Judicial

Officers for nearly 10 years. Meanwhile, they have also

been promoted to the next higher post of Civil Judge

(Senior Division). In this process of their selection and

appointment (which has obviously benefitted them),

nothing has been brought to our notice which may

suggest any favouritism, nepotism or so-called blame as

to the conduct of these two appellants, in securing these

appointments. The High Court in fact notes this factor.

While placing the blame on the State Commission it

records that “………. there is nothing on record

suggestive of the fact that any mala fides were behind the

selection of respondents Nos.4 and 6……….”

“34. The appellants were not entitled for any equitable

relief in view of the High Court as they were the

beneficiaries of an illegality committed by the

Selection/appointing authority. But then it failed to take

this question further, which in our opinion, it ought to

have done. What the High Court never answered was as

to how much of this blame of “illegal” selection and

appointment would rest on the High Court (on its

administrative side). Undoubtedly, with all intentions of

timely filling of the vacancies, the High Court still cannot

escape the blame…..”

“36. What is also important for our consideration at this

stage is that the appellants in the present case have been

working as Judicial Officers now for nearly 10 years.

They are now Civil Judge (Senior Division). These

judicial officers now have a rich experience of 10 years of

judicial service behind them. Therefore, unseating the

24

present appellants from their posts would not be in public

interest. Ordinarily, these factors as we have referred

above, would not matter, once the very appointment is

held to be wrong. But we also cannot fail to consider that

the appellants were appointed from the list of candidates

who had successfully passed the written examination and

viva voce and they were in the merit list. Secondly, it is

nobody’s case that the appellants have been appointed by

way of favouritism, nepotism or due to any act which can

even remotely be called as “blameworthy”. Finally, they

have now been working as judges for ten years. There is

hence a special equity which leans in favour of the

appellants. In a recent Constitution Bench decision of this

Court in Sivanandan C.T. and Ors. v. High Court of

Kerala and Ors. (2023) SCC OnLine SC 994 though the

finding arrived at by this Court was that the Rules of the

game were changed by the High Court of Kerala by

prescribing minimum marks for the viva voce, which

were not existing in the Rules and therefore in essence the

appointment itself was in violation of the Rules, yet

considering that those persons who had secured

appointments under this selection have now been working

for more than 6 years it was held that it would not be in

public interest to unseat them.”

(emphasis supplied)

30.The situation of the appellants in the present case is no

different from the individuals whose appointments were

protected in the cases cited hereinabove. They had no

blameworthy conduct. They were bona fide applicants from

the open market. The alleged mischief, even according to the

State, was at the end of the School and its Manager. It will be

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a travesty of justice if relief is denied to the appellants.

Enormous prejudice would also occur to them.

31.Ms. Sansriti Pathak, learned counsel, who ably

defended the case for the State, made a valiant attempt to

draw support from the judgment in Sachin Kumar (supra).

In that case, what was in issue was the validity of the

cancellation of the selection process for recruitment to the

231 vacancies in the post of Grade 2 (DASS) (Head Clerk).

This Court, while reversing the judgment of the Tribunal and

the High Court held that in that case there was a basic denial

of access to Tier I examination. The Court further held that

the nature of the allegations was found substantiated upon the

careful examination by the first Committee whose report

showed that the credibility of the process itself had been

eroded. In that case, the total vacancies for which recruitment

was to be made was 231 and 61,179 candidates were found to

be eligible. The first Committee which enquired found that

there were serious irregularities including cheating and

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impersonation in the course of both Tier 1 Screening

examination and Tier 2 Main examination. The Secretary

(Vigilance) had also pointed out in his opinion there was a

huge difference between the number of applications received,

namely, 62056 and the number of candidates who had

appeared in the Tier 1 examination i.e. 8224, indicating

thereby that proper information regarding the exam was not

given to the candidates. The second Committee had observed

that no irregularity was found in the documents of the 281

candidates. The Tribunal holding that 281 candidates were

free from blame, set aside the order cancelling selection

process, clarifying that the appointments to be offered would

be subject to the ACB investigation. The High Court had

held that the scope of the order of the Tribunal should be

confined to the six applicants who have moved the Tribunal.

The High Court had also held that it was possible to

determine that at least in respect of 281candidates there was

no evidence of use of unfair means and that it was a case

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where separation of the tainted from the untainted was

possible.

32.Reversing the judgment of the Tribunal and the High

Court, this Court held that the irregularities were not confined

to acts of malpractice or unfair means on the part of specific

group of persons and that the report of the Committee found

deficiencies of a systemic nature which cast serious doubts on

the legitimacy of the entire process of recruitment. This Court

held that in such a situation where a decision is taken by the

government to cancel the entire process, the decision cannot

be held to be irrational or arbitrary.

33.This judgment in Sachin Kumar (supra) is clearly

distinguishable from the case at hand. First of all, Sachin

Kumar (supra) involved the cancellation of the selection

process before any appointments were made. No rights were

crystallized to any of the candidates. The issue was about the

validity of the cancellation of the selection process. Sachin

Kumar (supra) falls in that genre of cases concerning validity

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of cancellation of the selection process due to largescale

irregularities. The Case at hand is proximate to the facts and

ratio in Suresh Raghunath Bhokare (supra) and cases of

that ilk set out hereinabove.

34.We feel that the appellants were not at fault and the

State could not have abruptly stopped their salaries.

Accordingly, we set aside the judgments of the High Court

dated 15.09.2021 in Special Appeal Nos. 1435/2013 and

1445/2013 and direct that the State shall pay the salaries of

the appellants for the period from 25.06.1999 till January,

2002 in full. We also direct that insofar as the period from

October, 2005 till today is concerned, the State shall pay the

appellants 50% of the backwages. Since the appointment

order and the approval order are still in force, we declare that

the appellants have always been and are deemed to be in

service. Apart from 50% backwages, as ordered above, we

direct that all consequential benefits, including seniority,

notional promotion, if any, and fitment of salary and other

29

service benefits due, be granted to the appellants. We direct

the State to comply with these directions within four weeks

from today. We also direct that the appellants be allowed to

commence work within the said period of four weeks.

35.We notice from the record that the Committee of

Management, Junior High School, Bahorikpur was arrayed as

fifth respondent in the writ petition before the High Court.

They are also arrayed as fifth respondent before us in these

appeals. Before us, even though notice has been served on

the Committee of Management, Junior High School,

Bahorikpur, nobody has entered appearance. It appears that

even before the learned Single Judge and the Division Bench,

the Committee of Management did not appear. We grant

liberty to the State to issue a show-cause notice to the

Committee of Management (R-5), after setting out clearly the

charge pertaining to the alleged manipulation of the sanction

order and altering of the figure from two to three. After

receiving reply, if any, and after holding an inquiry with an

30

opportunity of personal hearing, the State will be at liberty to

pass an appropriate order. In the event of the Committee of

Management being exonerated, no further question will arise.

In the event of them being found guilty of the charge, in view

of any finding that may be arrived that the manipulation prior

to the recruitment was done at the level of the employees of

the school (whether by themselves or in collusion with the

officials), we grant liberty to the State to recover from the

Committee of Management one-third of the arrears, as

ordered to be paid, hereinabove. This direction will serve the

ends of justice in the matter.

36.The appeals are allowed in the above terms. No order as

to costs.

…....…………………J.

(J.K. Maheshwari)

…..…………………J.

(K.V. Viswanathan)

New Delhi;

January 03, 2024.

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