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CASE NO.:

Appeal (civil) 1326 of 2002

PETITIONER:

UNION OF INDIA & ORS.

Vs.

RESPONDENT:

O. CHAKRADHAR

DATE OF JUDGMENT: 19/02/2002

BENCH:

G.B. Pattanaik & Brijesh Kumar

JUDGMENT:

Brijesh Kumar, J.

Leave granted. Heard learned counsel for the parties.

The appellants, Union of India and others have impugned

the judgment and order dated July 18, 2002 passed by the High

Court of Andhra Pradesh, dismissing their writ petition

assailing the order passed by the Central Administrative

Tribunal by which the Tribunal had set aside the termination

of the services of the respondent.

The Railway Recruitment Board, Bangalore issued an

advertisement notice 4 of 1995 for recruitment to the posts of

Junior Clerk Cum Typist. In pursuance of the selection held,

the respondent was appointed as Junior Clerk cum Typist on

28.6.1996. After about three years of appointment, a

communication dated 21.4.1999 was received by the respondent

from the Railway administration relevant part of which has

been quoted in the order passed by the Central Administrative

Tribunal. It is re-produced below:-

"Now it has come to notice of Railway Board that

RRB Bangalore has not subjected the candidates to

typewriting test which was an essential recruitment

besides there being certain serious irregularities in

the conduct of examination. The Railway Board

after considering the matter totally and taking into

account the report of CBI and serious nature of

irregularities in conduct of selection have decided

to cancel the entire panel and to terminate the

services of all the candidates appointed on South

Central Railway by giving the notice as per rules"

The service of the respondent was terminated by order dated

18.8.1999. The respondent preferred a petition before the

Central Administrative Tribunal challenging the order of his

termination among other on the ground that the respondent was

not responsible for any kind of irregularity and in case it was

committed by the Railway Recruitment Board he could not be

held responsible for it. It could not be said that each and every

selected candidate was involved in it, if at all. Hence, a

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decision to terminate the services of all the appointees or to

cancel the selection was bad. The other ground of challenge is

that proper show cause notice should have been individually

issued to each selectee so as to enable him to submit his proper

explanation in respect of the allegations of irregularities, in

absence of such a notice the termination order is bad being in

violation of principles of natural justice.

The Central Administrative Tribunal while deciding the

case held that merely saying that serious irregularities were

committed in conducting the selection or that typing test was

not held, such general allegations could not be enough to take a

decision to cancel the whole selection. It is also observed that

the show cause notice which was issued is silent about any

irregularity in the selection which could be attributable to the

applicant. Therefore the show cause notice was inadequate and

incomplete. It has further been observed that the report of the

CBI cannot be the only refuge for cancellation of the selection,

but its contents should have been brought to the knowledge of

applicant in a concise form to enable him to give a proper reply

but it was not done by the administration. Thus in absence of

proper notice and opportunity to the candidate, the order of

termination of the applicant stands vitiated. The Tribunal also

observed that the CBI report was also not placed before it. With

the above findings the termination order was set aside

providing that proceedings could be initiated de novo by

issuing fresh show cause notice in the light of the observations

made in the judgment.

The writ petition preferred by the appellant against the

order of the Central Administrative Tribunal was dismissed as

indicated earlier. The judgment of the High Court in the writ

petition is also based mainly on the ground of violation of

principles of natural justice and that the notice which was given

to the candidates was vague which amounted to no notice at all.

Hence, no proper cause could be shown against such a notice.

Shri Mukul Rohtagi, learned Additional Solicitor General

appearing on behalf of the appellants has placed reliance on a

decision reported in 1994 (4) S.C.C. 165 Krishna Yadav

versus State of Haryana and on the basis of the same it has

been vehemently urged that in a case where irregularity

committed in the process of selection is all pervasive vitiating

the whole selection in that event it would not be required that

each selectee be served with individual show cause notice. In

such circumstances it will be open to cancel the whole

selection. Shri P.S. Misra, learned senior counsel appearing for

the respondent has, however, urged that it was necessary to

make known to the respondent appointee about the exact and

precise nature of the irregularity committed as well as

misconduct if any attributable to him so that it could be possible

for him to have explained the position which has otherwise

adversely affected the respondent. It is further submitted that

the order of termination is in clear violation of Article 311 of

the Constitution as on the basis of show cause notice as

issued, it was incumbent upon the appellant to hold an enquiry

and then alone pass an order of punishment, not otherwise. It is

also submitted that according to the report of the CBI the

beneficiaries of the irregularities could be identified and the

persons against whom action has been recommended are named

therein. Name of the respondent-appointee is not amongst

those against whom action has been recommended. The

submission is that only those who got benefit of the

irregularities if any, committed by the Railway Recruitment

Board, should have been issued notices and action could be

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taken against them. All others, including the respondent who

had nothing to do with any kind of irregularity and who have

been selected on their own merit , their services were not liable

to be terminated.

Before we proceed further, it will be appropriate to

peruse the decisions relied upon by the parties. In the case of

Krishna Yadav (supra), the allegations of favoritism and

arbitrariness in holding the selection for the post of Taxation

Inspectors by Subordinate Selection Board were made. Those

candidates whose performance was excellent were not selected.

An inquiry was ordered by the Supreme Court to be held by the

CBI. The report revealed acts of favoritism, selection without

interview even on the basis of fake or ghost interview,

tampering with the records and fabrication of documents etc.

In such circumstances it was held that entire selection was

vitiated even in respect of those who had already been

appointed and had been working for a past few years. It was

further observed individual cases of innocence have no

relevance in such circumstances. So far the respondent is

concerned, reliance has been placed on a decision reported in

1986 (3) S.C.C. 229 Kashi Nath Dikshita versus Union of India

and others on the proposition that a case where reasonable

opportunity of hearing is denied to a delinquent, it vitiates the

inquiry and renders the order of punishment invalid. There

cannot be any doubt about the proposition of law as

propounded in the above noted case. Reasonable and adequate

opportunity of hearing has always to be provided to a

delinquent officer against whom disciplinary proceedings have

been initiated by the Department. The case however, pertains

to an inquiry against an individual officer based on allegations

of misconduct on his part. Another case to which our attention

has been drawn is reported in 1991 (1) S.C.C. 662 Mohinder

Sain Garg Versus State of Punjab and others. In this case 1200

candidates were called for the interview; for filling up 54 posts.

It was not though a proper course but held that it would not

vitiate the selection, more particularly when it could not be

said to be tainted with mala fide or ill motive. It was also held

that allocation of 25% of total marks for viva voce test was

excessive and the selection was found to have been vitiated but

it was found that whole selection was not necessary to be

cancelled as those who had joined long before in pursuance to

such a selection had not been impleaded as parties before the

High Court and also in view of the fact that unsuccessful

candidates who had chances of being selected if the marks

allocated for the viva voce test had been reduced, were directed

to be appointed to the posts which were kept vacant for them by

means of interim orders of the Court.

In our view the 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.

The copy of the report of the CBI has been made

available to the Court by the learned Additional Solicitor

General and the same was served upon learned counsel for the

respondent earlier. To find out the position in the present case,

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we may have to scrutinize the report of the CBI.

It first indicates that Railway Recruitment Board,

Bangalore has not laid down any set procedure for holding of

selection. The Chairman engages a printer for printing of the

question paper and computer firms are given the job of

scrutinizing the applications. The examination is conducted at

different centres and answer-sheets are sealed and put in boxes

in custody of the Chairman in his room. The answer-sheets are

given to the computer firm for evaluation. The Board carries

on a manual random check of the answer-sheets, and

depending upon the result, further call letters are prepared by

the computer firm. Since it was a recruitment for the post of

Junior Clerk-cum-Typist, a candidate was required to have a

typing speed of 30 words per minute in English or 25 words per

minute in Hindi. As per relevant Circular the typing test is to

be conducted after the written test and those who qualify in the

typing test also, they alone are to be called for final interview.

In the present case, however, according to the report the

candidates during the course of their personal interview were

required to give typing test before the members of the

Interview Board within the time limit set for the purpose. No

separate marks were awarded for typing nor the typing sheets

have been preserved by the Board. No candidate was qualified

or disqualified on the basis of the typing test. About 100

answer-sheets did not bear the signatures of

Supervisor/Assistant Supervisor in the column provided for the

purpose. It however, bore the signatures of the invigelator but

none from the said candidates is reported to be selected.

According to the report, on scrutiny of answer-sheets of 109

selected candidates, a clear difference of hand-writing was

noticed in many answer-sheets. Out of these answer-sheets 14

were particularly taken out for the purpose of investigation.

According to the report, answer-sheet packets were stealthily

opened and the answers were filled up in the blank space left by

the examinees. This happened during the period the bags of the

answer-sheets were in the custody of the Chairman. So far as

the interview is concerned, it is reported that the two Boards

constituted for the interview did not have technical personnel

as its member as per requirement. Each member was required

to award marks to the candidate in the individual assessment

sheets provided to them and ;average was to be worked out but

no average was worked out. The column for interview marks

was later on filled up as per wishes of the Chairman and

Member-Secretary of the Board and signatures of the non

official members were obtained on the summary sheet later on.

It is mentioned in the report that huge amount of money

was taken for selecting the candidates but none is coming

forward to indicate as to who and how much one paid for it for

fear of being in trouble. It is further reported that non official

Chairman of the Board made payment of printing of the

examination paper etc. not to any firm but to one Gaja Raja

Yadav. It may also be mentioned that according to the report a

large number of applications were missing and postal orders of

the missing applications were encashed and misappropriated

and even before the closing date of receiving the applications,

it started sending applications to the computer firm for their

scrutiny. The C.B.I. has named five persons as accused in the

report namely the Chairman of the Railway Recruitment Board,

Bangalore, who is a non-official, the Member-Secretary of the

Board, an officer of the Railways, one Shri Hanumanth

Bhaiya, a Senior Clerk of the Railway Recruitment Board and

Gaja Raja Yadav, the private person to whom payment had

been made for printing of the question paper etc.

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As per the report of the CBI whole selection smacks of

mala fide and arbitrariness. All norms are said to have been

violated with impunity at each stage viz. right from the stage of

entertaining applications, with answer-sheets while in the

custody of Chairman, in holding typing test, in interview and in

the end while preparing final result. In such circumstances it

may not be possible to pick out or choose any few persons in

respect of whom alone the selection could be cancelled and

their services in pursuance thereof could be terminated. The

illegality and irregularity are so inter-mixed with the whole

process of the selection that it becomes impossible to sort out

right from the wrong or vice versa. The result of such a

selection cannot be relied or acted upon. It is not a case where

a question of misconduct on the part of a candidate is to be

gone into but a case where those who conducted the selection

have rendered it wholly unacceptable. Guilt of those who

have been selected is not the question under consideration but

the question is could such selection be acted upon in the matter

of public employment? We are therefore of the view that it is

not one of those cases where it may have been possible to issue

any individual notice of misconduct to each selectee and seek

his explanation in regard to the large scale widespread and all

pervasive illegalities and irregularities committed by those who

conducted the selection which may of course possibly be for

the benefit of those who have been selected but there may be a

few who may have deserved selection otherwise but it is

difficult to separate the cases of some of the candidates from

the rest even if there may be some. The decision in the case of

Krishna Yadav (supra) applies to the facts of the present case.

The Railway Board's decision to cancel the selection cannot be

faulted with. The appeal therefore deserve to be allowed.

In the result, the appeal is allowed and the orders passed

by the Tribunal and the High Court are set aside and the order

of termination of the services of the respondent is upheld.

The copy of the CBI report has been placed on record.

The administration shall do well in taking action pursuing the

matter in the light of the report of the CBI, so as to bring it to a

logical conclusion.

There would be no order as to costs.

---------------------J.

(G.B. Pattanaik)

--------------------J.

(Brijesh Kumar)

February 19 , 2002