Rajesh vs Union of India (UOI)

K.S. Radhakrishnan J.

We are concerned in this case with the legality or otherwise of the decision taken by the Central Bureau of Investigation (hereinafter referred to as ''CBI'') to cancel the selection and appointment to the post Constable. Administrative Tribunal found no infirmity in the decision of the CBI and rejected the application preferred by the petitioner. Aggrieved by the same this Writ Petition has been preferred.

CBI. Invited applications for appointment to 134 post of Constable Male/Female which are available for direct recruitment in various branches located all over India. Qualifications prescribed for the post of Constable (motor Transport) are:

a) Secondary School Examination Pass or equivalent from a recognized Broad/Matriculate/10th Class pass.

b) Possession of valid Driving Licence for Light/Heavy four wheeler vehicles and experience in driving of the vehicle.

Age limit prescribed was between 18 to 27 years as on 24.4.2000. Upper age limit is relaxable by five years for SC/ST and three years for OBC. Candidates are subjected to physical efficiency test, written test as well as interview. Candidates who come in merit will have to undergo medical examination and to determine medical fitness for appointment. Written examination proposed was of objective type multiple choice questions. Candidates will have choice to write the examination either in Hindi or in English language. Written examination consists of subjects such as ''General Studies'' and ''Elementary Mathematics. Questions in General Studies consist of History, Geography, Civics, Current Affairs and General Knowledge as expected of a Class X (CBSE) student. Questions in Elementary Mathematics consist of Arithmetic, Algebra and Geometry as expected of a Class X (CBSE) student and only those candidates would be permitted to appear in the interview who score not less than 40% (forty percent) marks in the written examination. Candidates who qualify in the written examination will have to appear for an interview before an Interview Board. Interview would be of 20 marks. The entire selection process would be completed within four days.

In order to fill up various posts, CBI called for applications from candidates all over India. Candidates were in formed that written examination and interview would be held at the recruitment center at Hyderabad. Date of recruitment was fixed as 24.4.2000. Notification to that effect was published in various newspapers in the country. Several persons including the petitioner applied on the basis of the said advertisement. Petitioner and others were called for written test and interview which was held on 24.4.2000 and 30.4.2000 at Hyderabad. Petitioner passed written test as well as interview and was served with communication dated 25.5.2000 informing that he was selected for appointment to the post of Constable (Group c) post in the CBI in the pay scale of Rs. 3050-75-3950-80-4590. CBI Headquarters subsequently informed the Chief Medical Officer, Civil Hospital, Cherthala to medically examine the petitioner to determine the physical fitness and certify regarding the medical fitness along with candidate''s statement of declaration in the prescribed form duly attested to be forwarded to CBI. Headquarters latest by 7.6.2000. It was also ordered that while furnishing the certificate, measurement of height, chest and vision should also be clearly indicated. Candidate was also directed to report before Chief Medical Officer along with letter dated 25.5.2000. In pursuance to the aforementioned letter, petitioner had undergone the medical examination and was certified physically fit for appointment to the post of Constable in the CBI.

In the meantime some unsuccessful candidates who appeared for selection in Hyderabad filed O.A. before the Central Administrative Tribunal, Principal Bench, New Delhi challenging the selection process. Allegations of favoritism and nepotism on the part of CBI officials in the conduct of physical efficiency test was particularly highlighted in the said application. CBI contested the said application and prayed for dismissal of the same with exemplary costs. They filed affidavit before the Tribunal, New Delhi. It is relevant to refer to some portions of the said affidavit. The affidavit reads as follows:

"There is no substance in the allegation that large number of unfit candidates were selected. It is further clarified that the recruitment was conducted under the overall supervision of the Chairman Recruitment Board and every item of Physical Efficiency Test was conducted under the supervision of a Superintendent of Police There is no truth in the contention of the applicants that some undue favours have been shown to some candidates of the members of the Board of wards of their subordinates in Physical Efficiency Test. It is a figment of imagination only on the part of the applicants.

Allegations leveled in the para are baseless, false, frivolous and concocted, hence are disputed and denied. However, it is submitted with respect to this para that the arrangements for the written test were made in the CRPF ground in the evening and lighting arrangements were also to be made in advance to take care of failure of light, as a Precautionary measure. If taking of the test by sitting on the ground is agitated as inconvenient it was so for all the candidates without and discrimination and not alone for the applicants in this O.A.

The allegations of showing favour the wards of CBI employees is denied as most of the applicants in this petition are also relative/wards of CBI employees. The candidates mentioned in this para came in merit and so they were selected for appointment to the post of Constables in CBI

The recruitment was conducted in accordance with the guidelines and the list of successful candidates under various categories was declared as per the instructions of the Government."

Subsequent to the filing of the above affidavit, application was preferred on behalf of CBI before Central Administrative Tribunal, Principal Bench, New Delhi for disposal of the matter as infructuous on the ground of cancellation of recruitment process by competent authority. We may refer to some of the statements in the said application, which are extracted below:

"That the respondent ie., Director, Central Bureau of Investigation received other complaints alleging irregularities during the course of recruitment.

That on receipt of the complaints, Director, CBI had appointed a Committee under the Chairmanship of a Joint Director with two Deputy Inspectors General of Police, CBI as Members to look into the complaints.

That the Director, Central Bureau of Investigation considered the report of the Committee and issued orders for cancellation of the selection in respect of constables and the whole recruitment process held at Hyderabad with effect from 24.04.2000 to 30.4.2000.

That the applicants in the OA had prayed for quashing the whole recruitment process for making appointment against 134 posts of Constables Male/Female (Executive) and Five Constables (motor Transport) in CBI. Held in April 2000 at Hyderabad.

That in view of the above submission it is prayed that this OA may be dismissed as infructuous as Director, CBI has issued orders of cancellation of the whole recruitment process held at Hyderabad in April 2000 and nothing survives in the Original Petition."

On the basis of the said application the "Tribunal passed an order on 19.12.2000, which in extracted below:

"Shri. Gangwani has filed the application on behalf of the official respondents, stating that Director CBI has considered the report of the Committee and issued orders of cancellation of the selection in respect of Constables and entire recruitment process held at Hyderabad with effect from 24.4.2000 to 30.4.2000. In this background we find that the relief claimed by the applicants having already been granted by cancellation of the entire recruitment process of the Constables, the OA has been rendered infructuous. The same is, therefore, dismissed having become infructuous."

We find after the dismissal of the said O.A. CBI. Sent communications to various selected candidates informing them that they have cancelled the selection. Petitioner received the following communication dated 8.1.2001 which reads as follows:

"You were selected for appointment to the post of Constable in CBI in pursuance of recruitment process at Hyderabad and were asked to undergo Medical Test vide this office letter of even number dated 25.5.2000.

Now, the aforesaid selection process for the post of Constables and the list of selected candidates has been cancelled by the Competent Authority of CBI."

Petitioner then approached the Tribunal, Ernakulam Bench by filing O.A. No.327 of 2001 challenging the communication dated 8.1.2001. The Tribunal dismissed the O.A. at the admission stage on 10.4.2001 stating as follows:

"The applicant having been selected it is possible to understand his heart burn while he was told that the selection as also the panel has been set aside, since he had already spent time and energy as also money for the futile process. However, the question that is to be considered is whether that heart burn is a Grievance for which there is a Remedy. If the action of the Director CBI in canceling the whole process of selection and the select panel is unjustified, arbitrary of irrational or if it was colourable exercise of power, the Tribunal can justify interfere, But as is evident from the statement filed by the respondents in O.A. 1034/2000 of the Principal Bench, the CBI has cancelled the selection and the panel being satisfied from the report of a Committee headed by the Joint Director with two Deputy Inspector Generals that there has been irregularities in the selection vitiating the process, The above action having been taken bonafide and in public interest after due deliberation, does not call for judicial intervention. The applicant does not have a legitimate cause of action."

Aggrieved by the said order this Writ Petition has been preferred.

Senior Counsel Sri. Mathai Paikadey contended that there is no justifiable reason for the CBI to cancel the selection for the post of Constables. Counsel submitted that petitioner and several others had undergone the selection process at Hyderabad. After undergoing the entire selection process. Physical efficiency test, written test etc. petitioner was informed that he was selected for appointment to the post of Constable and was asked to undergo medical examination. Accordingly he had undergone medical test successfully and was awaiting formal appointment order. At that juncture he was served with communication sating that they have cancelled the selection process. Counsel submitted petitioner has got a Vested right to get appointment to the post since selection process was not tainted by any illegality. Counsel submitted entire action of the CBI is unjustified, arbitrary and irrational and colourable exercise of power. In order to establish his contention, counsel placed reliance on the several decisions of the apex court including Benny T.D.v. Registrar of Co-operative Societies 1985 (5) SCC 269 K. Vijayalakshmi Vs. Union of India (UOI) and Others, M.P. Oil Extraction and Another Vs. State of M.P. and Others,

Counsel appearing for the CBI. Sri. K.P. Satheesan submitted that Director of CBI. Had received complaints alleging favouritism and nepotism in the selection of Constable on the basis of the said complaint he constituted a Committee with Joint Director as Chairman and two D.I.Gs of the Police as Members. The Committee after examining the entire process found allegations of favouritism and nepotism are baseless. On scrutiny of the answer papers the Committee found certain discrepancies. We notice in some answer sheets incorrect answers have been marked as correct and allotted marks whereas in some other answer sheets correct answers have been marked incorrect and denied marks. It is also noticed that in some answer sheets the examiner missed to evaluate one or more answers. In some answer sheets it was noticed that two marks were awarded for question No. 1 which actually carried only one mark. Because of the aforesaid Discrepancies in the valuation of answer sheets the committee found that 31 ineligible candidates got included in the select list and an equal number of eligible candidates were denied of their opportunity. In such circumstances it was felt it would be in public interest that whole process of recruitment be cancelled.

When the matter came up for hearing we had directed the CBI. to make available the Committee Report. Consequently they made available the report. We perused the report.

We find the Committee after evaluating the entire process of selection found that the allegation of favouritism and nepotism is baseless. This was the stand taken by the CBI before the Central Administrative Tribunal, Principal Bench, New Delhi as well. On going through the report of the Committee, we find the entire selection process has been cancelled due to the following discrepancies:

(i) In some answer sheets incorrect answers have been marked as correct and allotted marks, whereas in some other answer sheets correct answers have been marked incorrect and denied marks.

(ii) In some answer sheets the examiner missed to evaluate one or more answers;

(iii) In some answer sheets it was noticed that two marks were Awarded for question No. 1 which actually carried only 1 mark.

Because of the aforesaid discrepancies in the valuation of answer sheets the Committee found that 31 ineligible candidates got included in the select list and an equal number of eligible candidates were denied of their opportunity. The question to be considered is whether due to the above-mentioned discrepancies alone the whole selection process be cancelled.

A contention was raised that the CBI has got the freedom to cancel the entire selection process on their own volition and that the petitioner and persons who are likely to be selected on the basis of the selection process have no legal right to question the wisdom of the decision of the CBI Counsel submitted even mere inclusion in the rank list would not confer any right to the petitioner. We find it difficult to accept the contention of the counsel for the CBI in toto. It is well settled that non-arbitrariness is an ingredient of Article 14 pervading the entire realm of State action governed by Article 14. Natural justice is the antithesis of arbitrariness. Public authority shall not act unfairly it must act reasonably and mete out fair treatment to all candidates.

Apex Court in N.T. Bevin Katti, etc., Vs. Karnataka public Service Commission and others, held that candidates who applied and undergone written test or selection process have a vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement. Candidates have right to be considered in accordance with the terms and conditions set out in the advertisement. It is true that the candidates have no absolute right in the matter. We may indicate that even then he has got a right to be treated fairly. It is one of the fundamental rights of our Constitution that ever citizen is protected against arbitrariness on the part of the officers. In Shankarsan Dash Vs. Union of India, the Constitution Bench of the Apex Court held as follows:

"Even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to be appointed against the existing 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 bonafide 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.

As held by the Apex Court in Delhi Transport Corporation v. DTC Mazdoor Congress 1991 (1) Suppl. SCC 600 right to public employment and its concomitant right to livelihood receive their succour and nourishment in the canopy of the protective umbrella of Articles 14, 16(1)(g) and 21. Aforementioned judicial pronouncements positively show that even though persons who have been included have no right to get appointment they have always got a legal right to challenge the arbitrary action if any, on the part of the appointing authority in canceling the selection or recruitment process.

In this case the reasons stated by the CBI for cancellation of the entire selection process are arbitrary and will not stand in the eye of law. After having found the selection process is not tainted with any illegality and that in the absence of any complaint against examinees indulging in malpractices mere fact that CBI themselves have committed certain mistakes in the valuation and the answer sheet would not vitiate the entire selection process. We are of the view in this case discrepancy if any detected in the answer sheets is a discrepancy which has to be corrected by CBI themselves for which persons like the petitioner cannot be penalized. We have therefore no hesitation in the facts and circumstances of the case to direct the CBI to complete the entire recruitment process. CBI must take steps to correct the discrepancies and rearrange the select list and complete the selection process. This would be completed within a period of two months from the date of receipt of a copy of this judgment. It is so ordered. The order of the Tribunal therefore would stand set aside. Original Petition is allowed as above.