Union of India and Others vs O. Chakradhar

Brijesh Kumar, J.—Leave granted. Heard learned counsel for the parties.

The appellants, Union of India and others have impugnedthe judgment and order dated July 18, 2002 passed by the HighCourt of Andhra Pradesh, dismissing their writ petitionassailing the order passed by the Central AdministrativeTribunal by which the Tribunal had set aside the terminationof the services of the respondent.

The Railway Recruitment Board, Bangalore issued anadvertisement notice 1 of 1995 for recruitment to the posts ofJunior Clerk Cum Typist. In pursuance of the selection held,the respondent was appointed as Junior Clerk cum Typist on28.6.1996. After about three years of appointment, acommunication dated 21.4.1999 was received by the respondentfrom the Railway administration relevant part of which hasbeen quoted in the order passed by the Central AdministrativeTribunal. It is re-produced below:-

"Now it has come to notice of Railway Board thatRRB Bangalore has not subjected the candidates totypewriting test which was an essential recruitmentbesides there being certain serious irregularities inthe conductor of examination. The Railway Boardafter considering the matter totally and taking intoaccount the report of CBI and serious nature ofirregularities in conduct of selection have decidedto cancel the entire panel and to terminate theservices of all candidates appointed on SouthCentral Railway by giving the notice as per rules"

The service of the respondent was terminated by order dated18.8.1999. The respondent preferred a petition before theCentral Administrative Tribunal challenging the order of histermination among other on the ground that the respondent wasnot responsible for any kind of irregularity and in case it wascommitted by the Railway Recruitment Board he could not beheld responsible for it. It could not be said that each and everyselected candidate was involved in it, if at all. Hence, adecision to terminate the services of all the appointees or tocancel the selection was bad. The other ground of challenge isthat proper show cause notice should have been individuallyissued to each selected so as to enable him to submit his properexplanation in respect of the allegations of irregularities, inabsence of such a notice the termination order is bad being inviolation of principle of natural justice.

The Central Administrative Tribunal while deciding thecase held that merely saying that serious irregularities werecommitted in conducting the selection or that typing test wasnot held, such general allegations could not be enough to take adecision to cancel the whole selection. It is also observed thatthe show cause notice which was issued is silent about anyirregularity in the selection which could be attributable to theapplicant. Therefore the show cause notice was inadequate andincomplete. It has further been observed that the report of theCBI cannot be the only refuge for cancellation of the selection,but its contents should have been brought to the knowledge ofapplicant in a concise form to enable him to give a proper replybut it was not done by the administration. Thus in absence ofproper notice and opportunity to the candidate the order oftermination of the applicant stands vitiated. The Tribunal alsoobserved that the CBI report was also not placed before it. Withthe above findings the termination order was set asideproviding that proceedings could be initiated de novo byissuing fresh show cause notice in the light of the observationsmade in the judgment.

The writ petition preferred by the appellant against theorder of the Central Administrative Tribunal was dismissed asindicated earlier. The judgment of the High Court in the writpetition is also based mainly on the ground of violation ofprinciples of natural justice and that the notice which was givento 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 Generalappearing on behalf of the appellants has placed reliance on adecision reported in Krishan Yadav and another Vs. State of Haryana and others, and on the basis of the same it hasbeen vehemently urged that in a case where irregularitycommitted in the process of selection is all pervasive vitiatingthe whole selection in that event it would not be required thateach selected be served with individual show cause notice. Insuch circumstances it will be open to cancel the wholeselection. Shri P.S. Misra, learned senior counsel appearing forthe respondent has, however, urged that it was necessary tomake know to the respondent appointee about the exact andprecise nature of the irregularity committed as well asmisconduct if any attributable to him so that it could be possiblefor him to have explained the position which has otherwiseadversely affected the respondent. It is further submitted thatthe order of termination is in clear violation of Article 311 ofthe Constitution as on the basis of show cause notice asissued, it was incumbent upon the appellant to hold an enquiryand then alone pass an order of punishment not otherwise. It isalso submitted that according to the report of the CBI thebeneficiaries of the irregularities could be identified and thepersons against whom action has been recommended are namedtherein. Name of the respondent-appointee is not amongstthose against whom action has been recommended. Thesubmission is that only those who got benefit of theirregularities if any, committed by the Railway RecruitmentBoard, should have been issued notices and action could betaken against them. All others, including the respondent whohad nothing to do with any kind of irregularity and who havebeen selected on their own merit, their services were not liableto be terminated.

Before we proceed further, it will be appropriate toperuse the decisions relied upon by the parties. In the case ofKrishna Yadav (supra), the allegations of favouritism andarbitrariness in holding the selection for the post of TaxationInspectors by Subordinate Selection Board were made. Thosecandidates whose performance was excellent were not selected.An inquiry was ordered by the Supreme Court to be held by theCBI. The report revealed acts of favouritism selection withoutinterview even on the basis of fake or ghost interview,tempering with the records and fabrication of documents etc.In such circumstances it was held that entire selection wasvitiated even in respect of those who had already beenappointed and had been working for a past few years. It wasfurther observed individual cases of innocence have norelevance in such circumstances. So far the respondent isconcerned, reliance has been placed on a decision reported in Kashinath Dikshita Vs. Union of India (UOI)and Others, on the proposition that a case where reasonableopportunity of hearing is denied to a delinquent, it vitiates theinquiry and renders the order of punishment invalid. Therecannot be any doubt about the proposition of law aspropounded in the above noted case. Reasonable and adequateopportunity of hearing has always to be provided to adelinquent officer against whom disciplinary proceedings havebeen initiated by the Department. The case however, pertainsto an inquiry against an individual officer based on allegationsof misconduct on his part. Another case to which our attentionhas been drawn is reported in Mohinder Sain Garg Ors. Vs. State of Punjab and Others, In this case 1200candidates were called for the interview, for filing up 54 posts.It was not though a proper course but held that it would notvitiate the selection, more particularly when it could not besaid to be tainted with mala fide or ill motive. It was also heldthat allocation of 25% of total marks for viva voce test wasexcessive and the selection was found to have been vitiated butit was found that whole selection was not necessary to becancelled as those who had joined long before in pursuance tosuch a selection had not been impleaded as parties before theHigh Court and also in view of the fact that unsuccessfulcandidates who had chances of being selected if the marksallocated for the viva voce test had been reduced, were directedto be appointed to the posts which were kept vacant for them bymeans of interim orders of the Court.

In our view the nature and the extent of illegalitiesand irregularities committed in conducting a selection will haveto be scrutinized in each case so as to come to a conclusionabout future course of action to be adopted in the matter. If themischief played is no widespread and all pervasive, affectingthe result, so as to make it difficult to pick out the person whohave been unlawfully benefited or wrongfully deprived of theirselection, in such cases it will neither be possible nor necessaryto issue individual show cause notices to each selected. Theonly way out would be to cancel the whole selection. Motivebehind the irregularities committed also has its relevance.

The copy of the report of the CBI has been madeavailable to the Court by the learned Additional SolicitorGeneral and the same was served upon learned counsel for therespondent earlier. To find out the position in the present case,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 ofselection. The Chairman engages a printer for printing of thequestion paper and computer firms are given the job ofscrutinizing the applications. The examinations is conducted atdifferent centers and answer-sheets are sealed and put in boxesin custody of the Chairman in his room. The answer-sheets aregiven to the computer firm for evaluation. The Board carrieson a manual random check of the answer-sheets, anddepending upon the result, further call letters are prepared bythe computer firm. Since it was a recruitment for the post ofJunior Clerk-Cum-Typist, a candidate was required to have atyping speed of 30 words per minute in English or 25 words perminute in Hindi. As per relevant Circular the typing test is tobe conducted after the written test and those who quality in thetyping test also, they alone are to be called for final interview.In the present case, however, according to the report thecandidates during the course of their personal interview wererequired to give typing test before the members of theInterview Board within the time limit set for the purpose. Noseparate marks were awarded for typing nor the typing sheetshave been preserved by the Board. No candidate was qualifiedor disqualified on the basis of the typing test. About 100answer-sheets did not bear the signatures ofSupervisor/Assistant Supervisor in the column provided for thepurpose. It however, bore the signatures of the invigilator butnone from the said candidates is reported to be selected.According to the report, on scrutiny of answer-sheets of 109selected candidates, a clear difference of hand-writing wasnoticed in many answer-sheets. Out of these answer-sheets 14were particularly taken out for the purpose of investigation.According to the report, answer-sheet packets were stealthilyopened and the answers were filled up in the bank space left bythe examines. This happened during the period the bags of theanswer-sheets were in the custody of the Chairman. So far asthe interview is concerned, it is reported that the two Boardsconstituted for the interview did not have technical personnelas its member as per requirement. Each member was requiredto award marks to the candidate in the individual assessmentsheets provided to them and ;average was to be worked out butno average was worked out. The column for interview markswas later on filled up as per wishes of the Chairman andMember-Secretary of the Board ad signatures of the nonofficial members were obtained on the summary sheet later on.

It is mentioned in the report that huge amount of moneywas taken for selecting the candidates but none is comingforward in indicate as to who and how much one paid for it forfear of being in trouble. It is further reported that non officialChairman of the Board made payment of printing of theexamination paper etc. not to any firm but to one Gaja RajaYadav. It may also be mentioned that according to the report alarge number of applications were missing and postal orders ofthe missing applications were encashed and misappropriatedand even before the closing date of receiving the applications,it started sending applications to the computer firm for theirscrutiny. The C.B.I. has named five persons as accused in thereport namely the Chairman of the Railway Recruitment Board,Bangalore, who is a non-official, the Member-Secretary of theBoard, an officer of the Railways, one Shri HanumanthBhaiya, a Senior Clerk of the Railway Recruitment Board andGaja Raja Yadav, the private person to whom payment hadbeen made for printing of the question paper etc.

As per the report of the CBI whole selection smacks ofmala fide and arbitrariness. All norms are said to have beenviolated with impunity at each stage viz. right from the stage ofentertaining applications, with answer-sheets while in thecustody of Chairman, in holding typing test, in interview and inthe end while preparing final result. In such circumstances itmay not be possible to pick out or choose any few persons inrespect of whom alone the selection could be cancelled andtheir services in pursuance thereof could be terminated. Theillegality and irregularity are so inter-mixed with the wholeprocess of the selection that it becomes impossible to sort outright from the wrong or vice versa. The result of such aselection cannot be relied or acted upon. It is not a case wherea question of misconduct on the part of a candidate is to begone into but a case where those who conducted the selectionhave rendered it wholly unacceptable. Guilt of those whohave been selected is not the question under consideration butthe question is could such selection be acted upon in the matterof public employment? We are therefore of the view that it isnot one of those cases where it may have been possible to issueany individual notice of misconduct to each selected and seekhis explanation in regard to the large scale widespread and allpervasive illegalities and irregularities committed by those whoconducted the selection which may of course possibly be forthe benefit of those who have been selected but there may be afew who may have deserved selection otherwise but it isdifficult to separate the cases of some of the candidates fromthe rest even if there may be some. The decision in the case ofKrishna Yadav (supra) applies to the facts of the present case. The Railway Boar's decision to cancel the selection cannot befaulted with. The appeal therefore deserve to be allowed.

In the result, the appeal is allowed and the orders passedby the Tribunal and the High Court are set aside and the orderof 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 thematter in the light of the report of the CBI, so as to bring it to alogical conclusion.

There would be no order as to costs.