Full Judgment Text
$~80 to 89
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2268/2020, CM APPL. 7921/2020, CM APPL.
44237/2021 & CM APPL. 17915/2022
NEHRU YUVA KENDRA SANGATHAN .....Petitioner
Through: Mr. Vineet Dhanda, CGSC with
Mr. Karthik Sood and Mr. Saksham Sethi,
Advs.
versus
ANSHU .....Respondent
Through: Mr. Anuj Aggarwal, Mr. Tanya
Rose, Mr. Mansas Verma, Ms. Kritika
Matta, Mr. Avinash Kumar and Mr. Pradeep
Kumar, Advs.
+ W.P.(C) 6550/2020, CM APPL. 22917/2020, CM APPL.
25426/2020 & CM APPL. 44314/2021
NEHRU YUVA KENDRA SANGATHAN .....Petitioner
Through: Mr. Vineet Dhanda, CGSC with
Mr. Karthik Sood and Mr. Saksham Sethi,
Advs.
versus
VINAY MALIK AND OTHERS .....Respondents
Through: Mr. Anuj Aggarwal, Mr. Tanya
Rose, Mr. Mansas Verma, Ms. Kritika
Matta, Mr. Avinash Kumar and Mr. Pradeep
Kumar, Advs.
Mr. Nitin K. Gupta, Mr. Sanchay Mehrotra
and Ms. Pranjal Vyas, Advs. for R-2 to 5.
+ W.P.(C) 6551/2020, CM APPL. 22919/2020, CM APPL.
25431/2020 & CM APPL. 44240/2021
NEHRU YUVA KENDRA SANGATHAN .....Petitioner
Signature Not Verified
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KUMAR
Signing Date:19.11.2024
13:50:27
W.P.(C) 2268/2020 and other connected matters Page 1 of 23
Through: Mr. Vineet Dhanda, CGSC with
Mr. Karthik Sood and Mr. Saksham Sethi,
Advs.
versus
KARAN PAHWA .....Respondent
Through:
+ W.P.(C) 6552/2020, CM APPL. 22921/2020, CM APPL.
25425/2020 & CM APPL. 44238/2021
NEHRU YUVA KENDRA SANGATHAN .....Petitioner
Through: Mr. Vineet Dhanda, CGSC with
Mr. Karthik Sood and Mr. Saksham Sethi,
Advs.
versus
JYOTI DAHIYA .....Respondent
Through:
+ W.P.(C) 6572/2020, CM APPL. 22978/2020, CM APPL.
25428/2020 & CM APPL. 44245/2021
NEHRU YUVA KENDRA SANGATHAN .....Petitioner
Through: Mr. Vineet Dhanda, CGSC with
Mr. Karthik Sood and Mr. Saksham Sethi,
Advs.
versus
RAGHAV .....Respondent
Through:
+ W.P.(C) 6578/2020, CM APPL. 22987/2020, CM APPL.
25427/2020 & CM APPL. 44266/2021
NEHRU YUVA KENDRA SANGATHAN .....Petitioner
Through: Mr. Vineet Dhanda, CGSC with
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
Signing Date:19.11.2024
13:50:27
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Mr. Karthik Sood and Mr. Saksham Sethi,
Advs.
versus
RITU & ORS. .....Respondents
Through: Mr. Anuj Aggarwal, Mr. Tanya
Rose, Mr. Mansas Verma, Ms. Kritika
Matta, Mr. Avinash Kumar and Mr. Pradeep
Kumar, Advs.
Mr. Nitin K. Gupta, Mr. Sanchay Mehrotra,
Ms. Nisha Sharma and Ms. Pranjal Vyas,
Advs. for R-3 and 5.
+ W.P.(C) 6581/2020, CM APPL. 22989/2020, CM APPL.
25429/2020 & CM APPL. 44239/2021
NEHRU YUVA KENDRA SANGATHAN .....Petitioner
Through: Mr. Vineet Dhanda, CGSC with
Mr. Karthik Sood and Mr. Saksham Sethi,
Advs.
versus
SACHIN .....Respondent
Through:
+ W.P.(C) 6583/2020, CM APPL. 22991/2020, CM APPL.
25423/2020 & CM APPL. 44272/2021
NEHRU YUVA KENDRA SANGATHAN .....Petitioner
Through: Mr. Vineet Dhanda, CGSC with
Mr. Karthik Sood and Mr. Saksham Sethi,
Advs.
versus
DEVENDRA KUMAR .....Respondent
Through:
+ W.P.(C) 6584/2020, CM APPL. 22993/2020, CM APPL.
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
Signing Date:19.11.2024
13:50:27
W.P.(C) 2268/2020 and other connected matters Page 3 of 23
25424/2020 & CM APPL. 44267/2021
NEHRU YUVA KENDRA SANGATHAN .....Petitioner
Through: Mr. Vineet Dhanda, CGSC with
Mr. Karthik Sood and Mr. Saksham Sethi,
Advs.
versus
MAHAK .....Respondent
Through:
+ W.P.(C) 6591/2020, CM APPL. 23005/2020, CM APPL.
25430/2020 & CM APPL. 44271/2021
NEHRU YUVA KENDRA SANGATHAN .....Petitioner
Through: Mr. Vineet Dhanda, CGSC with
Mr. Karthik Sood and Mr. Saksham Sethi,
Advs.
versus
SHALU .....Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
JUDGMENT (ORAL)
% 12.11.2024
1. The respondents in these writ petitions applied for appointment
1
as District Youth Coordinators in the Nehru Yuva Kendra Sangathan .
The process of appointment involved their undertaking an online
examination, to be conducted by the Institute of Banking Personnel
1
“NYKS” hereinafter
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2
Selection . The written examination was conducted on 30 April 2019.
Results were declared on 5 June 2019. The respondents were found to
be successful in the written examination and were shortlisted for
interview. The interview was conducted between 8 and 13 July 2019.
A final list of selected candidates was displayed on 7 August 2019.
All the respondents in these writ petitions figured in the list of selected
candidates so displayed. On 16 August 2019, offers of appointment
were issued to the respondents. The respondents accepted the offers.
Police verification and medical examination of the respondents was
conducted on 19 August 2019. Documents were required to be
submitted by the respondents for verification on 20 August 2019.
This was also done.
2. Pursuant thereto, orders of posting were issued on 20 August
2019 to 79 candidates. The respondents were not issued any orders of
posting. They, therefore, represented to the petitioners on 23
September 2019 and 1 October 2019. On the representation eliciting
no response, the respondents approached the Central Administrative
3
Tribunal by way of OA 3004/2019.
3. The Tribunal passed an interim order on 11 October 2019,
directing the petitioners to consider the feasibility of issuing orders of
appointment to the respondents. The order, however, could not be
implemented and no orders of appointment came to be issued to the
respondents.
2
“IBPS” hereinafter
3
“the Tribunal” hereinafter
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4. On 28 November 2019, the NYKS issued an order cancelling
the candidature of the respondents. The reason for this was,
purportedly, because they had been found to have been using unfair
means in the online examination which was conducted on 30 April
2019.
5. As the Tribunal passed no interim order, 17 other candidates,
who had also participated in the examination, were appointed against
the petitioners’ vacancies, vide order dated 6 January 2020. However,
the respondents did not choose to implead any of the 17 appointed
candidates as respondents in the OA.
6. Mr. Vineet Dhanda, learned Counsel for the petitioners, submits
that the candidature of 21 candidates was cancelled, of which 10
approached the Tribunal.
7. Before the Tribunal, NYKS submitted that, on 16 September
2019, a complaint had been received from one Mohit, alleging that
unfair means had been employed during the conducting of the online
examination at the Shimla and Karnal Centres and that a large number
of candidates from the said centres were selected. This, according to
the said complaint, threw doubt regarding the fairness of the manner
in which the examination was conducted at the said centres. This
complaint, according to the NYKS, had been forwarded to the IBPS
and the cancellation of the respondents’ candidature was pursuant to a
report from the IBPS.
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8. The OAs filed by the respondents before the Tribunal stand
adjudicated by the impugned judgment dated 30 January 2020.
9. Aggrieved thereby, NYKS has filed the present petition before
this Court, invoking Article 226 of the Constitution of India.
10. Re. cancellation of the respondents’ candidatures
10.1 Fundamentally, the Tribunal has proceeded on the basis that the
respondents’ candidatures could not have been cancelled without
informing them of the fact that it had been found that they had used
unfair means, and affording them an opportunity to rebut the said
allegation. Paras 11 to 15 of the impugned judgment of the Tribunal
may be reproduced thus:
“11. It is here, deviation or departure took place. Though the
offer of appointment was issued simultaneously to all the 100
candidates and the applicants have accepted the offer, their names
were not included in the order dated 20.09.2019. In case there
existed any reasons for doing that, the respondents were under
obligation to convey them . One after the other, the applicants went
on approaching the Tribunal, and even though an interim order was
passed, the respondents proceeded to issue the orders dated
28.11.2019. It reads:
“1. Please refer to this office reference no. NYKS/
Pers.: Apptmnt/DYV/809/2019 dated 16.08.2019.
2. As you are aware, it was already indicated in the
Instructions attached to the Call letter for Online Exammation-
2019 (Batch-II) that “Your response (answer) will be analysed
with other candidates to detect patterns of similarity of right
and wrong answers. If in the analytical procedure adopted in
this regard, it is inferred/concluded that the responses have
been shared and scores obtained /are not genuine/valid, your
candidature may be cancelled and/or the result withheld.”
3. After conducting post-exam analysis of the answer
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sheets, it has since been informed by IBPS that you were
found to have used unfair means in the online examination
conducted on 30.04.2019.
4. Therefore, as already indicated to you in the
Guidelines, your candidature in the said online examination
hereby stands cancelled. Consequently, the offer of
appointment letter NO.NYKS/Pers:Appttmnt/DYV/809/2019
dated 16.08.2019 also stands canceled and withdrawn.
5. Please also note that NYKS reserves its right to take
appropriate legal action both Civil and/or Criminal against
you.
6. This issues with the approval of the Competent
Authority."
12. There is no reference to any specific acts or omission on the
part of the applicants, warranting such action. Everything was
pushed under the carpet of a clause contained in the call letter
issued to the applicants and the so-called analysis by IBPS.
13. It is not uncommon that malpractices take place in the
examinations conducted by various agencies. The law is fairly well
settled that if any candidate is found to have resorted to
malpractice, the agencies are entitled to take punitive actions.
However, two aspects become relevant. The first is that before any
punitive action is taken against a candidate, be it in the form of
cancellation of candidature or debarring him for future
examinations, the law requires that a show cause notice must be
issued to him, indicating the nature of allegations. It is only after
the explanation offered by the candidate is considered, that a final
order can be passed.
14. The second is that the action of this nature, if any, must be
taken before the final results are declared. Once the results of
candidates are declared, the agency cannot re-open the issue, that
too, selectively.
15. Viewed in this context, the steps taken by the respondents
cannot be countenanced. Firstly, no notice whatever was issued to
the applicants for cancellation of offer of appointment or the order
of provisional appointment.”
10.2 In arriving at this decision, the Tribunal has relied on the
Constitution Bench of the Supreme Court in Board of High School
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4
and Intermediate Education, UP v Ghanshyam Das Gupta .
10.3 The decision of the Tribunal is unexceptionable. The issue is
fully covered by the Constitution Bench decision in Ghashyam Das
Gupta , not only in law but even on facts. In that case, too, the
candidature three students of a college, who participated in an
examination, and who had passed, were cancelled without disclosing
any reason. The candidates petitioned the High Court, before whom
the authorities contended that they had resorted to unfair means and
that, therefore, their candidature had been rightly cancelled. The
candidates contended that they were entitled to an opportunity to rebut
the allegations against them before cancellation of their candidature.
10.4 The Supreme Court observed, in para 3 of the report, that it was
concerned with only one of the contentions advanced by the
candidates, “namely, whether the respondents were entitled to a
hearing before the appellant decided to cancel the results”. The
Division Bench of the High Court ultimately held in favour of the
candidates, that they were entitled to an opportunity of hearing before
their candidature was cancelled. Aggrieved thereby, the Board of
Higher Education appealed to the Supreme Court.
10.5 The Supreme Court held thus:
“7. The first question therefore which falls for consideration is
whether any duty is cast on the Committee under the Act and
Regulations to act judicially and therefore it is a quasi-judicial
body. What constitutes “a quasi-judicial act” was discussed in
5
the Province of Bombay v Kusaldas S. Advani . The principles
4
AIR 1962 SC 1110
5
(1950) SCR 621, 725
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| have been summarised by Das, J. (as he was then) at p. 725 in | |
|---|---|
| these words: | |
| “The principles, as I apprehend them are: | |
| (i) that if a statute empowers an authority, not being a | |
| court in the ordinary sense, to decide disputes arising out | |
| of a claim made by one party under the statute which claim | |
| is opposed by another party and to determine the respective | |
| rights of the contesting parties who are opposed to each | |
| other, there is a lis and prima facie and in the absence of | |
| anything in the statute to the contrary it is the duty of the | |
| authority to act judicially and the decision of the authority | |
| is a quasi-judicial act; and | |
| (ii) that if a statutory authority has power to do any act | |
| which will prejudicially affect the subject, then, although | |
| there are not two parties apart from the authority and the | |
| contest is between the authority proposing to do the act and | |
| the subject opposing it, the final determination of the | |
| authority will yet be a quasi-judicial act provided the | |
| authority is required by the statute to act judicially. | |
| In other words, while the presence of two parties besides the | |
| deciding authority will prima facie and in the absence of any other | |
| factor impose upon the authority the duty to act judicially, the | |
| absence of two such parties is not decisive in taking the act of the | |
| authority out of the category of quasi-judicial act if the authority is | |
| nevertheless required by the statue to act judicially.” | |
| 8. These principles have been acted upon by this Court in later | |
| cases : see Nagendra Nath Bora v Commissioner of Hills | |
| Division Appeals, Assam6, Radheshyam Khare v State of Madhya | |
| Pradesh7, Gullapalli Nageswara Rao v Andhra Pradesh State | |
| Road Transport Corporation8, and Shivji Nathubha v Union of | |
| India9. Now it may be mentioned that the statute is not likely to | |
| provide in so many words that the authority passing the order is | |
| required to act judicially; that can only be inferred from the express | |
| provisions of the statute in the first instance in each case and no | |
| one circumstance alone will be determinative of the question | |
| whether the authority set up by the statute has the duty to act | |
| judicially or not. The inference whether the authority acting under | |
| a statute where it is silent has the duty to act judicially will depend | |
| on the express provisions of the statute read along with the nature |
6
1958 SCR 1240
7
(1959) SCR 1440
8
1959 Supp (1) SCR 319
9
(1960) 2 SCR 775
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| of the right affected, the manner of the disposal provided, the | |
|---|---|
| objective criterion if any to be adopted, the effect of the decision on | |
| the person affected and other indicia afforded by the statute. A | |
| duty to act judicially may arise in widely different circumstances | |
| which it will be impossible and indeed inadvisable to attempt to | |
| define exhaustively : (vide observations of Parker, J., | |
| in R. v Manchester Legal Aid Committee10). | |
| 9. We must therefore proceed to examine the provisions of the | |
| Act and the regulations framed thereunder in connection with | |
| matters of this kind to determine whether the Committee can be | |
| said to have the duty to act judicially when it deals with cases of | |
| examinees using unfair means in examination halls. Under Section | |
| 7 of the Act, the Board constituted thereunder has inter alia powers | |
| to prescribe courses of instruction, to grant diplomas and | |
| certificates, to conduct examinations to admit candidates to its | |
| examinations, to publish the results of its examinations, and to do | |
| all such things as may be requisite in order to further the objects of | |
| the Board as a body constituted for regulating and supervising | |
| High School and Intermediate education. Under Section 13, the | |
| Board has power to appoint and constitute various committees, | |
| including the examinations' committee, and under Section 14, the | |
| Board can delegate its powers by regulations to such committees. | |
| Section 15 gives power to the Board to make regulations with | |
| respect to the constitution, powers and duties of committees, the | |
| conduct of examinations, and all matters which by the Act may be | |
| provided for by regulations. Section 20 gives power to the Board | |
| and its committees to make bye-laws consistent with the Act and | |
| the regulations. | |
| 10. It will be clear from the above that the Act makes no | |
| express provisions as to the powers of the committees and the | |
| procedure to be adopted by them in carrying out their duties, which | |
| are left to be provided by Regulations, and we have therefore to | |
| look to the Regulations framed under Section 15 to see what | |
| powers and duties have been conferred on various committees | |
| constituted under the Regulations. Section 13(1) makes it | |
| incumbent on the Board to appoint the Committee and Chapter VI | |
| of the Regulations deals with the powers and duties of the | |
| Committee. Rule 1(1) of Chapter VI with which we are particularly | |
| concerned reads as follows: | |
| “1.(1) It shall be the duty of the Examinations' Committee, | |
| subject to sanction and control of the Board. | |
10
(1952) 2 QB 418
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| (i) to consider cases where examinees have concealed | |||
|---|---|---|---|
| any fact or made a false statement in their application forms | |||
| or a breach of rules and regulations to secure undue | |||
| admission to an examination or used unfair means or | |||
| committed fraud (including impersonation) at the | |||
| examination or are guilty of a moral offence or indiscipline | |||
| and to award penalty which may be one or more of the | |||
| following— | |||
| (1) Withdrawal of certificate of having passed<br>the examination;<br>(2) cancellation of the examination;<br>(3) exclusion from the examination;” | (1) Withdrawal of certificate of having passed | ||
| the examination; | |||
| (2) cancellation of the examination; | |||
| (3) exclusion from the examination;” | |||
| There is however no provision in Chapter VI as to how the | |||
| Committee will carry out the duty imposed on it by Rule | |||
| 1(1). Further, there is no express provision in the Act or the | |||
| Regulations casting a duty on the Committee to act | |||
| judicially when exercising its powers under Rule 1(1); and | |||
| the question whether the Committee has to act judicially | |||
| when exercising these powers will have to be decided on an | |||
| examination of all the circumstances relevant in the matter. | |||
| At the same time, there is nothing express in the Act from | |||
| which it can be said that the Committee is not under a duty | |||
| to act judicially. It is true that there is no procedure | |||
| provided as to how the Committee will act in exercising its | |||
| powers under Rule 1(1) and it is further true that there is no | |||
| express provision in that rule requiring the Committee to | |||
| call for an explanation from the examinees concerned and | |||
| to hear the examinees whose cases it is required to | |||
| consider. But we are of opinion that the mere fact that the | |||
| Act or the Regulations do not make it obligatory on the | |||
| Committee to call for an explanation and to hear the | |||
| examinee is not conclusive on the question whether the | |||
| Committee acts as a quasi-judicial body in exercising its | |||
| powers under Rule 1(1). Even though calling for an | |||
| explanation and hearing the examinee may not have been | |||
| made expressly obligatory by the Act or the Regulations, it | |||
| is obvious that the Committee when it proceeds to decide | |||
| matters covered by Rule 1(1) will have to depend upon | |||
| materials placed before it, in coming to its decision. Before | |||
| the Committee decides to award any penalty it has to come | |||
| to an objective determination on certain facts and only | |||
| when it comes to the conclusion that those facts are | |||
| established that it can proceed to punish the examinee |
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| concerned. The facts which the Committee has to find | ||
|---|---|---|
| before it takes action are: | ||
| (i) Whether the examinee has concealed any | ||
| fact or made a false statement in his application | ||
| form; or | ||
| (ii) Whether the examinee has made a breach of | ||
| the Rules and Regulations to secure undue | ||
| admission to an examination; or | ||
| (iii) Whether the examinee has used unfair | ||
| means at the examination; or | ||
| (iv) Whether the examinee has committed fraud | ||
| (including impersonation) at the examination; or | ||
| (v) Whether the examinee is guilty of moral | ||
| offence or indiscipline. | ||
| Until one or other of these five facts is established before the | ||
| Committee, it cannot proceed to take action under Rule 1(1). In | ||
| order to come to the conclusion that one or other of these facts is | ||
| established, the Committee will have to depend upon materials | ||
| placed before it, for in the very nature of things it has no personal | ||
| knowledge in the matter. Therefore, though the Act or the | ||
| regulations do not make it obligatory on the Committee to call for | ||
| an explanation and hear the examinee, it is implicit in the | ||
| provisions of Rule 1(1) that the Committee must satisfy itself on | ||
| materials placed before it that one or other of the facts is | ||
| established to enable it to take action in the matter. It will not be | ||
| possible for the Committee to proceed at all unless materials are | ||
| placed before it to determine whether the examinee concerned has | ||
| committed some misconduct or the other which is the basis of the | ||
| action to be taken under Rule 1(1). It is clear therefore that | ||
| consideration of materials placed before it is necessary before the | ||
| Committee can come to any decision in the exercise of its powers | ||
| under Rule 1(1) and this can be the only manner in which the | ||
| Committee can carry out the duties imposed on it. | ||
| 11. We thus see that the Committee can only carry out its | ||
| duties under Rule 1(1) by judging the materials, placed before it. It | ||
| is true that there is no lis in the present case, in the sense that there | ||
| are not two contesting parties before the Committee and the matter | ||
| rests between the Committee and the examinee; at the same time | ||
| considering that materials will have to be placed before the | ||
| Committee to enable it to decide whether action should be taken | ||
| under Rule 1(1), it seems to us only fair that the examinee against |
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whom the Committee is proceeding should also be heard. The
effect of the decision of the Committee may in an extreme case
blast the career of a young student for life and in any case will put
a serious stigma on the examinee concerned which may damage
him in later life. The nature of misconduct which the Committee
has to find under Rule 1(1) in some cases is of a serious nature, for
example, impersonation, commission of fraud, and perjury; and
the Committee's decision in matters of such seriousness may even
lead in some cases to the prosecution of the examinee in courts.
Considering therefore the serious effects following the decision of
the Committee and the serious nature of the misconduct which may
be found in some cases under Rule 1(1), it seems to us that the
Committee must be held to act judicially in circumstances as these.
Though therefore there is nothing express one way or the other in
the Act or the Regulations casting a duty on the Committee to act
judicially, the manner of the disposal, based as it must be on
materials placed before it, and the serious effects of the decision of
the Committee on the examinee concerned, must lead to the
conclusion that a duty is cast on the Committee to act judicially in
this matter particularly as it has to decide objectively certain facts
which may seriously affect the rights and careers of examinees,
before it can take any action in the exercise of its power under
Rule 1(1). We are therefore of opinion that the Committee when it
exercises its powers under Rule 1(1) is acting quasi-judicially and
the principles of natural justice which require that the other party,
(namely, the examinee in this case) must be heard, will apply to the
proceedings before the Committee. This view was taken by the
11
Calcutta High Court in Dipa Pal v University of Calcutta
12
and B.C. Das Gupta v Bijoyranjan Rakshit in similar
circumstances and is in our opinion correct.
12. It is urged on behalf of the appellant that there are a large
number of cases which come up before the Committee under Rule
1(1), and if the Committee is held to act judicially as a quasi-
judicial tribunal in the matter they will find it impossible to carry
on its task. This in our opinion is no criterion for deciding whether
a duty is cast to act judicially in view of all the circumstances of
the case. There is no doubt in our mind that considering the
totality of circumstances the Committee has to act judicially when
taking action under Rule 1(1). As to the manner in which it should
give an opportunity to the examinee concerned to be heard, that is
a matter which can be provided by regulations or bye-laws if
necessary. As was pointed out in Local Government
13
Board v Alridge all that is required is that the other party should
have an opportunity of adequately presenting his case. But what
11
AIR 1952 Cal 594
12
AIR 1953 Cal 212
13
(1915) AC 120
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the procedure should be in detail will depend on the nature of the
tribunal. There is no doubt that many of the powers of the
Committee under Chapter VI are of administrative nature; but
where quasi-judicial duties are entrusted to an administrative body
like this it becomes a quasi-judicial body for performing these
duties and it can prescribe its own procedure so long as the
principles of natural justice are followed and adequate opportunity
of presenting his case is given to the examinee. It is not however
necessary to pursue this matter further, for it is not in dispute that
no opportunity whatsoever was given to the respondents in this
case to give an explanation and present their case before the
Committee. We are therefore of opinion that though the view of the
High Court that the Committee was acting merely administratively
when proceeding under Rule 1(1) is not correct, its final decision
allowing the writ petition on the ground that no opportunity was
given to the respondents to put forward their cases before the
Committee is correct. We therefore dismiss the appeal. No order as
to costs in the circumstances.”
(Emphasis supplied)
10.6 Thus, even where there was no statutory obligation to act
judicially, or quasi-judicially, or to hear the candidates who were
alleged to have employed unfair means, the Supreme Court held that,
given the nature of the inquiry that was involved, and the extreme civil
consequences that its outcome, if adverse, would visit on the
candidates, a duty to act judicially, as also to grant the candidates an
opportunity to present their case and be heard, was implicit.
10.7 The decision in Ghanshyam Das Gupta , we may note, was later
distinguished by the Supreme Court in cases of mass or large-scale
usage of unfair means resulting in the need to cancel the examination
14
altogether, in Nidhi Kaim v State of M.P. , Bihar School
15
Examination Board v Subhas Chandra Sinha and Sachin Kumar v
16
DSSSB . Of these, Sachin Kumar and Nidhi Kaim merely followed
14
(2016) 7 SCC 615
15
(1970) 1 SCC 648
16
(2021) 4 SCC 631
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Bihar School Examination Board , in distinguishing Ghanshyam Das
Gupta . In Bihar School Examination Board, Ghyamshyam Das
Gupta was held not to be applicable in a case of large scale or mass
copying, thus:
“14. Reliance was placed upon Ghanshyam Das Gupta to
which we referred earlier. There the examination results of three
candidates were cancelled, and this Court held that they should
have received an opportunity of explaining their conduct. It was
said that even if the inquiry involved a large number of persons,
the Committee should frame proper regulations for the conduct of
such inquiries but not deny the opportunity. We do not think that
that case has any application. Surely it was not intended that where
the examination as a whole was vitiated, say by leakage of papers
or by destruction of some of the answer books or by discovery of
unfair means practised on a vast scale that an inquiry would be
made giving a chance to every one appearing at that examination
to have his say? What the Court intended to lay down was that if
any particular person was to be proceeded against, he must have a
proper chance to defend himself and this did not obviate the
necessity of giving an opportunity even though the number of
persons proceeded against was large. The Court was then not
considering the right of an examining body to cancel its own
examination when it was satisfied that the examination was not
properly conducted or that in the conduct of the examination the
majority of the examinees had not conducted themselves as they
should have. To make such decisions depend upon a full-fledged
judicial inquiry would hold up the functioning of such autonomous
bodies as Universities and School Board. While we do not wish to
whittle down the requirements of natural justice and fair-play in
cases where such requirement may be said to arise, we do not want
that this Court should be understood as having stated that an
inquiry with a right to representation must always precede in every
case, however different.”
(Emphasis supplied)
Thus, Bihar School Education Board , decided by a Bench of three
Hon’ble Judges, reiterated the principle that compliance with the
requirement of grant of an opportunity, and of hearing, was
applicable, even if the number of candidates was large. Sachin Kumar
and Nidhi Kaim , as already noted, adopt and follow Bihar School
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Education Board.
10.8 The prevailing principle appears to be one of practicability ,
even while audi alteram partem continues to loom large. Ordinarily,
the requirement of grant of a fair opportunity to the allegedly
delinquent examinees, or candidates, is not negotiable. If, however, it
is impracticable to do so, or if doing so would seriously impact the
functioning of the institution, as in a case of large or mass scale
copying where, possibly, the entire examination, or the examination at
a particular centre, has to be cancelled wholesale, the law cannot
require each candidate to be show caused, and heard, before the
decision is taken.
10.9 The facts of this case attract Ghanshyam Das Gupta , not
Sachin Kumar or Nidhi Kaim . The number of allegedly delinquent
candidates was just 21. What was required was merely an opportunity
to them to defend the allegation of unfair means; not a full-fledged
domestic inquiry. Failure to grant them the said opportunity, in our
view, has rightly been held by the Tribunal to vitiate their
cancellation, and we see no reason to interfere with the impugned
decision to that extent.
11. Re. observations and findings with respect to 17 candidates
appointed in place of the respondents
11.1 On the act of the petitioner in appointing 17 candidates against
the vacancies against which the respondents applied, the Tribunal has
critically commented, in para 21 and 22 of the impugned judgment,
which read thus:
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“21. Soon after the applicants found that their names were
wrongfully excluded from the order of posting, they approached
this Tribunal. The administration of any organization, which has
the basic respect for principles of law, would have issued notices to
the persons, whom the offer of appointment was issued, or at least
deferred further steps till the entire issue is examined in detail.
Once the issue landed before the Tribunal for adjudication, no
responsible officer / authority would proceed to frustrate it by
appointing persons in place of those, who were excluded from the
order of posting.
22. Even while the batch of O.As. was pending before this
Tribunal, the respondents have taken hasty steps in filling the
vacancies, which were otherwise to be occupied by the applicants
herein. It is stated that on 03.01.2020, offer of appointment was
issued to as many as 17 candidates to fill the vacancies, as regards
which the applicants were already issued the offer of appointment,
but were cancelled. In the offer of appointment, the candidates
were required to submit the following documents in the prescribed
formats. Clause 9 thereof reads:
“9. Your appointment to the post of District Youth
Coordinator is provisional and subject to submission of
duly filled in following documents in prescribed formats
which is attached. (If any of you claims with respect to the
documents submitted is found incorrect/not verifiable or
any false information is given by you in your self-
declaration, your appointment will be cancelled forthwith
and criminal/legal action will be taken, as a consequence):-
i. Format for taking Oath
ii. Character Certificate
iii. Police Verification (Attestation Form)
iv. Medical Fitness Certificate
v. Statement of Immovable Property
vi. Declaration regarding Marital Status””
11.2 We are not able to agree with the Tribunal in its observation
that the petitioner acted irresponsibly in issuing offers of appointment
to 17 candidates on 3 January 2020. Merely because the OA filed by
the respondent was pending before the Tribunal, the petitioner cannot
be said to have been injuncted in appointing any fresh candidates. It
has to be noted that there was no interim order passed by the Tribunal,
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restraining the petitioner from appointing fresh candidates on 3
January 2020, given the fact that the candidature of the respondent had
been cancelled on 28 November 2019.
11.3 The mere fact that the respondents had chosen to challenge their
cancellation of their candidature did not ipso facto result in an
injunction against the petitioner appointing any fresh persons against
the posts to which the respondent had aspired. Else, it would result in
a peculiar situation in which, even in the absence of an order of stay,
the petitioner would be bound to keep all the posts unfilled for the
entire period during which the OA remained pending before the
Tribunal. Needless to say, such a consequence cannot be
countenanced in law.
11.4 We, therefore, do not approve the findings in paras 21 and 22 of
the impugned judgment to the effect that the petitioners acted
irregularly in appointing candidates against the posts to which the
respondents had aspired and had been earlier appointed.
11.5 The Tribunal has, for various reasons including, inter alia , the
fact that the candidates who have been appointed in place of the
respondents had joined duties three days prior to the offers of
appointment, returned the finding that their appointments were
fraudulent and illegal. We cannot approve of these findings either, as
none of the said respondents were made parties before the Tribunal. It
needs to be noted, in this context, that the said 17 candidates have not
been appointed in breach of any interim order that the Tribunal had
passed. Their appointment, therefore, was not stricto sensu subject to
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the outcome of the OA. It was the respondents’ duty, therefore, to
implead the said 17 candidates as soon as they had been appointed.
Without them having been made parties, the Tribunal, in our view,
materially erred in returning a finding that their appointment was
irregular or fraudulent.
11.6 Nonetheless, to satisfy our conscience, we queried of Mr
Dhanda as to how the said 17 candidates had joined three days prior to
their offers of appointment. He submitted that this finding was in fact
incorrect, as the offer of appointment of the 17 candidates was of 3
January 2020, though it might have reached them on 6 January 2020.
There may still remain the issue of how they joined on 3 January 2020
before their offers of appointment reached them; however, as they
were never made parties before the Tribunal, we refrain from making
any further observations in that regard.
11.7 It may be noted that, even in the present petition, the said
candidates have not been made parties. Some of them, however,
moved applications for impleadment in these proceedings, which were
allowed by this Court. They, therefore, were impleaded in the present
proceedings. The said appointed candidates have not chosen to file
any counter affidavit. They have filed two page written submissions in
which they have said that they abide by the submissions of the
petitioners before us.
11.8 There is wealth of judicial authority for the proposition that the
selection or appointment of selected candidates cannot be disturbed
without making them parties. Even where the number is
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unmanageably large, they have to be impleaded at least in a
representative capacity. In All India SC & ST Employees
17
Asscociation v A. Arthur Jeen , the principle was thus enunciated:
| “13. Although the candidates included in the panel showing | |
|---|---|
| their provisional selection do not get vested right to appointment, | |
| they will be surely interested in protecting and defending the select | |
| list. It is an admitted position that before the Tribunal the | |
| successful candidates whose names were included in the panel of | |
| selection were not made parties. The argument of the learned | |
| counsel that since the names and particulars of the successful | |
| candidates included in the panel were not given, they could not be | |
| made parties, has no force. The applicants before the Tribunal | |
| could have made efforts to get the particulars; at least they ought to | |
| have impleaded some of the successful candidates, maybe, in a | |
| representative capacity; if the large number of candidates were | |
| there and if there was any difficulty in service of notices on them, | |
| they could have taken appropriate steps to serve them by any one | |
| of the modes permissible in law with the leave of the Tribunal. | |
| This Court in Prabodh Verma v. State of U.P.18 has held that in | |
| writ petitions filed against the State questioning the validity of | |
| recruitment of a large number of persons in service could not be | |
| proceeded with to hear and take decision adverse to those affected | |
| persons without getting them or their representatives impleaded as | |
| parties. In para 50 of the said judgment, summarizing the | |
| conclusions this Court in regard to impleading of the respondents | |
| has stated that: | |
| “A High Court ought not to hear and dispose of a writ | |
| petition under Article 226 of the Constitution without the | |
| persons who would be vitally affected by its judgment | |
| being before it as respondents or at least some of them | |
| being before it as respondents in a representative capacity if | |
| their number is too large to join them as respondents | |
| individually, and, if the petitioners refuse to so join them, | |
| the High Court ought to dismiss the petition for non-joinder | |
| of necessary parties.” | |
| 14. This Court in para 4 of the judgment in A.M.S. | |
| Sushanth v M. Sujatha19 has stated thus: | |
17
(2001) 6 SCC 380
18
(1984) 4 SCC 251
19
(2000) 10 SCC 197
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“4. We find that none of the persons who were selected
and whose appointments were set aside by the High Court
had been impleaded as a party-respondent. It appears that a
public notice was given in a representative capacity only
with regard to the appointment to the post of Assistant
Sericulture Officer. The direction of the High Court,
however, is not confined to that post alone and it is the
appointments to the other posts also which have been set
aside. This could not be done. The principles of natural
justice demanded that any person who was going to be
adversely affected by the order should have had an
opportunity of being heard . That apart, one would have
expected the High Court to have considered the report
submitted under Section 65 on its merits and then decided
whether the said report should be accepted or not.”
(Emphasis supplied)
11.9 As such, we do not deem it appropriate to disturb the
appointment of the said 17 candidates, who were never impleaded
before the Tribunal.
11.10 At the same time, as the petitioner has proceeded to appoint the
17 candidates against the respondents’ vacancies on the heels of the
respondents approaching the Tribunal, we make it clear that it shall
not be open to the petitioner plead non-availability of vacancies as a
ground not to appoint the respondents. The petitioner shall ensure that
they are appointed in accordance with the directions in this judgement;
if necessary, by creating supernumerary posts.
12. We also find that the Tribunal has protected the interest of the
petitioner by making the appointment of the respondents subject to the
final outcome of the investigation by the IBPS. We, therefore,
reiterate this direction.
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13. While maintaining the judgment of the Tribunal, insofar as it
directs appoint of the respondents, we, therefore, retain the right of the
IBPS to investigate into the matter and examine whether there was, or
was not, any actual substance in the allegations of unfair means
having been employed by the respondents. While doing so, the IBPS
would make available to the respondents the material against them and
would also offer them an opportunity of personal hearing, if they so
choose. The decision of the IBPS would have to be reasoned and
speaking and would be communicated to the respondents as soon as it
is arrived at. Needless to say, should the respondents be at all
aggrieved by the said decisions, their rights in law would remain
reserved.
14. We direct the petitioner to grant appointment to the respondents
within four weeks, and that the investigations by the IBPS be
concluded within 12 weeks from today.
15. These petitions stand disposed of accordingly, without any
order as to costs.
C. HARI SHANKAR, J.
ANOOP KUMAR MENDIRATTA, J.
NOVEMBER 12, 2024
ar/p
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