Full Judgment Text
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PETITIONER:
REFERENCE CASE NO.1 OF 1995(REFERENCE UNDER ARTICLE 317(1)
Vs.
RESPONDENT:
DATE OF JUDGMENT: 29/01/1997
BENCH:
CJI, SUJATA V. MANOHAR
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
Ahmadi, CJI.
This is a reference from the President of India for
enquiry and report as to whether Shri Sher Singh, Member of
Haryana Public Service Commission (hereinafter referred to
as "the Commission"), ought, on the ground of misbehaviour,
be removed from the office of the Member of the Commission.
The Commission held a written examination from
2.10.1993 to 15.10.1993 for recruitment to 62 posts for
different services under the Government of Haryana including
12 posts in the Haryana Civil Service (Executive Branch)
(hereinafter referred to as "the said examination").
However, before the results were declared, some difference
arose between the Members of the Commission and certain
irregularities in keeping the records of the examination
were alleged. This led to scrapping of the said examination
followed by the resignation of the Chairman Shri L.D.
Kataria from the Commission. The resignation letter
submitted to Shri Dhanik Lal Mandal, Governor of Haryana,
disclosed the allegations of facts leading to is
resignation. The facts alleged by him can be narrated in
brief as under:-
The Secretary of the Commission was responsible for
maintaining secrecy with regard to the entire process of
examination and interview so as to ensure objective and
impartial selection of candidates. Neither the Chairman nor
the Members were expected to know the results of any
individual candidate in the written examination. The
examiners were to be selected by the Secretary in
consultation with the Chairman and the Secretary had to
maintain complete secrecy about the same. The papers sent
for marking and received back from the examiners, were
handled by the Secretary under the order of the Chairman.
The marking is done on the basis of fictitious roll numbers
(code numbers) given to each answer sheet after tearing out
the original roll numbers called the clippings. The key i.e.
the document containing clue to decoding the fictitious roll
numbers, is drawn up by the Secretary and kept under sealed
cover by him. The results are compiled on the basis of the
fictitious roll numbers and later the key is opened in the
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presence of the Chairman at the time the results are to be
finally compiled and declared. Thereafter, all relevant
papers including the key are sealed and kept till the
interviews are over and results are finally declared. In the
said examination, Shri T.R. Tuli, former Secretary,
exhibited carelessness by not sealing the key containing the
original and fictitious roll numbers in time and when on
29th December, 1995 the Members of the Commission wanted to
see the key for ensuring its secrecy, the Secretary brought
the key in his brief-case which he claimed was kept in
double lock but not sealed. The Secretary was reprimanded
for the lapse. The key was sealed and signed by the two
Members in addition to the Secretary. The Secretary Shri
T.R. Tuli was transferred and the new Secretary took over
and proceeded to compile the result. The members thereafter
wanted to see certain records including the secret documents
on 21st June, 1994. The Secretary on that day was on leave.
On 22nd June, 1994, the news item in local Tribune was
published under the caption "No confidence in HPSC Chief".
In order to clarify the matter, the Chairman discussed the
matter with the Members and convened a Press Conference on
23.6.1994. During the Press conference, although the
Chairman emphasised that the said examination was not void
and that all allegations would be looked into before the
result was finally declared, Shri Sher Singh, Member of the
commission, vociferously repeated the allegations regarding
non-sealing of key as also the clippings and reiterated that
the said examination needs to be held void. The controversy
had been blown out of all proportions leading to erosion of
the image of the Commission. The Chairman had defended the
position of the Commission because the omission to seal the
key was a technical lapse. However, in view of the damage
caused to the working of the Commission, the Chairman
scrapped the examination held in October, 1993 after
discussing the matter in the Commission’s Meeting on
24.6.1994. The nephew of Shri Sher Singh was appearing as a
candidate in the said examination. During this time, he had
been bothering the Chairman for some help to the nephew and
even suggested that the fictitious roll numbers could be
manipulated for securing high marks for the nephew. Such
requests had also been made by him to the former Secretary.
Shri Sher Singh as well as some other Members of the
Commission in view of their vested and selfish interest
resorted to maligning the office of the Chairman and
damaging the image of the Commission. Hence the resignation.
The Governor of Haryana, Shri Dhanik Lal Mandal, on
receipt of the resignation letter asked for the comments
from Shri Sher Singh. Shri Sher Singh contended in reply
that both the award list and the key were brought by the
Secretary in a brief-case which were unsealed although the
Secretary claimed that they had been kept in double lock,
that as Members objected to the sorry state of affairs which
led to a heated discussion, that the Secretary was
reprimanded and thereafter the award list as well as the key
were sealed under the signature of two Members and the
Secretary but it transpired that the seal on the award list
was subsequently broken, that when this was pointed out, the
Chairman in his note dated 21.6.1994 admitted that he had
asked the Secretary to open the seal of the award list for
compilation of the result, that the seal should have been
broken only in presence of the Members who had countersigned
the award list, that the Members, were of the view that the
Chairman in connivance with the Secretary had played some
mischief as the Chairman had declined to make available the
records relating to the merit list and the result cards of
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the qualifying candidates on the pretext of secrecy being
maintained even though these documents had been prepared on
the fictitious roll numbers, that in the meeting dated
21.6.1994 the Members suggested that the examination held in
October, 1993 be declared void, that the Chairman started
finding fault with the Members as he could not manipulated
the results, that a preliminary checking was demanded and
during the preliminary checking, certain irregularities were
found, that never before the resignation, the Chairman had
made any mention that Sher Singh had been approaching him
for favouring his nephew, and that Sher Singh never
approached the Chairman for any favour.
Shri Sher Singh goes on to say that the whole thing was
a conspiracy to seek resignation of all the Members of the
Commissions and to appoint new ones. He says Shri I.D.
Kaushik was forced to submit his resignation who
subsequently filed a Civil Writ Petition before the High
Court of Chandigarh for declaration that his resignation was
void and for a direction that he be allowed to continue as a
Member of the Commission. The High Court on 4.7.1994 ordered
the sealing of the records.
The reference was made by the President of India vide
his order dated 18.3.1995 for an enquiry and report as to
whether Shri Sher Singh, Member of the Commission, ought on
the ground of misbehaviour be removed from the office of
Member of the Commission.
Notice was issued to the former Chairman of the
Commission, Shri L.D. Kataria and also to Shri T.R. Tuli,
the then Secretary of the Commission. Shri L.D. Kataria and
T.R. Tuli as well as Shri Sher Singh appeared before the
court. Shri Kataria and Shri Tuli were directed to file
affidavit within two weeks, and Shri Sher Singh within one
week thereafter. The affidavit of Shri L.D. Kataria refers
to the comments given by Shri Sher Singh in response to the
letter of resignation submitted by Shri Kataria. Shri
Kataria reiterates the position explained in the letter of
resignation but has some more information and comments to
give. In the meantime, a large number of writ petitions were
filed in the High Court of Punjab and Haryana concerning the
examination of October 19, 1993. In one of the writ
petitions being civil Writ Petition No.11525 of 1994, Shiv
Prasad v. Haryana Public Service commission etc. Shri
Kataria filed his written statement while Shri T.R. Tuli
filed his affidavit. Both these documents are submitted as
annexures to these affidavits. Commenting on the allegation
that the award list and the key were unsealed, shri Kataria
says that on 29.12.1993, the award lists were not at all
ready and, therefore, there could be no occasion of their
being left non-sealed. About unsealing of the key, he stated
that there was no serious infirmity in maintaining the
secrecy of the examination and in the meeting dated
29.12.1993 that issue was closed although it was raised
later by Shri Sher Singh because of some personal prejudice.
On how the award list was later found unsealed, Shri Kataria
says that because of the atmosphere of suspicion and
hostility, it was decided that the Secretary should open the
envelope received from the various examiners containing the
marked answer sheets and award list and immediately
thereafter the award list should be taken out and put in a
sealed cover by his Secretary, the sealed cover being signed
by two members. However, later Shri Tuli pointed out to Shri
Kataria that in the process of opening the envelopes
received from the examiners in the presence of the members,
the members would get access to the names of the examiners
and this may result in some complaints of violation of
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secrecy and in view of this possibility Shri Kataria
directed the Secretary not to open the envelopes received
from the examiners in the presence of the members or to get
them resealed in their presence and further directed him to
continue the old practice of dealing with the envelopes at
the Secretary’s level only. Further, at the time of
compilation of the results of the said written examinations,
the award lists were allowed by Shri Kataria to be opened by
the Secretary. About the refusal to show the merit list and
the result cards, it is contended by Shri Kataria that the
results of the written examination should not be disclosed
to the members on the interviewing committee because such
information may influence the minds of the interviewers, and
consequently, the evaluation of the candidates at the
interview. However, he says, the members were granted access
to the award list for the purpose of checking the
correctness of the evaluation of the written papers. So far
as the irregularities in evaluation of written papers
detected by Shri Sher Singh are concerned, Shri Kataria has
given some categorical answers. The irregularities were :
(a) certain parts of some answer sheets had not been
assessed; (b) the totalling done by the examiners in the
award list did not tally with the actual marks awarded; and
(c) some examiners gave credits to certain questions
answered in excess of the number required to be answered by
the candidates. All these mistakes and discrepancies were
required to be corrected at the level of the Commission. The
unassessed portions of the answer book could ordinarily be
assessed by the original examiner but in view of the
constraint of distance and time, such unassessed portion of
the answer sheets were assessed by the locally available
qualified examiners. Since, nearly 22,000 answer sheets were
involved, such irregularities were natural. The evaluation
of the unmarked portions naturally led to increase in the
total marks and a corresponding correction became necessary
in many other documents. Shri Kataria, further, says that he
never publicly complained that Shri Sher Singh had
approached him for showing some favour to his nephew because
he did not want to tarnish the image of the Commission.
Ultimately, when he decided to quit, he thought it proper to
put all the facts on record.
Shri T.R. Tuli, the Secretary of the Commission, in his
affidavit throws further light on the method of handling the
answer sheets and preparation of the key. He explains that
after the examination was over, the key of the fictitious
roll numbers was drawn up by him and kept in his safe
custody, that the work of replacing the original roll
numbers with the fictitious roll numbers as per key was a
voluminous task and was done over a period of nearly one
month with the help of the controller of Examinations, the
Deputy Superintendent, a dealing Assistant and some peons
under the supervision of the Secretary and that during this
period the key was kept by the Secretary. The clippings, he
said, were kept in a sealed cover in safe custody and the
answer books remitted to the examiners. The key used to be
kept in his safe custody in a box on which there were three
locks in an almirah with two locks in the confidential room
on which there were four locks. Initially the box was being
locked by a Member and a co-Member who subsequently
discontinued their involvement. The four locks could be
opened by four persons jointly and not otherwise. According
to the Secretary, this was enough to ensure secrecy of the
key. So far as the secrecy of the award list was concerned,
he says that the award lists were drawn on fictitious roll
numbers and till the fictitious roll numbers were disclosed,
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it was not necessary to keep the award list under any seal.
He makes a serious allegation against shri Sher Singh, in
that, he allured him into selecting candidates known to him
and in return suggested that his (Secretary’s) candidates
also could be cleared. He hoes on to allege that Shri Sher
Singh even attempted to intimidate him by sending one of his
henchmen to his residence and on another occasion by telling
him on phone that he had a visitor who knew certain roll
numbers of some candidates and the names of the examiners
and the address of the security press where the question
papers had been printed. On receipt of the answer books,
Shri Tuli explained, a scrutiny was carried out by the
Superintendent, the Controller of Examinations and the
Secretary and corrections required were incorporated on the
approval of the Chairman. He says that all unmarked portions
were sent to the original examiners although he could not
testify about the procedure adopted after he was transferred
out of the Commission.
Shri Sher Singh in his affidavit reiterates his stand
taken in the comments to the resignation letter. He contends
the allegations against him were made at the instance of the
then Chief Minister Shri Bhajan Lal who wanted to remove him
and to appoint some other person of his own choice. He
further narrates in detail how the Chief Minister demanded
the resignation of some members of the Commission including
himself and how they were threatened with dire consequences
if his demand was not met. So far as sealing of the award
list is concerned, he says that the same was also sealed in
presence of the members on the very day the key was sealed.
He also lays emphasis on the note dated 21.6.1994 in which
it is inter alia recorded that the chairman admits the seal
on the award list to have been broken which had been sealed
under the signature of two members. On that very day, as the
note suggests, the members expressed lack of faith and
proposed that the examination in question be declared void.
It is further emphasised by Shri Sher Singh that the
clippings remained unsealed and names of the examiners were
also not kept secret. He avers that he can show how in
particular cases the marks of the candidates were increased.
These affidavits were treated as examination-in-chief
and cross-examination to each affidavit by the other parties
filing the affidavits were allowed. A sitting Judge of the
High Court of Punjab & Haryana to be nominated by the Chief
Justice/Acting Chief Justice of the High Court was deputed
to record the cross-examination. The cross-examinations were
recorded by Shri Justice M.L. Koul of the High Court of
Punjab & Haryana.
Before we proceed to appreciated the evidence on
record, it would be appropriate to recall the point in
controversy. The reference of the President of India
extracts a portion of Mr. Kataria’s resignation letter
wherein the allegation of misconduct by Shri Sher Singh is
made. The Government of Haryana after having sought the
comments of Shri Sher Singh, forwarded the resignation
letter and the comments to the President. The President
being satisfied that it was necessary so to do, made the
reference under Article 317 of the Constitution. The order
of reference is brief and is extracted below in its
entirety:
PRESIDENT
REPUBLIC OF INDIA
18 THE MARCH, 1995.
That WHEREAS Shri L.D. Kataria, Chairman of Haryana
Public Service commission (here in after referred to as the
Commission) had levelled the following charge against Shri
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Sher Singh, Member of the Commission in his resignation
letter to the Governor of Haryana (a copy where of is set
out in Annexure-I here to).
"A nephew (brother’s son) of Shri
Sher Singh, Member of the
Commission was appearing as a
candidate in this examination. Shri
Sher Singh during the days of
examination was almost daily
bothering me at my residence for
some help . I told him that I
cannot think of any way of helping
out his candidate in the written
examination. He had the audacity to
suggest change of papers by
speaking to the Secretary who keeps
sealed papers after their receipt
or by manipulation the fictitious
roll number of the candidate
securing high marks. I refused him
bluntly and told him that no
manipulation of any type at any
time will be allowed to be done by
way of any body for any candidate.
This made Mr. Sher Singh, Member
unhappy and vindictive. As verbally
told by former Secretary, Shri Sher
Singh had thrown hints to this
effect even to the former secretary
but in view of clear cut
directions he too refused to oblige
him in any manner.
And WHEREAS the Government of Haryana sought the
comments of Shri Sher Singh on the above charge levelled by
Shri L.D. Kataria against him.
And WHEREAS the Government of Haryana had forwarded to
the Government of India a copy of Shri Kataria’s letter
containing the allegations against Shri sher Singh and the
reply of the said Shri Sher Singh thereto (a copy where of
is set out in Annexure-II here to) and also the note of Shri
T.R. Tully, the then Secretary of the Commission (a copy
where of is set out in Annexure-III her to).
And WHEREAS I am satisfied from the above referred
material that it is necessary that the said allegation be
enquired into.
And THEREFORE in exercise of the powers conferred upon
me by clause (1) of article 317 of the Constitution. I,
Shanker Dayal Sharma, President of India, hereby refer to
the Supreme Court of India for enquiry and report as to
whether Shri Sher Singh, Member of the Commission, ought, on
the ground of misbehaviour, be removed from the office of
the Member of the Commission.
Sd/-
PRESIDENT OF INDIA
Thus, the enquiry demanded is limited to the conduct of
Shri sher Singh. Further, Shri Sher Singh’s conduct to be
enquired into is limited to the allegation extracted in the
order of reference. The sum and substance of the allegation
is that Shri Sher Singh attempted to influence the
Commission for obtaining favours for his nephew who
admittedly was a candidate for the said examination. The
allegation is refuted by Shri Sher Singh. Further, Shri Sher
Singh imputes a motive to Shri Kataria, namely, that the
allegation was made at the behest of Shri Bhajan Lal, the
then chief Minister of Haryana who was vindictive towards
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him. Whether secrecy standards had been compromised or not
and whether the said examination should have been declared
void is not directly in issue. But, if it is shown that Shri
Sher Singh had no good reason to question the manner in
which the work was being done, it may indicate that his
challenge to the manner of maintaining secrecy was actuated
by oblique motives.
Shri L.D. Kataria swears and affidavit to substantiate
his allegation. Shri T.R. Tuli, the then Secretary, also
files and affidavit stating that Shri Sher Singh had
suggested to him that the candidates favoured by him could
be helped in exchange for similar help to be extended to the
Secretary. Shri Tuli further goes to say that Shri Sher
Singh did not stop by a mere suggestion or request but had
attempted to intimidate him so that he may yield to him. The
earliest point of time when the allegations were made in
writing by Shri Tuli was 2.7.1994 in a note (Annexure-III to
the Reference) in response to the news items in the press
from 21.6.1993 onwards concerning the work of the Commission
relating to the said examination and its ultimate decision
to scrap the same. His affidavit before this Court only
affirms and verifies the contents of that note. The
following part of his affidavit which is treated as
examination-in-chief can be quoted below:
"...Shri Sher Singh also tried to
allure me to get the selections of
candidates made on reciprocal basis
by his favourites or kith and kin
with mine, if any, by inviting me
at his residence and in his office
room, which was a great surprise to
me as earlier on many occasions, he
has not been supporting me in the
disposal of official business
during discussions in the
Commission’s meetings, and has been
critical on my actions in the
discharge of my functions as
Secretary of the Commission as per
rules, and has been delaying cases
with ulterior motives. The Chairman
also told me that Shri Sher Singh
visited him at his residence many a
times and requested for his help in
getting through his favourites and
kith and kin in the written
examination for HCS to which he did
not agree. He flatly refused to
oblige him in order to maintain
fairness of the examination and
restore the lost image and made up
mind to do likewise by putting in
hard labour without caring for day
and night and holidays. When Shri
Sher Singh did not get any help in
his design, in the last week of
December 1993, i.e., about 15 days
or so after the work of dispatch of
answer books of all the papers to
the concerned examiners was over,
Shri Sher Singh asked me in the
meeting of the full Commission as
to where the ‘Key’ was kept. I told
the Commission that the ‘Key’ was
kept locked in the box which was
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got made by them for it and kept in
my safe custody in the almirah with
double locks lying in the
confidential room with four locks
to be opened jointly by Secretary,
Controller of Examination,
Superintendent and Assistant with
separate four keys of the locks
with them. What else can be the
better arrangement for maintaining
the secrecy than this? He asked me
to bring before the Commission the
‘Key’ to see. The locked box was
taken out of the almirah with
double lock put in the confidential
room with four locks and placed it
before the Commission. When the box
was opened and shown the ‘Key’,
Shri Sher Singh along with some
other Members objected that the
‘Key’ should have been put in a
sealed cover under my signatures
and then placed in the box. I told
them that the purpose of sealing
the ‘Key’ would be served if it was
put in a cover and sealed by the
Commission under their signatures.
The ‘Key’ was then put in a cover
and sealed under the signatures of
the full Commission, and is still
lying unopened in the custody of my
successor. In the meeting vague and
baseless allegations against me,
which were vchemently denied and
objected to. This seemed to be a
pressure tactic not to have been
obliged him as stated above. Then
he got Shri Avtar Singh, Deputy
Supdt. and Shri Prem Singh Thakur,
dealing Assistant, who were doing
the examination work till then,
replaced by Shri Amrik Singh,
Supdt., and Shri M.S. Dhankar,
Assistant, who was near to Shri
Sher Singh, and hurdle in the
smooth working of the Secretary.
Shri Sher Singh, Member, also
tried to blackmail and intimidate
me through one of his henchmen.
First he rang up at my residence
that somebody from Delhi had come
to his place and told him that he
knew the roll numbers of some of
the candidates, the name o
examiners and the Security Press
from where the question papers were
got printed, etc. I asked him that
he should have enquire this
information from that person so
that the facts could have been
ascertained and enquiry could have
been made, but he failed to do so.
He said that this information would
be gathered from that person when
he comes to meet him again. Then
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some person, (perhaps the same man
he was referring to) rang up my son
at my residence in H.No. 40, Sector
7, Chandigarh, and desired to see
me to get help in the written
examination of his sister and was
told that he should see me in this
regard in my office. That person
then visited my private house
No.483, Sector 8, Panchkula, and
then wanted to get inside the house
uninvitedly and desired to talk to
me with regard to the examination
of his sister, which was objected
to. When he was questioned loudly
how he dared to come to my
residence for this purpose, he ran
away fearing apprehension. Shri
Sher Singh next day called me in
Sh. Uda Ram’s office room and
narrated the happening with him
without divulging and concrete
information for verification. It
transpired that this story was
concocted only to embarrass and
harass me to tow in their line. I
was told not to bring it to the
notice of other Members, but
fearing leakage, they themselves
brought it to the notice of other
Members of the Commission in the
absence of Chairman. I informed the
Chairman about this episode later.
In his cross-examination, it was suggested that this
note was written much later at the instance of Shri Bhajan
Lal. He denied the suggestion. He also denied that he had
applied for extension of his service. he replied to
questions in cross-examination that Shri Sher Singh first
approached him for favour only in November, 1993 after the
written examination was over. He also said that Shri Uda Ram
was present when Sher Singh approached him for favours. No
substantial questioning took place to assail the allegations
of intimidations from Shri Sher Singh. Absolutely no
question is put about the telephonic talk between the
witness and Shri sher Singh regarding leakage of information
about the roll numbers, name of the press and the names of
the examiners. No effort is made by Shri Sher Singh to
produce any affidavit of Shri Uda Ram or to present him in
the witness box.
Another important statement in examination-in-chief of
Shri Tuli is that the Chairman also told him that shri Sher
Singh visited him at his residence many a times and
requested for help in getting through his favourites and
kith and kin. This may be evidence of Sher Singh’s conduct.
the Chairman had disclosed this fact to the Secretary
presumably when the Secretary, i.e., Mr. Tuli was in office
that is before the controversy was raked up. This evidence
has not been challenged in the cross-examination at all.
Before proceeding further to discuss the other cross-
examinations, it would be appropriate to mention that
nothing could be brought on record to establish that there
was any undue attachment between Shri Tuli and Shri Kataria
or that Shri Tuli was under any influence of the then Chief
Minister.
From the statement of Shri Kataria, it is clear that
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two irregularities had been committed. In the first place,
after the key was sealed in the presence of the Members and
the sealed envelope was signed by the Secretary and the
other two Members, the key should not have been opened
except in presence of those two signing Members because that
was the only way to ensure that the key was not opened till
it was required for compilation of results. The second thing
which is not an irregularity but an act which offends the
conscience is that after it was decided that the award list
would be opened in presence of two Members and sealed
thereafter in their presence, the Chairman and the Secretary
subsequently changed this decision unilaterally as they
feared that the Members in the process of opening the award
list would come to know the names of the examiners.
Apparently, there was an air of distrust between the Members
on the one hand and the Chairman and the Secretary on the
other. The Secretary who handled the key during the period
when the fictitious roll numbers were being allotted and the
clippings were being collected and when the answer-sheets
were being dispatched had full access to the key of which he
himself was the author and if he at all wanted to do any
mischief with the key nobody could have stopped him from
doing so. The Members did not make a complaint about the key
not being sealed or opened in their presence on every day of
such operation which lasted for nearly one month. It appears
that only when the key was kept awaiting the results that
the Members wanted to know whether the key was being kept in
a sealed cover. The Secretary and the Chairman were both
concerned about the secrecy of the examination and no Member
of the Commission had been made responsible for this act.
The Secretary kept the key in a box provided by the Members
with three locks and only when all the three keeping the
keys were present that the box could be opened. Further,
precaution had been taken in keeping the box in an almirah
with double lock which itself had been kept in a strong room
with four locks. Here again, the four locks could be opened
only when all the four persons with the keys were present.
Thus, the Secretary could not have access to the key unless
he could conspire with all the people with the keys to the
various locks. There is no allegation that there was any
such conspiracy.
The past practice of the Commission was not to open and
seal the award lists received from the examiners in the
presence of the Members or under their signatures. When it
was decided that the award lists would be opened and sealed
in presence of Members, no formal order was drawn up.
Perhaps, therefore, the Chairman thought it proper to ask
the Secretary not to open the award list in presence of the
Members for that could disclose the names of the examiners.
Since the Secretary would have been personally responsible
if any disclosure had taken place his anxiety in keeping the
Members away from such information is understandable. The
Chairman also was responsible for all confidential work. It
was primarily the Chairman and the Secretary who were
responsible for maintaining the secrecy and, therefore,
thought it proper to go about the things themselves without
involving the Members. Although we feel that the Chairman
having already assured the Members that the award list would
not be opened except in their presence, he should have
maintained this position or at least should have informed
the Members that he had instructed the Secretary otherwise.
However, since there is no categorical proof that the
Secretary or the Chairman tampered with the records or did
anything unfair, it will not be fair to doubt their
bonafides. it may be mentioned that Shri Sher Singh in his
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cross-examination has mentioned certain roll numbers on the
answer-sheets whereof some increase in the marks were made.
No notice of such information in the cross-examination can
be taken because this information was not disclosed either
in his own affidavit or in his comments. Nor did he put
these roll numbers to the Chairman when the Chairman was in
the witness box so that he could explain if any such
increase in marks had been made. It can be recalled that it
is in evidence that at times, there were mistakes by the
examiners in leaving a part of the answer-sheets unmarked or
in over-marking the answer-sheets which called for
corrective steps and on such occasions corrections had been
carried out. Shri Sher Singh says that it was the
responsibility of the entire commission and not of the
Secretary or the Chairman to make the corrections. He,
however, does not suggest that such corrections were
required to be carried out by the entire Commission sitting
together. The Secretary is the main functionary of the
Commission and could do it under the directions of the
Chairman. There is no allegation that such corrections
carried out in any answer-sheet by the Secretary was
vitiated for any reason. There is no allegation that these
corrections were dishonest or made with a view to favouring
any candidate.
Shri Sher Singh himself claims to have been the main
Member in challenging the process of maintaining secrecy in
the said examination. shri Sher Singh’s nephew had
admittedly appeared in the said examination. He did not find
it improper to take such keen interest regarding the conduct
of the said examination although he admits he was expected
to excuse himself had his nephew qualified in the written
test and been invited for the interview.
Such competitive examinations, particularly for Civil
Services, have always been contentious issues. Even on
earlier occasions so far as Haryana civil Services
Examinations are concerned, there have been a good number of
litigation with candidates challenging the examination
results. This is borne out from the documents filed by the
parties. The secrecy of the entire proceedings being so
important, we would have been happy if Shri Sher Singh,
instead of taking such keen interest in the whole affair,
had shown aloofness and had kept himself away from handling
of either the key or the award list.
Shri Tuli’s testimony is of much weight as he is an
independent witness. After the key was sealed and signed by
the Members in addition to the Secretary, on 29.12.1993,
Shri Tuli himself was transferred. The results were compiled
by the new Secretary who joined thereafter. For the
irregularities after 29th December, 1995, the Chairman
himself has assumed the entire responsibility stating he had
directed the Secretary to open the award list without the
presence of the Members and had later opened the key for
compilation of records. Shri Tuli’s conduct was not directly
in question and, therefore, he has no reason to fear any
action being taken against him. Shri Tuli’s assertion that
all the hue and cry about the secrecy being broken raised by
Shri Sher Singh was an attempt to secure access to the
records with a view to influence the result of his nephew
cannot be lightly brushed aside.
Coming to the cross-examination of Shri Kataria, we
find a reiteration that the Members were keen to know the
marks secured by different candidates so that they could
help their favourites. Apart from Shri Sher Singh, Member
Mr. I.D. Kaushik’s relative was also appearing in the
examination. As to why he did not complain against Shri Sher
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Singh till the day he resigned, Shri Kataria says that he
initially made efforts to save the examination and the
Commission’s image and for that reason was keen to carry all
the Members with him. he, therefore, did not want to vitiate
the atmosphere by making any complaint. There is nothing in
his cross-examination which can destroy his testimony in the
affidavit.
Shri Sher Singh repeatedly denies that he ever made any
approach to the Chairman to influence the result of his
nephew. He, however, admits that he never formally declared
to the Commission that his nephew was appearing in the
examination. Nor did he ever disassociate himself from the
said examination. His allegation that Shri Kataria had
worked at the instance of the then Chief Minister has not
been substantiated.
The entire evidence on record suggests that Shri Sher
Singh had some axe to grind. The testimony of Shri Kataria
and Shri Tuli that Shri Sher Singh wanted to influence the
result of his nephew read with all the other evidence on
record goes to prove that Shri Sher Singh did approach Shri
Kataria for favours for his nephew. The allegation made in
the resignation letter and extracted in the order of
reference is, therefore, held to be proved.
Before parting with the case, a reference can be made
to the subsequent appointment of Shri Kataria as the
Chairman of the Board of Horticulture. this Board is not
under the Government of the State of Haryana. He was
confronted with the question as to whether he could take up
this assignment in view of Article 319 of the Constitution
and he answered as under:
"The post of Chairman of
Horticulture Board is not under the
State Government. Therefore, I was
entitled to be appointed as its
Chairman."
Article 319(b) of the Constitution says that a Chairman
of the Public Service Commission shall be eligible for
appointment as Chairman or any other Member of the Union
Public Service Commission or as Chairman of any other State
Public Service Commission but not for any other employment
either under the Government of India or under the Government
of a State.
In view of Article 319 (b), the validity of appointment
of Shri Kataria as Chairman of the Board of Horticulture
could certainly be challenged. However, Shri Kataria
remained on the post from 19.9.1995 to 21.5.1996 and,
therefore, the question is not alive any more. Nor is it a
matter directly in issue. There is nothing on record to
prove that he got this appointment by way of a favour from
the then Chief Minister of Haryana, Shri Bhajan Lal.
For the aforementioned reasons, the Reference is
answered in the affirmative.