Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1101711018 OF 2018
(Arising out of SLP (C) Nos.3014630147 of 2018)
( Diary No.30171 of 2018)
U.P. JAL NIGAM & ORS. …. APPELLANTS
:Versus:
AJIT SINGH PATEL & ORS. …. RESPONDENTS
J U D G M E N T
A.M. Khanwilkar, J.
1. Delay condoned. Leave granted.
These appeals take exception to the judgment and order
2.
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dated 28 November, 2017 in WritA No.37143/2017 and 25
July, 2018 in Review Application No.2/2018 passed by the
Signature Not Verified
Digitally signed by
SANJAY KUMAR
Date: 2019.02.21
16:53:30 IST
Reason:
High Court of Judicature at Allahabad. The said writ petition
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was filed by the respondent Nos.1 to 11 herein to challenge the
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order dated 11 August, 2017 passed by the Chief
Engineer/Adhisthan21, U.P. Jal Nigam (for short “ ”).
Nigam
The said decision of the Chief Engineer was preceded by a
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decision of the Board of Directors of Nigam taken in its 166
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meeting held on 26 July, 2017. It was found that the
appointments made to 113 posts of Assistant Engineer (Civil),
5 posts of Assistant Engineer (Electrical/Mechanical) and 4
posts of Assistant Engineer (Computer Science/Electronics
and Communication/Electrical and Electronics) pursuant to
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notification dated 19 November, 2016, were void ab initio.
3. The High Court vide impugned common judgment and
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order dated 28 November, 2017 allowed the said writ petition
and connected matters, essentially, being of the view that the
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order passed by the Chief Engineer dated 11 August, 2017,
was in breach of principles of natural justice. The High Court
also opined that the said order of the Chief Engineer declaring
the appointments of 122 candidates as void ab initio, had
failed to record the foundational fact that it was not possible to
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distinguish tainted and untainted case(s) and that there was
possibility of all of them getting the benefit of the irregularities
committed in the selection process; and yet hastened to
terminate the appointments of all the 122 candidates by one
order, that too, without giving notice and opportunity of
hearing to the concerned appointees. As regards the
irregularities committed in the subject selection process as
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noted in the order dated 11 August, 2017, the High Court
held that individual notice to the concerned appointee was
indispensable.
Being aggrieved, the appellants filed Special Leave
4.
Petition (Civil) Nos.54105419 of 2018 before this Court. The
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same was disposed of vide order dated 16 March, 2018, in
the following terms:
“ O R D E R
Mr. Rakesh Dwivedi, learned senior counsel
appearing for the petitioners, points out that the
petitioners having found out that there were defective
questions and incorrect answer keys, the High Court
should have permitted the petitioners to rework the
merit list. He submitted that the High Court has gone
wrong in insisting for an individual notice in the factual
matrix of this case. In this regard he has also placed
reliance on a judgment of this Court in Vikas Pratap
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Singh and Others v. State of Chhattisgarh and Others,
reported in (2013) 14 SCC 494.
Mr. Mukul Rohatgi, learned senior counsel appearing
for the respondent(s), however, points out that whether the
questions were defective or key answers were incorrect are
disputed questions and, therefore, liberty should be granted
to the respondents to participate in the inquiry. He further
submits that the decision of this Court referred to by the
learned senior counsel for the petitioners may not apply to
the facts of this case.
Be that as it may, having gone through the impugned
judgment, we do not find that the door is yet closed. It is for
the petitioners, if they are so advised, to approach the High
Court itself for a liberty to rework the answer sheets on the
basis of the corrections, in case the High Court is also of the
view that the corrections need to be made.
The special leave petitions are, accordingly, disposed of.
Pending application(s), if any, shall stand disposed of.”
(emphasis supplied)
5. Pursuant to the liberty granted to the appellants, a
review application came to be filed before the High Court being
Civil Misc. Review Application No.2 of 2018. The appellants
raised the following grounds in the said review application:
“ GROUNDS
(I) Because this Hon’ble Court while deciding the matter
has not considered the fact that there is malpractice in the
selection, however, on the technical ground that opportunity
of hearing was done, therefore, order of selection was set
aside and they were directed to reinstate and be paid salary
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subject to the liberty given to the Authority to pass a fresh
order.
(II) Because this Hon’ble Court has not considered the fact
that against 113 posts once candidates have called for
interview and they were not even eligible for interview and
finally out of 113 posts 26 candidates are not even qualifying
for interview, therefore, they have wrongly been called for
interview.
(III) Because this Hon’ble Court has also not considered
the fact that out of 5 posts of Assistant Engineer
(Electrical/Mechanical), 6 new candidates are being found
eligible and 4 candidates who have earlier found eligible for
interview are not found eligible for interview and 2
candidates out of 5 candidates who have finally selected are
not found eligible even for interview, therefore, they cannot
be even considered for interview.
(IV) Because this Hon’ble Court has further not considered
the fact that for appointment on the post of Assistant
Engineer (Computer) 8 candidates who were being found
eligible for interview are not found eligible for interview and 3
candidates out of 4 candidates who are selected even they
are not eligible for interview, therefore, whole selection
process is bad.
(V) Because this Hon’ble Court while passing the order
has directed for reinstatement and consequently the persons
who are not eligible for interview they have been permitted to
allow for interview.
(VI) Because the matter has gone before the Hon’ble Apex
Court and the Hon’ble Apex Court in Special Leave to Appeal
(C) No. (s) 54105419/2018 has directed the present
Respondents (Petitioner in SLP) may approach before the
High Court, Allahabad so that proper direction may be given
by the Court.
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(VII) Because while this Hon’ble Court deciding the matter
has held that reservation is not applicable against the
temporary post, it is not sustainable in the eye of law, as
reservation is applicable for both on temporary appointment
or on permanent appointment.
(VIII) Because this Hon’ble Court while allowing the writ
petition has further directed to reinstate and make payment
of salary, which amount to allowing the persons who are not
even qualified for interview, therefore, passing the order for
reinstating them and also be paid salary to them is not
permissible under law.
(IX) Because whole appointments are temporary against
the temporary Posts, therefore, the Authorities have right to
pass order, if they are not to continue with the Employees.
(X) Because the selection was cancelled on the ground of
malpractice, as whole appointment was made in haste,
without proper calculation and checking of marks, without
publishing answer key as required and also there is some
other allegations for which STF is already making enquiry.”
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The High Court disposed of the review application on 25
6.
July, 2018 in the following terms:
“The Managing Director, U.P. Jal Nigam, Lucknow and the
Chief Engineer, U.P. Jal Nigam, Lucknow have both filed an
application for the review of the judgment and order dated
28.11.2017 by which a bunch of these writ petitions were
finally decided.
The submission of learned Advocate General of State of
U.P. is that the applicants be granted liberty to segregate
tainted and untainted candidates in passing a fresh order
for which liberty has been given.
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The order impugned in the writ petitions was of 11.08.2017
passed by the Chief Engineer, Jal Nigam which cancels the
entire selection.
In allowing the petition, we have held that the order
impugned in the writ petition has been passed in violation of
principles of natural justice and that the selection as a whole
was not liable to be cancelled without undertaking any
exercise to separate the tainted candidates from the
untainted one's. The court in the end while allowing the writ
petitions had permitted the applicants to pass a fresh
reasoned order after providing opportunity of hearing to the
petitioners and the other affected parties keeping in view the
observations made in the judgment.
The applicants till date have not passed any fresh order.
In passing the fresh order they may consider each and every
aspect of the matter and they do not require any permission
of the court for the manner in which they would pass the
fresh order.
In view of above, we do not consider that any liberty for the
above purpose is needed from the court.
We do not find any apparent error in the judgment and order
which is sought to be reviewed.
The Review Application stands disposed of .”
(emphasis supplied)
7. In the present appeals, the appellants have assailed the
aforementioned judgment and order passed by the High Court
in the review application as also the main judgment and order
passed in the writ petition, which was the subject matter of
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challenge in Special Leave Petition (Civil) Nos.54105419 of
2018. These appeals have been filed by the appellants despite
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the undertaking given by them before the High Court on 19
April, 2018 that the direction given in the order of the High
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Court dated 28 November, 2017 would be complied with on
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or before 15 May, 2018.
8. The respondents have raised preliminary objections
regarding the maintainability of these Special Leave Petitions.
First, because the impugned judgment and order was already
challenged by the appellants in Special Leave Petition (Civil)
Nos.54105419 of 2018. The said SLPs were disposed of on
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16 March, 2018 without any liberty to the appellants to
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challenge the impugned judgment dated 28 November, 2017
afresh. The appellants cannot be permitted to challenge the
selfsame judgment by filing successive petitions. If this
objection is upheld, contends learned counsel for the
respondents, the present appeals can be pursued by the
appellants, at best, only in respect of the judgment and order
passed on the review application. In that case, however, the
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Special Leave Petition solely against the judgment passed on
review application would not be maintainable, in view of the
dictum in
Sandhya Educational Society and Another Vs.
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Union of India and Others . The respondents would then
contend that the appellants cannot be permitted to resile from
the undertaking given to the High Court, especially when the
appellant(s) is a State within the meaning of Article 12 of the
Constitution of India. Relying upon the order passed by this
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Court on 16 March, 2018 in Special Leave Petition (Civil)
Nos.54105419 of 2018 and the impugned judgment passed in
review application including the order passed by this Court on
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20 August, 2018 in the present Special Leave Petitions, the
respondents would then contend that the appellants cannot be
permitted to raise any other ground except the contention that
the appellants ought to be permitted to revise the merit list by
segregating the tainted and untainted candidates with liberty
to pass a fresh order. In other words, the appellants cannot be
permitted to urge any other argument in support of the order
1 (2014) 7 SCC 701
10
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dated 11 August, 2017 passed by the Chief Engineer. For,
that order has already been quashed and set aside for the
reasons recorded in the judgment whilst allowing the writ
petition filed by the respondents and which reasons
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commended to this Court vide order dated 16 March, 2018.
9. The appellants, however, urge that the disposal of Special
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Leave Petitions by this Court on 16 March, 2018 will not
come in the way of the appellants to challenge the common
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judgment and order of the High Court dated 28 November,
2017 passed in Writ PetitionA No.37143 of 2017. Inasmuch
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as there is clear indication in the order dated 16 March, 2018
that this Court had not dismissed the special leave petitions;
but acceded to the argument of the appellants and gave liberty
to the appellants to approach the High Court to rework the
answer sheets on the basis of corrections. It is urged that the
technicalities should not come in the way of the appellants to
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persuade this Court to uphold and restore the order dated 11
August, 2017 passed by the Chief Engineer, as the entire
selection process was replete with irregularities and fraud, for
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which even criminal action has been initiated against the then
Chairman and other officials including the persons who were
authorised representatives of the agency which had conducted
the online examination, by filing an F.I.R. for offences
punishable under Sections 409, 420, 120B/201 of I.P.C. and
13(1)(d) of the Prevention of Corruption Act, 1988. The counsel
for the appellants stated that the appellants are in the process
of terminating the appointments of all other candidates
appointed under the same selection process who are presently
working with the appellants. That has become necessary in
view of the informed opinion given by the experts of Indian
Institute of Information Technology, Allahabad, that
identification and segregation of tainted and untainted
candidates is not possible. The said experts, on examination of
the files and CDs, have reached at the following conclusions,
as recorded in the communication addressed to the appellants
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dated 11 September, 2018:
“Conclusions:
I. To identify “tainted” candidates essentially implies
identifying those candidates, whose response data may have
been modified after the end of the computerbased exam. To
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perform this assessment, the original response data of the
candidates (captured immediately at the closure of the
examination window) along with relevant checksum
information is required. This reference (checksum)
information, as per observation 1 above, was neither
recorded by the service provider nor communicated to UPJN.
Therefore, identification and segregation of tainted and non
tainted candidates is not possible.
II. In the absence of information (as per observation 1)
and by noting observations 34, the authenticity of the data
as and in the form provided (observations 56) cannot be
accepted and/or verified.
III. The veracity of the entire process is also doubtful in
view of observations 710.
IV. Considering observation 8 above, it stands to reason
that the candidate response files, as submitted by the service
provider were created, rather hurriedly and certainly not as
expected. In the absence of any validating information, there
is every possibility that these candidate response files
(provided on the CDs) might have been doctored.
Final notes:
All the above observations are based on the implicit
condition that all the documents and data shared with the
undersigned have a verified provenance, and responses
provided by the personnel made available for interaction with
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the undersigned on 9 and 10 September, 2018 at the
UPJN head office in Lucknow, are true.
Additionally – This report uses two technical terms which are
being explained below for your convenience.
Checksum : A small block of digital data generated by a
checksum algorithm such as MD5 (Message Digest 5), SHA1
(Secure Hash 1), SHA2, etc. when it operates on a given source
data (file). This small block of digital data generated is like a
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digital fingerprint and is unique to the file it was generated for.
In the event that the source file changes or is modified in any
form, its checksum will change.
HTML : Hyper Text Markup Language is the basic computer
language, used to create web pages.
I hope that this report, answers the two queries raised in
your letter 104/CE (E21) Camp/18 dated 31.8.2018 to
your satisfaction.”
Reliance is also placed on the opinion given by the Associate
Professor, Computer Science and Engineering, Indian Institute
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of Technology, Kanpur dated 15 September, 2018, which
reads thus:
“After going through the pertinent agreements between the
Uttar Pradesh Jal Nigam and M/s Aptech Limited and
relevant documents, I have the following observations to
humbly present.
A brief chronology of the events is as follows:
(i) The examination was conducted on December
16, 2016.
(ii) After short listing candidates based on the exam
conducted on December 16, 2016, the interviews
of the short listed candidates were held between
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30 Dec. and 31 Dec. 2016.
(iii) The final result was declared on January 3,
2017.
(iv) On February 27, 2017, M/s Aptech Limited
delivered the result files on several CDs to U.P.
Jal Nigam Limited.
Upon examining the contents of the files presented by
M/s Aptech Limited, it appears that the earliest modification
date of any file on the CDs is much after December 16, 2016.
In a computerbased test, the response of the candidates is
uploaded in the main server (in the present case the cloud
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server) immediately after the completion of the exam.
Immediately after the examination is over, each candidate’s
response is secured so that interpolation or manipulation is
not possible after wards. In the present case, the submitted
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file was modified after 16 December, 2016 which raises a
strong doubt and it cannot be ruled out that response sheets
of candidates were not manipulated during this period.
Under the present circumstance, it is not possible to
independently confirm that response sheets of candidates in
the CDs made available are the same as responses made by
the candidates on the date of examination. There is no file in
the CDs provided by M/s Aptech Limited with the last
modification date equal to the day of the examination. Since
I have been informed that the primary data on the cloud
server is no longer available, it is difficult for me to
corroborate that the data provided on the CDs is an exact
copy of the data available immediately upon the completion
of the exam.
No audit trail containing the individual mouse clicks
and timestamps of the choices made by the students has
been provided in the CDs. Such an audit trail will make it
easier to corroborate that the answers given by the students
in the examination is the same as the answer sheet that they
were graded on later. Such an audit trail is helpful to settle
any discrepancies and challenges that the exam candidates
may later raise. Since M/s Aptech Limited has not provided
such an audit trail, it is not possible for me to corroborate
and confirm that there are no discrepancies between the
student’s actual responses and those, which were used for
grading.
Moreover, I am informed that the standard procedures
followed in public examinations like JEE (Mains). JEE
(Advanced) and GATE, were not followed. It is a customary
practice in these exams to publish the answer key to the
exam, invite any objections or rebuttals from the candidates,
consolidate these responses, and subsequently, freeze the
answer key. Grading of the answer sheets is done only after
such an opportunity has been provided to the candidates.
This common practice has not been followed in the present
case, which raises doubt as well as apprehension that the
response sheets of individual candidates might have been
compromised. The errors in answer keys of this particular
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examination may have been reduced or eliminated all
together, had such an opportunity been given before the
publication of the results of the computerbased test.
Considering the lack of primary data with M/s Aptech
Limited, it is not possible to independently confirm the
authenticity of the provided data on the CD, and hence the
segregation of tainted & untainted candidates is not
possible.
This is with response to your letter No. 110/C.E. E21
(camp)/2018, dated 04/09/2018”
The appellants have placed reliance on the decision in P.R.
2
Deshpande Vs. Maruti Balaram Haibatti to contend that
despite the undertaking given to the High Court, it is open to
pursue the legal remedy available to the appellants under
Article 136 of the Constitution of India.
10. We have heard the learned counsel for the parties,
including the counsel for the applicants in intervention
applications. We deem it apposite to first turn to the efficacy of
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the order of this Court dated 16 March, 2017. On a fair
reading of the said order passed by a twoJudge Bench (to
which one of us, Mr. Justice Kurian Joseph was a party), this
Court noted the limited grievance of the appellants that in the
2 (1998) 6 SCC 507 (paras 16 & 17)
16
wake of defective questions and incorrect answers given, the
High Court should have permitted the appellants to revise the
merit list. After noting that position, the Court granted liberty
to the appellants to approach the High Court for that limited
purpose. While doing so, no liberty was granted to the
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appellants to challenge the impugned judgment dated 28
November, 2017 afresh before this Court. No such liberty was
sought at that time. This position is restated in the order
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dated 20 August, 2018 passed in the present Special Leave
Petitions, which reads thus:
“O R D E R
The only liberty granted to the petitioners and as
rightly understood by the learned Advocate General
appearing for the State was to segregate the tainted from
the untainted as per Order dated 16.03.2018.
We direct the petitioners to file a report, in a sealed
cover, within one month from today, as to what steps have
been taken pursuant to the Judgment dated 28.11.2017
passed by the High Court and the order dated 16.03.2018 by
this Court in the Special Leave Petition.
List on 20.09.2018.
The petitioners may approach the High Court and seek
for extension of time.”
(emphasis supplied)
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One of us (Mr. Justice Kurian Joseph) was a party even to this
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order. Upon reading the order dated 16 March, 2018 and/or
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along with the order dated 20 August, 2018, it is amply clear
that the liberty granted to the appellants was very limited. It
posits that no other contention was kept open or could be
raised in the review application or in any subsequent
proceedings before this Court. As no liberty had been granted
to the appellants to challenge the judgment of the High Court
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dated 28 November, 2017 afresh, it would mean that the
appellants can pursue the Special Leave petition only against
the decision of the High Court in review application, which the
High Court had rejected for the reasons recorded in its order
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dated 25 July, 2018 (reproduced in paragraph No.6 above).
In absence of such liberty to the appellants, filing of fresh
special leave petition against the selfsame judgment is not
permissible. [See
Vinod Kapoor Vs. State of Goa and
3
Others , Kumaran Silks Trade (P) Ltd.. (2) Vs. Devendra
4
and Others and Sandhya Educational Society (supra).]
3 (2012) 12 SCC 378 (paras 9 to 12)
4 (2006) 8 SCC 555 (paras 6, 8 & 9)
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The respondents have relied upon the dictum in
11.
Sandhya Educational Society (supra), that a Special Leave
Petition only against the judgment in a review application is
not maintainable. Be that as it may, the judgment of the High
Court in review application is a benign one and is certainly not
more adverse to the appellants. For, the High Court has
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restated the dictum in its judgment dated 28 November,
2017 that it would be open to the appellants to separate the
tainted candidates from the untainted ones and to pass a
fresh, reasoned order after providing opportunity to the
affected candidates. The High Court has also clarified that the
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order passed by the Chief Engineer dated 11 August, 2017
has been quashed on the sole ground that it was hit by
principles of natural justice, having been passed without
issuing notice and affording opportunity of hearing to the
concerned candidates and also because the said order does
not refer to the fact that an exercise was already undertaken
by the appellants to distinguish the case of tainted and
untainted candidates and arrived at the conclusion that it was
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not possible to do so, before issuing the impugned order dated
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11 August, 2017.
12. The appellants have now relied upon the opinions given
by the experts (Indian Institute of Information Technology,
Allahabad and Indian Institute of Technology, Kanpur) as
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noted in the report submitted to this Court dated 20 August,
2018. The same were certainly not available to the appropriate
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authority before the order was passed on 11 August, 2017.
Indeed, the appropriate authority took into account two
inquiry reports but the same did not evince that an exercise
had already been undertaken to distinguish the tainted and
untainted candidates or that it was not possible to do so, so as
to uphold the decision of declaring the entire selection process
as void. Had the appropriate authority done that exercise and
recorded its satisfaction in that behalf, to be reflected in the
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order passed by the Chief Engineer on 11 August, 2017, the
High Court could have then followed the settled legal position
expounded in Union of India and Others Vs. O.
20
5
Chakradhar that the nature and extent of illegalities and
irregularities committed in conducting a selection will have to
be scrutinized in each case so as to come to a conclusion
about the future course of action to be adopted in the matter.
Further, if the mischief played is so widespread and all
pervasive, affecting the result so as to make it difficult to pick
out the persons who have been unlawfully benefited or
wrongfully deprived of their selection, in such cases, it will
neither be possible nor necessary to issue individual show
cause notices to each selectee. In that case, the only option
would be to cancel the whole selection process and not
limiting to one section of appointees. This view has been
restated in the recent decision in Veerendra Kumar Gautam
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and Others Vs. Karuna Nidhan Upadhyay and Others ,
(also see Joginder Pal and Others Vs. State of Punjab and
7
). The dictum in the two judgments relied upon by the
Others
appellants of O. Chakradhar (supra) and Vikas Pratap
5
(2002) 3 SCC 146 ( paras 7, 8 & 12)
6 (2016) 14 SCC 18 (paras 57 to 59 & 61)
7 (2014) 6 SCC 644 (paras 32 to 36 & 38 to 40)
21
8
Singh and Others Vs. State of Chhattisgarh and Others
will be of no avail to the appellants in the fact situation of the
present case
.
13. Suffice it to observe that while disposing of the Special
Leave Petition filed by the appellants on the earlier occasion
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vide order dated 16 March, 2018, this Court has neither
disturbed the conclusion reached by the High Court in its
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order dated 28 November, 2017 nor granted liberty to the
appellants to challenge the said conclusion in the review
application or for that matter, by way of a fresh Special Leave
Petition. The relevant conclusion of the High Court in its order
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dated 28 November, 2017, reads thus:
“In view of the above, we are of the considered opinion that
the impugned order dated 11.8.2017 has been passed in
violation of principles of natural justice without issuing
notice and without affording opportunity of hearing to the
petitioners, no exercise was undertaken to distinguish the
case of tainted and nontainted candidates to arrive at the
conclusion while passing the impugned order as such the
impugned order dated 11.8.2017 is not sustainable and is
liable to be set aside.”
14. The limited plea taken before this Court as noted in the
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first paragraph of order dated 16 March, 2018 was to allow
8 (2013) 14 SCC 494
22
the appellants to rework the question and answer sheets and
revise the merit list and issue fresh, reasoned order after
providing opportunity of hearing to the affected candidates.
That option has been kept open. It is for the appellants to
pursue the same. In other words, the appellants must, in the
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first place, act upon the decision of the High Court dated 28
November, 2017 whereby the order passed by the Chief
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Engineer dated 11 August, 2017 has been quashed and set
aside. The appellants may then proceed in the matter in
accordance with law by passing a fresh, reasoned order.
Indeed, while doing so, the appellants may take into
consideration the previous inquiry reports as also all other
relevant material/documents which have become available to
them. We make it clear that we have not dilated on the efficacy
of the opinion given by the experts of “IIIT Allahabad and IIT
Kanpur”.
In view of the above, the challenge to the impugned
15.
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judgment dated 28 November, 2017 and 25 July, 2018
must fail but with a clarification that the competent authority
23
of Nigam is free to pass a fresh, reasoned order in accordance
with law.
16. We may not be understood to have expressed any opinion
either way on the merits of the course of action open to the
appellants against the respondents including against the other
appointees under the same selection process. All questions in
that behalf are left open.
17. The appeals along with all the interlocutory applications
are disposed of in the above terms. No order as to costs.
.....……………………………...J.
(Kurian Joseph)
…..…………………………..….J.
(A.M. Khanwilkar)
New Delhi;
November 15, 2018.