Para. No. 7.
In Sachin Kumar and Others v. Delhi Subordinate Service Selection Board (DSSSB) and Others,
25 this Court observed that determining when the examination process is vitiated by irregularities requires an in-depth fact-finding inquiry. The answer lies in examining whether the irregularities were systemic enough to undermine the sanctity of the process. In some cases, the irregularities may border on or even constitute fraud, which severely damages the credibility and legitimacy of the process. In such cases, the only option is to cancel the result entirely. These are situations where it is difficult to separate the tainted from the
untainted participants, and the irregularities are widespread, indicating a malaise or fraud that has corrupted the process. On the other hand, there are cases where only some participants have committed irregularities. In such
cases, it may be possible to segregate the wrongdoers from those who adhered to the rules. The innocent should not suffer for the actions of the wrongdoers. By segregating the guilty, the selection process for the untainted candidates can proceed to its logical conclusion. This aligns with the principle
of equality of opportunity under Article 16(1) of the Constitution of India, as well as the fundamental requirement of Article 14 of the Constitution, which mandates a fair, equitable, and reasonable process. Care must be taken to
ensure that the innocent are not unfairly penalized alongside the wrongdoers by cancelling the entire process. To treat the innocent and the wrongdoers
equally would violate Article 14 of the Constitution, as it would involve treating unequals equally. The innocent should not be punished for faults they did not
commit. Finally, while the decision of the recruiting body is subject to judicial control, the body must retain a measure of discretion.Para No. 8.
Sachin Kumar (supra) refers to an earlier decision of three Judges of this Court in Bihar School Examination Board v. Subhas Chandra Sinha and Others where it was held that when the conduct of all examinees, or at least the vast majority, at a particular examination centre reveals the use of unfair means, it may not be necessary for the board to give individual opportunities of hearing to the candidates if the entire examination is being cancelled. This is not a case where anyone is charged with unfair means and would need to defend themselves. An examination vitiated by widespread unfair means falls into a separate category, so giving notice in individual cases is not required.
9. In Board of High School and Intermediate Education, U.P., Allahabad v. Ghanshyam Das Gupta and Others, a Constitution Bench of this Court held that when there is a discovery of widespread unfair practices, such as the leakage of question papers or destruction of answer books, it may not be necessary to give each examinee an opportunity to be heard. While it may not be appropriate to completely whittle down the requirement of natural justice and fair play, a straitjacket formula cannot be applied when the examination was not properly conducted or when the majority of the examinees did not act as they should have. Therefore, insisting that the Board should hold a detailed inquiry into each individual case was considered incorrect. It was also observed that such an approach would delay the functioning of an autonomous body like the Board of High School and Intermediate Education.
10. In line with the above ratio, this Court in Anamica Mishra and Others v. U.P. Public Service Commission, Allahabad and Others, has held that the cancellation of the entire recruitment process was not justified as there was no systemic flaw in the entire recruitment process, and the issue was only with regard to calling the candidates for interview. However, in Madhyamic Shiksha Mandal, M.P. v. Abhilash Shiksha Prasar Samiti and Others,
29 the entire examination was cancelled in view of the report of mass copying and leakage of the question paper. In Madhyamic Shiksha Mandal, M.P. (supra), the teachers did not object to the students entering the examination hall with books, indicating their complicity. It was held that the fact that some innocent students may have suffered in the given facts was inconsequential.
11. Similarly, in Union of India and Others v. Rajesh P.U., Puthuvalnikathu and Another, this Court examined a case where a Special Committee scrutinized the answer sheets of 134 successful and 184 unsuccessful candidates, identifying only 31 as involved in unfair practices. Based on this, the Court struck down the decision of the competent authority to cancel the entire recruitment process, deeming it extreme, unreasonable, and unnecessary given the circumstances. The Court applied the test of whether there were widespread, pervasive issues that had undermined the entire process and whether it was impossible to weed out those benefiting from the irregularities or illegalities.
12. In yet another decision in Inderpreet Singh Kahlon and Others v. State of Punjab and Others, this Court elucidated three principles which must be adhered to when cancelling appointments. First, there must be satisfaction regarding the sufficiency of the material collected so as to enable the State to conclude that the selection process was tainted. Second, to determine whether the illegalities committed go to the root of the matter and vitiate the entire selection process, such satisfaction should be based on a reasoned and thorough investigation conducted in a fair and transparent manner. Third, there must be sufficient material to support the conclusion that the majority of the appointments were part of the fraudulent purpose or that the system itself was corrupt. This three-pronged test, as outlined by Sinha J., is appropriate and should be adhered to.
13. The precursor to Inderpreet Singh Kahlon (supra) involved raids that led to the recovery of large sums of cash from the house of the Chairman of the Punjab Public Service Commission. The allegations suggested that the Chairman – who served from 1996 to 2002 – had made several appointments between 1998 and 2001 for extraneous considerations, including monetary ones. The affected appellants before this Court, whose services were terminated, comprised four categories of officers selected through four recruitment examinations held between 1997 and 2001. Two FIRs came to be registered against the Chairman and other officers of the Public Service Commission. However, among the selectees, an FIR was filed only against one. In this factual background, Sinha J. drew a distinction between a proven case of mass cheating in a Board Exam and an unproven charge of corruption in the context of appointment of a civil servant. The en masse termination order setting aside several selections spread over 3-4 years was reversed. This was an unprecedented case of mass termination, with a walloping impact and consequences. Applying the threefold factual and legal test, en masse termination was set aside. In this context, it was observed that termination orders should only be issued in cases where it is found to be impossible or highly improbable to separate the tainted cases from the non-tainted ones.
14. In our considered view, the opinion expressed by Dalveer Bhandari J. in Inderpreet Singh Kahlon (supra) regarding the strict compliance with the principles of natural justice is not in line with the ratio of the earlier three Judge Bench decision in Bihar School Examination Board (supra). We would like to observe that the en masse termination in Inderpreet Singh Kahlon (supra) was based on the charge of corruption against the former Chairman, leading to the cancellation of the entire selection process and appointments, even though the charges against him had not yet been proven in a court of law.
15. Similarly, in another two Judge Bench decision in Joginder Pal and Others v. State of Punjab and Others, this Court observed that every effort should be made to separate tainted from untainted candidates, and if it is found that segregating the tainted from untainted is possible, cancellation of the entire selection process would be incompatible with law.
16. In Chairman, All India Railways Recruitment Board and Another v. K. Shyam Kumar and Others, where the decision of the Railway Recruitment Board to cancel the examination and conduct retest on the ground of malpractices involving mass copying, leakage of question paper and impersonation was struck down by the High Court, this Court – reversing the judgment of the High Court – upheld the order of the Board to cancel the examination and conduct retest. Considering the material on record, the widespread irregularities and malpractice in the first written test, and the ultimate object of fair selection, this Court upheld the finding of the Board that the test was vitiated due to mass copying, impersonation, and question paper leakage, rather than misconduct by just a few candidates. In the said facts and circumstance, the decision of the Board to cancel the selection and reconduct the examination was held to be reasonable and well-balanced.
17. In State of Tamil Nadu and Another v. A. Kalaimani and Others, there were allegations of large-scale malpractices involving tampering with OMR sheets. After re-evaluation and further scrutiny, the Teachers Recruitment Board found that 196 candidates had been the beneficiaries of fraudulent alteration of marks. This Court referred to the observations in Gohil Vishvaraj Hanubhai and Others v. State of Gujarat and Others35 to hold that the authority of the State to maintain the purity of the examination process is unquestionable. Gohil Vishvaraj Hanubhai (supra) takes note of the settled dictum that the cancellation of the examination is necessary and required in cases where large-scale malpractices in the course of the conduct of any examination process are alleged. In this context, this Court in A. Kalaimani (supra) held that despite the inconvenience caused to the untainted candidates, a serious doubt regarding the magnitude of manipulation in the examination has to be given due weightage. It was held that the finding of the Board that there were chances of more people being involved in the manipulation of marks was a bona fide decision being taken by the Board to instil confidence in the public regarding the integrity of the selection process.
18. In Vanshika Yadav v. Union of India and Others, this Court observed that a holistic view must be adopted by assessing the extent of unfair means used and whether it is possible to separate the tainted candidates from the untainted ones. The court must ensure that allegations of malpractice are substantiated and that the material on record, including investigative reports, supports this conclusion. There must be at least some evidence for the court to reach such a conclusion. However, the standard of evidence need not be unduly strict. Specifically, the material on record need not point to a single, definitive conclusion that malpractice occurred at a systemic level. Nevertheless, there must be a real possibility of systemic malaise, as reflected in the material before the court.
19. The following principles emerge from the aforesaid discussion:
• When an in-depth factual inquiry reveals systemic irregularities, such as malaise or fraud, that undermine the integrity of the entire selection process, the result should be cancelled in its entirety. However, if and when possible, segregation of tainted and untainted candidates should be done in consonance with fairness and equity.
• The decision to cancel the selection en masse must be based on the satisfaction derived from sufficient material collected through a fair and thorough investigation. It is not necessary for the material collected to conclusively prove malpractice beyond a reasonable doubt. The standardof evidence should be reasonable certainty of systemic malaise. The probability test is applicable.
• Despite the inconvenience caused to untainted candidates, when broadand deep manipulation in the selection process is proven, due weightage has to be given to maintaining the purity of the selection process.
• Individual notice and hearing may not be necessary in all cases for practical reasons when the facts establish that the entire selection process is vitiated with illegalities at a large scale.
ILLEGALITIES IN THE SELECTION PROCESS
20. In our opinion, this is a case wherein the entire selection process has been vitiated and tainted beyond resolution. Manipulations and frauds on a large scale, coupled with the attempted cover-up, have dented the selection process beyond repair and partial redemption. The credibility and legitimacy of the selection are denuded. The High Court has referred to the illegalities in theimpugned judgment as under:
“335. The evidence placed before us have established the following illegalities in the selection process: –
(i) SSC had appointed an agency namely M/s. NYSA for the purpose of scanning and evaluating the OMR sheets by a closed-door tender process in violation of Articles 14 and 16 of the Constitution of India
(ii) such agency had engaged another agency namely, Data Scantech to scan the OMR sheets
(iii) although scanning was done at the office premises of SSC, it is claimed by SSC that, SSC had never engaged Data Scantech to scan the OMR sheets or authorised M/s. NYSA to engage Data Scantech or any other agency
(iv) SSC had destroyed the original OMR sheet ostensibly with scanned mirror image thereof being preserved in its server (v) CBI did not find any scanned mirror image of OMR sheets in the server of SSC
(vi) OMR sheets had been destroyed without the scanned mirror images being preserved in the server of SSC
(vii) SSC had provided scanned OMR sheets to RTI applicants in the year 2018 till 2023 claiming that such OMR sheets were from its database although, CBI did not find any OMR sheets in the server of SSC
(viii) appointments higher than the declared vacancies had been given in respect of all 4 categories
(ix) appointments had been given to persons who were not even in the panel
(x) appointments had been given to persons who submitted blank OMR sheets
(xi) appointments had been given persons after expiry of the panel
(xii) persons placed lower in rank had been given appointment in preference to persons placed higher in rank in the merit list
(xiii) merit list containing the marks obtained by the respective candidates had never been published
(xiv) counselling had been held subsequent to the expiry of the panel
(xv) total beneficiaries of the illegalities are yet to be identified and rendered improbable given the stand of SSC, Board and State
(xvi) SSC had applied for permission to create supernumerary posts to accommodate the illegal appointees
(xvii) Recruitment Rules governing the four categories had never been adhered to either in letter or spirit” The aforesaid established irregularities, cumulatively and incrementally, demarcate the contours of the court to navigate the reliefs sought. To ensure clarity and objectivity, we shall independently examine the facts and form our conclusion.
CONCLUSION
45. The last question relates to the relief and whether it requires any modification. We find no valid ground or reason to interfere with the direction of the High Court that the services of tainted candidates, where appointed, must be terminated, and they should be required to refund any salaries/payments received. Since their appointments were the result of fraud, this amounts to cheating. Therefore, we see no justification to alter this direction.
46. For candidates not specifically found to be tainted, the entire selection process has been rightly declared null and void due to the egregious violations and illegalities, which violated Articles 14 and 16 of the Constitution. As such, the appointments of these candidates are cancelled. However, candidates who are already employed need not be asked to refund or restitute any payments made to them. However, their services will be terminated. Furthermore, no candidate can be appointed once the entire examination process and results have been declared void.
47. Some of the appointed candidates who do not fall within the category of tainted candidates may have previously worked in different departments of the State Government or with autonomous bodies, etc. In such cases, although their appointments are cancelled, these candidates will have the right to apply to their previous departments or autonomous bodies to continue in service with those entities. These applications must be processed by the respective government departments or bodies within three months, and the candidates will be allowed to resume their positions. Further, the period between the termination of their previous appointment and their rejoining will not be considered a break in service. Their seniority and other entitlements will be preserved, and they will be eligible for increments. However, for the period they were employed under the disputed appointment, no wages will be paid by the State Government or autonomous bodies. Further, if required and necessary, supernumerary posts may be created for persons appointed in the interregnum.
48. Lastly, we address the case of disabled candidates. Our attention has been drawn to one such case where the impugned judgment held that the appointee, Ms. Soma Das, shall be allowed to continue on humanitarian grounds. While we will not interfere with this finding, we make it clear that other differently- abled candidates will not be entitled to the same benefit, as it would contradict legal principles and the rule of law. However, in consideration of their disability, these candidates will be permitted to continue and will receive wages until the fresh selection process and appointments are completed.
49. The disabled candidates mentioned in the previous paragraph will be allowed to participate in the fresh selection process, if required, with age relaxation and other concessions. Similarly, other candidates who are not specifically tainted will also be eligible to participate, with appropriate age relaxation. In our opinion, such a direction would be fair and just, as it would allow these candidates to take part in the fresh selection process, which should now be initiated to fill the vacancies.
50. Our observations and findings would not influence the criminal proceedings.
51. Accordingly, we uphold the impugned judgment cancelling en bloc / entire selection process but have made certain modifications in the directions issued by the High Court. The appeals are disposed of in aforesaid terms.
52. We, however, will independently take up the issue raised in the appeal(s) filed by the State of West Bengal with regard to the direction of investigation by the CBI on the decision taken to create supernumerary posts. The Special Leave Petition(s) to this extent will be listed for hearing on 08.04.2025.
53. All pending applications, including impleadment applications, also stand disposed of. No order as to costs.
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