Delhi High Court
Mohit Panwar And Ors. vs Airports Authority Of India on 31 March, 2016
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 31.03.2016
+ LPA 168/2016
MOHIT PANWAR AND ORS. ......Appellants
Through: Ms. Jyoti Singh, Sr. Advocate with Ms. Tinu
Bajwa and Sh. Sameer Sharma, Advocates.
Versus
AIRPORTS AUTHORITY OF INDIA ......Respondent
Through: Sh. Digvijay Rai, Advocate.
+ LPA 171/2016
ABHAY SHARMA AND ORS. ......Appellants
Through: Sh. P.P. Khurana, Sr. Advocate with Ms.
Tamali Wad, Advocate.
Versus
AIRPORTS AUTHORITY OF INDIA THR. ITS CHAIRMAN
......Respondent
Through: Sh. Digvijay Rai, Advocate.
+ LPA 172/2016
WASEEM AKRAM ......Appellant
Through: Sh. P.P. Khurana, Sr. Advocate with Ms.
Tamali Wad, Advocate.
Versus
AIRPORTS AUTHORITY OF INDIA THR. ITS CHAIRMAN
......Respondent
Through: Sh. Digvijay Rai, Advocate.
+ LPA 173/2016
MUKESH KUMAR DAHIYA ......Appellant
LPA 168/2016 and connected cases Page 1
Through: Sh. P.P. Khurana, Sr. Advocate with Ms.
Tamali Wad, Advocate.
Versus
AIRPORTS AUTHORITY OF INDIA THR. ITS CHAIRMAN
......Respondent
Through: Sh. Digvijay Rai, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
MR. JUSTICE S. RAVINDRA BHAT
%
1. The appellants are aggrieved by a common judgment and order of a
learned Single Judge whereby their writ petitions were dismissed. The
appellant in LPA 173/2016 seeks leave to file an appeal against the judgment
of the learned Single Judge in W.P.(C) 2204/2014. He argues that given the
findings in the impugned judgment, his grievance cannot be addressed
through a writ petition since the learned Single Judge would be bound by the
previous ruling that concern the same recruitment. This appellant had applied
for the post of Junior Executive (Airport Operations). In the other appeals
LPA 168/2016, LPA 171/2012 & LPA 172/2012 the common judgment and
order of the learned Single Judge whereby several writ petitions were
rejected is challenged.
2. The appellant in LPA 168/2016 had applied for recruitment for
vacancy in the post of Junior Executive (Engineering-Civil); the appellants
in LPA 171/2016 had applied for vacancy in the post of Junior Executive
(Engineering-Electrical); Junior Executive (IT) and Junior Executive
LPA 168/2016 and connected cases Page 2
(Airport Operations). LPA 172/2016 had applied for vacancy in the post of
Junior Executive (Engineering - Electrical). By the impugned order in the
writ petitions, the Airports Authority of India (AAI) decided to redo the
selection process and not proceed with the recruitment for the vacancies in
the posts to which the appellants had applied and appeared in the selection
process. Learned Single Judge rejected their contention that the decision not
to appoint them was arbitrary.
3. The facts necessary to decide these cases are that the AAI issued an
advertisement on 01.03.2012, proposing to fill 558 vacancies in 33 different
cadres/posts. Eligible applicants had to apply online. The appellants applied
to the vacancies in the cadres of Junior Executive (Engineering-Civil, IT,
Electrical and Airport Operations). The particulars furnished by them were
considered and they were allowed to appear in the written test. It is not in
dispute that the appellants were also issued with the Roll numbers; they did
participate in the written test. In the results declared in the month of January,
2013, the Authority indicated that all appellants were successful in the
written test. Some appellants were also interviewed for the posts. When they
were awaiting further intimation regarding completion of the selection
process and issuance of appointment letters, the AAI on 10.05.2013, issued a
notice stating that for administrative reasons, the recruitment process had
been kept on hold/withheld till further orders. Since no further intimation or
information was forthcoming, one of the candidates filed a writ petition -
Vikas v. AAI [W.P.(C) 399/2014]. That writ petition was disposed of on
29.01.2014. Learned Single Judge directed the competent authority to decide
the matter as expeditiously as possible - within eight weeks. The AAI had
LPA 168/2016 and connected cases Page 3
contended that a Committee had been appointed to look into the irregularities
in the conduct of the test/examination and that the Committee had
recommended that the written examination should be held once again. In the
counter affidavit filed by AAI, it had also been indicated that an
investigation was on and that legal advice was sought for guidance whether
in the light of the criminal investigation by the Central Bureau of
Investigation (CBI), what would be the appropriate action that could be
validly taken.
4. Having regard to the above background of facts, ultimately on
02.03.2014, the AAI issued a notification which stated that a second or re-
examination for the vacancies that were advertised in 2012 would be held.
The said notification (impugned notification) reads as follows:
"Notification regarding withheld recruitment under
Advertisement No.02/2012
Attention of the candidates is invited who appeared in
written examination for the post of Manager/Junior Executive of
various disciplines except Junior Executive (Fire Services) in
pursuant to above advertisement.
It is decided to redo the entire selection process afresh for
above posts, except Junior Executive (Fire Services) due to
administrative reasons.
The notified terms and conditions in the advertisement
No.02/2012 will remain same and the candidates who earlier
appeared in the examination and subsequent process are
required to appear again in the re-examination to be conducted.
Date of written examination will be notified in due course of time
on AAI website.
LPA 168/2016 and connected cases Page 4
Admit Cards indicating the date, time, venue and other
details will be sent through e-mails to all the concerned
candidates.
Candidates may keep visiting our website www.aai.aero
for further details."
5. The appellants were aggrieved by the impugned order; they
approached with several writ petitions. The AAI's counter affidavit in the
writ petitions had relied upon the report of a Committee dated 12.11.2013
which faulted the conduct of the test by M/s. Centre for Policy Research
(CPR) which had conducted the test and the entire process. The Committee
had recommended that the entire process should be redone. The AAI also
averred that the entire facts were under investigation by the CBI. During the
course of proceedings before the learned Single Judge, the AAI produced
certain file notings and also a copy of the investigation report of its Vigilance
Cell. It also filed an additional affidavit which indicated that an
overwhelming and disproportionately large number of candidates from a
particular State and that the failure ratio in all other States of the country
given that the process of selection was an All-India, was indicative of
adoption of unfair means. The vigilance report stated that whereas 1962
candidates out of 8438 from Delhi Region, constituting 23.32% of those
actually applied, appeared, i.e. working out to 44% of those appearing in the
written test, those selected were as much as 90% from the Delhi Region
alone. This far surpassed the number of candidates from any other Region.
6. The conclusions of the Directorate of Vigilance placed before the
learned Single Judge are extracted below:
"Conclusion:
LPA 168/2016 and connected cases Page 5
From the observations made through stage wise analysis
brought out in previous sections, following conclusions can be
made:
9.1 The recruitment process has been manipulated to favour
a set of candidates belonging to Delhi region especially Haryana
State or those candidates who have obtained their qualifying
degree from this State. The higher written marks of these
candidates with their poor credentials do not match with the
average marks obtained by all India candidates with better
credentials. Further it has been noticed that a large percentage
of their options of wrong questions matches with each other
which is abnormal while marking one out of four options. Thus it
can be concluded that their results were predetermined by one of
the following possible manipulation:
9.1.1 These candidates might have been supplied with the
answer keys prior to /during the examination.
9.1.2 The OMR sheets were left blank by the candidates and the
same were filled up later before declaration of results and these
concoted answer sheets (OMR) were submitted to AAI to support
the predetermined result of the written examination.
9.2 The agency for conducting the written exam was hired by
falsification of the facts, eliminating competition and without
verifying the credentials. Further the agency was given free hand
in the conduct of the examination and no proper checks and
balances were put in place, therefore, involvement of the
concerned HR officials in the manipulation cannot be ruled out.
9.3 The integrity of the results provided by the agency is also
doubtful in view of the wrong questions in the test booklets and
discrepancies in the answer keys like no answers for one question
and error in marks obtained by one of the candidate, i.e. Ms.
Mona Taneja.
9.4 The recruitment agency, M/s. CPR does not fall under the
purview of the Corporate Vigilance Department, therefore,
LPA 168/2016 and connected cases Page 6
detailed investigation of this case could not be carried out.
However, detailed investigation on irregularities in the
appointment of the agency may be ordered for fixing
responsibility of the concerned HR officials."
7. After analysing the materials placed before him and considering all the
contentions - including judgments cited, learned Single Judge was of the
opinion that the petitioners were not successful in establishing that they were
arbitrarily dealt with. He, therefore, dismissed all the writ petitions.
Contentions of the parties
8. It is contended by the appellants that the allegations made against
them are baseless and entirely conjectural. Learned counsel firstly points out
that the Committee's conclusions and the AAI's action are ex-facie
discriminatory. In this respect, it is submitted that appointment letters were
issued to candidates for the post of Junior Executive (Fire Services) which
were also covered by the same advertisement. The recruitment process was
conducted through the same agency. Therefore, the argument that the
recruitment/selection process was tainted is unsustainable in law.
9. It is argued next that the AAI had been utilizing the services of the
same agency (CPR) for the past six years. Based upon the sketchy and vague
report of the Committee and the Directorate of Vigilance, the competent
authority could not have concluded that the entire selection process had to be
redone. It is argued that even though 20 candidates were selected for the post
of Junior Executive (IT) of which 14 are from Haryana, the fact remained
that these candidates were from different Universities. Therefore, the mere
fact that large percentage of successful candidates belonged to a particular
LPA 168/2016 and connected cases Page 7
State or Region itself could not have been factor to hold that the entire
selection process was invalid.
10. It is argued next that the probability of two candidates having identical
written answers cannot be ruled out. The reliance of the Committee's report
and the AAI's position on this too demonstrated that some of the successful
candidates' answers was almost fully identical to others who had failed, did
not establish anything. In other words, the high probability of wrong answers
did not in any way establish - much less in any conclusive manner that the
appellants had adopted unfair means. Learned counsel highlighted that the
Supreme Court has in several judgments, held that wherever allegations of
large scale irregularities are levelled, the decision making authority is
obliged to firstly attempt to sift the particulars and arrive at the truth. If it is
possible to segregate tainted candidates from genuine ones, the concerned
agency is under an obligation to do so under Article 14. Learned counsel
relied upon East Cost Railway v. Mahadev Appa Rao AIR 2010 SC 2754 and
Joginder Pal v. State of Punjab 2014 (6) SCC 644. It was argued that the
decision of the competent authority was not based on any credible much less
material circumstances to justify the AAI's position that the appellants'
candidature and selection virtually had to be nullified and that they had to
attempt the selection process afresh.
11. It is submitted that the learned Single Judge overlooked the fact that
circumstance of fewer candidates appearing and attempting the written test
proved nothing; such events were commonplace in Civil Services
examinations. That a lesser number of candidates actually appeared could
not lead to an inference that there was any unfairness in the test held by the
LPA 168/2016 and connected cases Page 8
outside agency. Furthermore, contended senior counsel, at one stage that
AAI had also taken a stand that questions and answer booklets were not
given by CPR. Counsel points to a letter, dated 04.09.2013 addressed to
AAI, by CPR stating that for the past six (6) years the CPR is conducting the
examinations for the respondent. The CPR further stated that it has always
supplied the original answer sheets call letters, and attendance sheets to the
respondent along with the result of each examination. Copies of objective
question booklets alongwith answer keys in respect of all the tests are
supplied to the respondent. The respondent never asked CPR to provide any
other documents in the past one year, when it sent various results. This issue
was urged by AAI for the first time. It was also submitted that all the answer
sheets were physically counted and tallied with the call letter before sending
to the AAI. Towards the end AAI gave up all previous pleas and relied upon
certain internal report. In preliminary report of the Directorate Vigilance it
was observed that 44% candidates, who appeared for written test are from
Delhi Region. However, in the final selection,90% candidates are from Delhi
Region.
12. Highlighting that AAI's investigation compared several answers of the
petitioners to the not attempted answers, it is urged that in an examination
where out of four given choices, one correct choice is to be opted, sometimes
there is confusion which can lead to probabilities. Merely because out of 120
questions a candidate did not attempt 9 questions, out of which some
matched with other appellants, by no stretch of imagination can lead to the
conclusion of using unfair means. The learned Single Judge overlooked that
the similarity in respect of some wrong answerswith two other candidates
LPA 168/2016 and connected cases Page 9
was merely a coincidental and probability of only five to nine similar
answers being wrong cannot be absolutely ruled out. On the contrary, such a
probability can be much higher. It is submitted that the candidates appeared
from different rooms at the Delhi Centre. There was no link or connection
between candidates, or for that matter, similarly between candidates
appearing in different centres, but attempting in an identical manner. AAI
had that as there is no negative marking in the test the reason for not
attempting a question creates doubt about the candidate. In an objective type
paper where 120 questions are to be answered in 120 minutes, it is common
that some questions may remain unattempted. It is was further stated by the
respondent in the Report that even after not attempting several questions, the
appellants scored good marks in written examination and were selected. The
argument that such candidates manipulated their test attempts and used
unfair means, therefore, is without merit.
13. On behalf of the AAI, it was contended that when the list of successful
candidates for the post of Junior Executive (Information Technology) was
submitted by the Human Resources Directorate to the Chairman for
approval, the Chairman became suspicious about why most of the candidates
i.e., 80% approximately were selected from Delhi/Haryana. He informed the
Vigilance Directorate which carried out the investigation. The Vigilance
Directorate conducted a detailed investigation with respect to the
examination conducted to the post of Junior Executive (Information
Technology) and submitted their initial finding indicating various
irregularities observed by them. It is his submission that the irregularities
observed by the Directorate are not only discrepancy related to procedure
LPA 168/2016 and connected cases Page 10
and monitoring but are related to criminal misconduct for manipulating the
written examination. The Directorate also recommended that there is no
requirement to wait for consolidated report for all other disciplines/cadres
that were advertised.
14. The findings in respect of one discipline were sufficient ground for
sending the whole matter to the CBI. The CBI did not take up the case and
was of the opinion that the matter must be looked into by the Crime Branch,
Delhi Police. AAI argues that the Crime Branch is investigating the whole
case. Urging that if the recruitment process is flawed AAI states that the
petitioners should not get advantage of the same.
15. The recruitment process was outsourced to a private organization and
from the investigation carried out by the Vigilance Directorate and the
subsequent inquiry carried out in terms of the order of this Court, prima facie
it showed that the process was manipulated as it disclosed that
predominantly those candidates who appeared from Delhi were successful.
AAI relied on its affidavit dated January 21, 2015 to contend that the total
number of applicants is the highest in Delhi, the candidates appeared in the
written test was 49.94% and the presence of the candidates in first hundred
as per written test was 94% and the total number of candidates called for
interview was 78.11% in Junior Executive (Airport Operations). It is stated
that a similar position showed up in other streams inasmuch as in Junior
Executive (Engineering-Civil), the total number of applicants from Delhi
were 33.9%; candidates appeared in the written test were 43.67%, presence
of candidates in first hundred as per written test was 73% and number of
candidates called for interview were 79.45%. The preliminary report of the
LPA 168/2016 and connected cases Page 11
Vigilance Directorate was relied on for the conclusions of that Directorate
that there was cogent material for the respondent to take a decision. The
exam conducted could not be trusted.
16. AAI highlighted that the manner in which the agency was appointed
by the HR Directorate bypassing the settled procedure coupled with the
irregularities pointed out, were sufficient grounds to say that the recruitment
process could not be trusted as it tended to exclude a large percentage of
candidates from the rest of the country, who could not appear and take the
test and also in a skewered and lopsided result. It was stressed that there was
no mala fides in the impugned action; there is no stigma attached to any of
the petitioners. The test of reasonableness was met with. AAI relied on the
decisions reported as Sarkarsan Dash v. Union of India, (1991) 3 SCC 47;
Union of India and Ors. v. Anand Kumar Pandey & Ors. (1994) 5 SCC 663;
East Coast Railways v. Mahadev Appa Rao & Ors. (2010) 7 SCC 678;
Union Territory of Chandigarh v. Dilbagh Singh & Ors (1993) 1 SCC 154;
Pritpal Singh v. State of Haryana (1994) 5 SCC 695 and State of A.P. & Ors.
v. D. Dastagiri & Ors., (2003) 5 SCC 373.
Analysis & Findings
17. The parameters applicable in judicial review whenever the recruiting
authority suspects use of unfair means on a widespread scale, were first
considered in Bihar School Examination Board v. Subhash Chandra Sinha
and Others (1970) 1 SCC 648. It was held that:
"13. This is not a case of any particular individual who is being
charged with adoption of unfair means but of the conduct of all
the examinees or at least a vast majority of them at a particular
LPA 168/2016 and connected cases Page 12
centre. If it is not a question of charging any one individually
with unfair means but to condemn the examination as ineffective
for the purpose it was held. Must the Board give an opportunity
to all the candidates to represent their cases? We think not. It
was not necessary for the Board to give an opportunity to the
candidates if the examinations as a whole were being cancelled.
The Board had not charged any one with unfair means so that he
could claim to defend himself. The examination was vitiated by
adoption of unfair means on a mass scale. In these circumstances
it would be wrong to insist that the Board must hold a detailed
inquiry into the matter and examine each individual case to
satisfy itself which of the candidates had not adopted unfair
means. The examination as a whole had to go."
18. The observations and findings of the learned Single Judge, relevant for
this appeal, are as follows:
In the preliminary report of the Directorate of Vigilance, which
looked into the procedure adopted for the recruitment for the
post of Junior Executive (I.T) from different aspects including
advertisement, application process, written examination,
interview, result, OMR sheets of the candidates called for the
interview, test booklet/answer keys. With regard to written
examination, some of the observations in the preliminary report
are as under:-
"4.2.3 It is apparent from the agency's inability in adopting 9/10
digit roll numbers that the agency was already having pre-
printed Test booklets/OMR sheets in advance before conducting
the exam for advertisement No. 02/2012. This is against the spirit
of fair and transparent conduct of exams.
4.2.4 The emails to the candidates requesting to download the
hall ticket were not sent before commencement of the written test
on 26.08.12. Also it was not checked that how many candidates
had downloaded their hall tickets. This casual approach might
have led to lower percentage (19%) of candidates turning up for
the written exam.
LPA 168/2016 and connected cases Page 13
4.2.5 The half ticket issued by the Dte. Of HR to the candidates
was not having their scanned photographs and signatures
uploaded at the time of application for matching the same during
the written examination conducted by the agency. The details of
the online recruitment applicants were forwarded by Directorate
of HR to the agency in excel format does not include the scanned
copy of photograph/digital or scanned signature of the
candidate. Therefore the signature and photographs of the
candidates were not verified during/after the written exams. This
creates opportunity for proxy sittings in the exam.
4.2.6 It has been observed that the observer have given their
report in a tailor made form i.e., Total No. of Candidates and
their attendance at the specific center. However, no specific
reports/Comments in the form of general administration i.e., any
doubt about the question/copying or leakage of exam or any
specific complaint made by the Candidate at the particular
center was not given. However, Directorate of HR sought the
report through RED/APD on conduct of the examination which
has not been submitted by most of the center observers.
4.2.7 The agency vide their letter dt. 19.09.12 submitted the
result of written test to GM (HR) which was held on 26.08.12 for
the post of JE (IT). After receipt of the result from the agency the
result was uploaded on AAI website on 16.10.12. However, it has
been observed that no crosscheck or re-verification of the result
viz-à-viz marks obtained by the successful candidates has been
done by the HR as a confirmation.
4.2.8 It has been observed that after receiving the applications
online, all the other activities were done manually or through
M/s. CPR. This is not in spirit of online recruitment systems.
4.2.9 There is a scope for unscrupulous candidates to run away
with the question paper in the beginning of exam or adopt other
sophisticated electronic gadgets to copy and leak the paper
which can be solved and passed on to the candidates sitting in
the examination center since there is no preliminary screening of
candidates.
LPA 168/2016 and connected cases Page 14
4.2.10 There was no syllabus provided to the agency/candidates
for written examination. The pattern of examination was
provided to the agency/candidates in the name of the syllabus"
45. Similarly, under the heading "Result" the following were the
observations of the Directorate of Vigilance:-
"6.2.1 Following has been observed from the list of selected
candidates:
6.2.1.1 11 out of 11 General candidates, 4 out of 5 OBC
candidates, 2 out of 3 SC candidates and 1 out of 1 ST candidate
selected from the post are from Delhi Region. Out of 20
candidates selected 14 candidates are either from Haryana state
or have obtained their qualifying degree from this state.
6.2.1.2 The candidates of Delhi region mostly belonging to the
Haryana or studied there have scored up to 20% higher marks in
the written exam in their respective categories compared to any
other state/region.
6.2.1.3 6 out of 11 general candidates, 3 out of 5 OBC
candidates were selected due to higher written marks and scored
lower marks in interview.
6.2.1.4 Out of the 11 selected general candidates 7 candidates
have secured less than 70 percentages of marks in their
qualifying degree, out of which 6 candidates had 65% marks or
below in their qualifying degree.
6.2.1.5 Out of 5 OBC candidates selected for the post 3 were
having 63% or lesser marks in their qualifying degree but scored
very high marks in written exams and lower marks in the
interview.
6.2.1.6 Out of 20 successful candidates 8 candidates are from
Maharshi Dayanand University and 3 candidates are from
Kurukshetra University.
6.2.2 Following has been observed from the list of unsuccessful
candidates:
LPA 168/2016 and connected cases Page 15
6.2.2.1 The 12 out of 14 unsuccessful general candidates have
secured marks in written exams ranging from 73 to 76. All these
candidates were a good mix of all India students. Among these
12 unsuccessful general candidates 3 were having more than
80% of marks, 7 were having more than 75% marks and 2 were
having more than 70% marks in their qualifying degrees.
6.2.2.2 The remaining two general candidates belonging to the
Haryana scored very high marks in written exam but could not
be selected as one candidate scored very low marks (5) in
interview and the other candidate did not attend the interview.
Both these candidates have secured less than 70% marks in their
qualifying degree.
6.2.2.3 Similarly 2 OBC candidates belonging to the Haryana or
studied there scored very high marks in written exam but could
not be selected as 1 OBC candidate scored very low marks (4) in
interview and the other candidate did not attend the interview.
Both these candidates have secured less than 70% marks in their
qualifying degree.
6.2.2.4 The only unsuccessful SC candidate belonging to the
Haryana or studied there scored highest marks in SC category,
but could not be selected due to very poor marks in the interview
(11). The candidate has secured 72% marks in the qualifying
degree.
6.2.2.5 The presence of the candidates of Haryana region or
having qualifying degree from Haryana in the list of unsuccessful
candidates is very low i.e., only 5 candidates out of 36 and are
mentioned in Para 6.2.2.2, 6.2.2.3 and 6.2.2.4 of the report.
These 5 candidates have scored up to 20% more marks than
other candidates in their respective categories but were not
selected due to very poor marks in interview or being absent.
These candidates could have been selected if they had scored
even 50% marks in the interview.
6.2.3 Majority of the general candidates finally selected for the
posts appears to be predetermined candidates by virtue of their
high scores in written examination. The analysis of the results
LPA 168/2016 and connected cases Page 16
indicates that the marks of the written examination are
manipulated to favour a set of candidates mostly belonging to
Haryana state or studied there. These candidates are otherwise
not academically sound and does not appear suitable for the post
considering their credentials and scores in interview.
6.2.4 The five OBC candidates who have scored high marks in
written examination for the five vacancies in OBC category also
appears to be predetermined. This is not in line with the all India
trend of scores which strongly suggest manipulation in written
exam. However, two of them could not make it to final selection
as one of the candidate scored only 4 marks in interview and one
candidate could not attend the interview.
6.2.5 One of the SC candidates who have scored high marks in
written exam for three vacancies in SC category also appears
predetermined. However this candidate could not make it to final
selection besides scoring higher marks in the written exam
among SC candidates due to poor score in interview.
6.2.6 The candidates who have secured bare minimum of 5 to 10
marks out of 30 in the interview are also coming in the merit list
for giving offer of appointment due to their higher percentage in
the written test which is having weightage of 80%. However, no
action was taken in this regard by department of HR.
6.2.7 The random checking of written test marks obtained by the
candidates appeared for the interview was carried out by the
team and it is observed that marks of one of the candidate Ms.
Mona Taneja (Roll No. 110487) comes to 103 where as the
marks obtained has been shown as 101 in the results provided by
M/s. CPR. This creates doubt over validity of the results.
6.2.8 The majority of candidates selected are from Delhi Region
in which Haryana state also falls. The Region-wise numbers of
candidates who applied for the post and subsequently appeared
for written test are as under which shows that 44% candidates
appeared for written test are from Delhi Region. However, in the
final selection is 90% candidates are from Delhi Region.
LPA 168/2016 and connected cases Page 17
Centre Name Center Code Total Applicant % of total
Candidates
appeared for
Written test
Ahmedabad 10 641 144 (22.06%)
Allahabad 7 948 222 (23.42%)
Chennai 4 3533 647 (18.3%)
Delhi 1 8438 1962 (23.25%)
Guwahati 8 219 36 (16.43%)
Hyderabad 5 3164 440 (13.91%)
Kolkata 3 1753 370 (21.11%)
Mumbai 2 1354 244 (18.02%)
Nagpur 9 1007 155 (15.39%)
Trivandrum 6 2004 206 (10.28%)
Total 23061 4426
• % of Delhi Region candidates among the candidates appeared
for written test: 44%
• % of Delhi Region candidates selected among the candidates
called for interview: 69.6%
• % of Delhi Region candidates finally selected i.e., 18
candidates out of 20 : 90%"
46. On OMR sheets of the candidates, called for the interview,
the following are the observations:-
"7.2.1 Following has been observed while analyzing the OMR
sheets used for the written examination:
i. In the column of OMR sheets name, roll No. , booklet series
LPA 168/2016 and connected cases Page 18
and Test Form No. etc., has been filled by the candidates in ink
or pencil as per their desire, no clear cut instructions is given
against these columns.
ii. The OMR sheet does not indicate the post code, date of
examination etc.
iii. The OMR sheets supplied were not having Serial Nos.
7.2.2 It has been observed that Dte. Of HR has not ensured the
following before/after conducting the exam:
a. Vetting of the answers keys from third independent agency.
b. Checking of sample test booklets/sample OMR sheets.
c. Reconciliation of final result with the OMR sheet.
7.2.3 The marking of the answers in the OMR sheet is done by
the candidates by darkening the circles with HB pencils, which
can be tempered/altered with in absence of proper checks like
obtaining a photocopy of the OMR sheets at the exam centers by
AAI observers.
7.2.4 The table for 'A' series booklet shows that the candidates
belonging to Haryana state or studied there or have scored
higher marks in written exam have marked same options for the
10 wrong questions in this test booklet. It appears that these
candidates were supplied with answer keys wherein some
answers were deliberately marked wrong, probably to control the
scoring of marks in the written examination. An extract of the
table in respect of these candidates is as below:
Roll No. Name Place of Marks Wrong SI. No. of
Residence obtained in answers wrong
written answers
exam having same
option of the
candidates
who have
scored
higher
marks in
written
LPA 168/2016 and connected cases Page 19
exam
110487 Mona Karnal, 101 17 21(4) 26(3)
Taneja Haryana 29(2) 33(3)
Successful 45(4) 58(3)
72(4) 73(1)
82(3) 87(4)
102(2) - 10
answers
111479 Vineet Bahadurg 88 32 21(4) 26(3)
Asiwal arh, 29(2) 33(3)
Successful Haryana 45(4) 58(3)
72(4) 73(1)
82(3) 87(4)
102(2) - 10
answers
114555 Sumit Jind, 96 24 21(4) 26(3)
Haryana 29(2) 33(3)
Unsuccessful 45(4) 58(3)
72(4) 73(1)
82(3) 87(4)
102(2) - 10
answers
111091 Sandeep Kanpur, 95 25 21(4) 26(3)
Chauras UP 29(2) 45(4)
Successful ia 69(1) 72(4)
73(1) 82(3)
87(4) 102(2)
117(3)
119(1) 10
answers
7.2.5 The table for 'B' series booklet shows that the candidates
belonging to Haryana state or studied there or have scored
higher marks in written exam have marked same options for the
12 wrong questions in the test booklet. It appears that these
candidates were supplied with answer keys wherein some
answers were deliberately marked wrong, probably to control the
scoring of marks in the written examination. An extract of the
LPA 168/2016 and connected cases Page 20
table in respect of these candidates is as below:
Roll No. Name Place of Marks Wrong SI. No. of
Residence obtained in answers wrong
written answers
exam having same
option of the
candidates
who have
scored
higher
marks in
written
exam
112292 Ms. Joyti Gurgaon, 98 22 14(4) 22(2)
Yadav Haryana 26(3) 38(4)
Successful 51(3) 62(4)
66(2) 72(3)
77(4) 98(2)
118(4)
119(I)-12
Answers
114864 Anurag Rohtak, 99 21 14(4) 22(2)
Duhan Haryana 26(3) 38(4)
Unsuccessful 51(3) 62(4)
66(2) 72(3)
77(4) 98(2)
118(4)
119(I)-12
Answers
7.2.6 The table 'D' series booklet shows that the candidates belonging
to Haryana state or studied there or have scored higher marks in
written exam have marked same options for the 11 wrong questions in
this test booklet. It appears that these candidates were supplied with
answer keys wherein some answers were deliberately marked wrong,
probably to control the scoring of marks in the written examination.
An extract of the table in respect of these candidates is as below:
LPA 168/2016 and connected cases Page 21
Roll No. Name Place of Marks Wrong SI. No. of
Residence obtained in answers wrong
written answers
exam having same
option of the
candidates
who have
scored
higher
marks in
written
exam
111946 Apoorva Tri Nagar, 101 19 8(3), 36(3),
Delhi 39(2) 55(4)
78(4) 79(1)
82(4) 83(1)
86(2), 97(4),
112(2)-11
answers
112406 Sunil Phour Panipat, 98 22 8(3), 36(3),
Haryana 39(2) 55(4)
78(4) 79(1)
82(4) 83(1)
86(2), 97(4),
112(2)-11
answers
108082 Sachin Gurgaon, 100 20 8(3), 36(3),
Punia Haryana 39(2) 55(4)
78(4) 79(1)
82(4) 83(1)
86(2), 97(4),
112(2)-11
answers
114866 Mahesh Rewari, 91 29 8(3), 36(3),
Yadav Haryana 39(2) 55(4)
78(4) 79(1)
82(4) 83(1)
86(2), 97(4),
LPA 168/2016 and connected cases Page 22
112(2)-11
answers
109090 Vandana Gurgaon, 92 28 8(3), 36(3),
Haryana 39(2) 55(4)
78(4) 79(1)
82(4) 83(1)
86(2), 97(4),
112(2)-11
answers
107914 Manoj Delhi 103 17 8(3), 36(3),
Choudhary 39(2) 55(4)
78(4) 79(1)
82(4) 83(1)
86(2), 97(4),
112(2)-11
answers
7.2.7 It has been noticed that there is a relationship between the
same questions in the different series. The findings are tabulated
below:
SI. No. of the same questions in various series
A B C D Remarks
21 14(-7) 46(+25) 31(+10) All the
questions are
26 19(-7) 51(+25) 36(+10) same bearing
different serial
29 22(-7) 54(+25) 39(+10)
number
33 26(-7) 58(+25) 43(+10) depending upon
the series of the
45 38(-7) 10(+25) 55(+10) test booklet.
The serial
58 51(-7) 23(+25) 8(+10)
numbers shown
72 62(-10) 102(+30) 82(+10) are
mathematically
73 63(-10) 103(+30) 83(+10) related.
LPA 168/2016 and connected cases Page 23
82 72(-10) 112(+30) 92(+10)
87 77(-10) 117(+30) 97(+10)
*Deduct 60 if total exceeds 60
It is evident from the table that all the test booklet series are
mathematically related and answers in different series can easily
be computed with a single key.
7.2.8 On the basis of the above relationship comparison of the
options of the same wrong questions among different series was
carried out and the same tabulated below:
SI. No. of the same questions in various series
A B C D Remarks
21(4) 14(4) 46(4) 31(4) The number within
the bracket shows the
26 (3) 19(3) 51(3) 36(3) SI. No. of the option
marked by the
29(2) 22(2) 54(2) 39(2)
candidate. All these
33(3) 26(3) 58(3) 43(3) candidates have
marked same option
45(4) 38(4) 10(4) 55(4) for these questions
irrespective of their
58(3) 51(3) 23(3) 8(3)
series for which the
72(4) 62(4) 102(4) 82(4) answers are wrong.
73(1) 63(1) 103(1) 83(10)
82(3) 72(3) 112(3) 92(3)
87(4) 77(4) 117(4) 97(4)
Ms. Mona Ms. Jyoti Sh. Manu Sh. Manoj
Taneja Yadav Yadav Choudhary
The table shows that the candidates belonging to Haryana state
or studied there or have scored higher marks in written exam
LPA 168/2016 and connected cases Page 24
have marked same options for the 10 wrong questions
irrespective of the series. Thus it can be inferred that
predetermined candidates were supplied with answer keys during
or prior to the examination resulting in same options for wrong
answers. Such type of similarity while marking one of the option
out of four is abnormal which cannot take place without outside
help during or prior to examination."
47. Against test booklet/answer keys, the following were the
observations:-
"8.2.1 On examination of the test booklets series A, B, C & D
provided by the HR, following is observed:
a. No column was provided for mentioning the Roll No. hence;
there exist possibility to exchange the test booklets for copying
and also providing the answers from outside.
b. Test Date and Post code was not mentioned.
c. There was no instruction on wrong answer or negative
marking.
d. Instruction for use of mobiles/calculators or electronic gadgets
is not mentioned in the test booklet.
e. No instructions were given in the booklet for filling up the
OMR sheets.
f. The used test booklets were sought from HR directorate but the
concerned officials have no clue whether the test booklet are
given to the candidates after completion of written examination
or still available with the recruiting agency. This confirms that
Directorate of HR did not pay much needed attention to the
recruitment process.
8.2.2 The pattern of the question paper for IT discipline is kept at
par with non technical disciplines i.e., 50% questions from the IT
discipline and 50% from General
Knowledge/Aptitude/Reasoning/English etc. Whereas in the other
technical disciplines 70% of the questions were from technical
side and 30% questions were from General
LPA 168/2016 and connected cases Page 25
Knowledge/Aptitude/Reasoning/English etc. The treatment of IT
as non technical discipline is not justified and it appears that no
thought was given for deciding pattern of question paper for this
highly technical discipline.
8.2.3 The questions asked in the written test were randomly
checked and following has been noticed: 8.2.3.1 Among general
questions two numbers of questions were found wrong. (Q. No. 2
& 21 in series A ', Q. No. 55 & 14 in series 'B', Q. No. 27 & 46 in
series 'C' and Q. No. 12 & 31 in series 'D') as there is no correct
answer in first question and in the second question the question
asked itself is wrong.
8.2.3.2 On perusal of the answer keys submitted by the agency to
Dte. Of HR in a sealed cover, it is seen that same is not certified
or countersigned by the authorized signatory.
8.2.3.3 It has also been observed from the answer keys that no
correct answer is given against one question i.e., Booklet Series
A-Q No. 14, B-Q. No. 7, C-Q.No. 39 & D-Q. No. 24. However it
is found that the agency has evaluated the OMR sheets by taking
option 3 as correct answer for this question. This shows that the
agency's casual approach during evaluation."
48. The final conclusion of the Directorate of Vigilance is as
under:-
"Conclusion
From the observations made through stage wise analysis brought
out in previous sections, following conclusions can be made:
9.1 The recruitment process has been manipulated to favour a set
of candidates belonging to Delhi region especially Haryana state
or those candidates who have obtained their qualifying degree
from this state. The higher written marks of these candidates with
their poor credentials do not match with the average marks
obtained by all India candidates with better credentials. Further
it has been noticed that a large percentage of their options of
wrong questions matches with each other which is abnormal
while marking one out of four options. Thus it can be concluded
LPA 168/2016 and connected cases Page 26
that their results were predetermined by one of the following
possible manipulation:
9.1.1 These candidates might have been supplied with the answer
keys prior to/during the examination.
9.1.2 The OMR sheets were left blank by the candidates and the
same were filled up later o before declaration of results and
these concocted answer sheets (OMR) were submitted to AAI to
support the predetermined result of the written examination.
9.2 The agency for conducting the written exam was hired by
falsification of the facts, eliminating competition and without
verifying the credentials. Further the agency was given free hand
in the conduct of the examination and no proper checks and
balances were put in place, therefore involvement of the
concerned HR officials in the manipulation cannot be ruled out.
9.3 The integrity of the results provided by the agency is also
doubtful in view of the wrong questions in the test booklets and
discrepancies in the answer keys like no answers for one
question and error in marks obtained by one of the candidate i.e.,
Ms. Mona Taneja.
9.4 The recruitment agency M/s. CPR does not falls under the
purview of the Corporate Vigilance department, therefore
detailed investigation of this case could not be carried out.
However, detailed investigation on irregularities in the
appointment of the agency may be ordered for fixing
responsibility of the concerned HR officials."
19. In the main, the appellants' submission with respect to the correctness
of the impugned judgment are - firstly that no material was shown in the
first instance by the AAI that the decision to redo the entire selection process
was based upon any cogent evidence. Rather, the so-called conclusions of
the Vigilance Committee report were sketchy and vague, in any event,
insufficient for a sustainable decision. The second argument is that the
methodology adopted by the AAI in deciding that there were widespread
LPA 168/2016 and connected cases Page 27
irregularities or manipulations cannot stand the test of law. Here, it is
submitted that the sample drawn for the State, i.e. the results of candidates
appearing in one particular discipline could not have been used for
invalidating selections of the entire 558 vacancies for which tests were held
in different centres on different times. In short, this argument is that the
sample drawn was on an unscientific basis which led to a grossly distorted
conclusion unsustainable on the test of Article 14 of the Constitution of
India. The last argument on the factual materials and the findings are that the
learned Single Judge overlooked the fact that the same recruitment process
included selection to the Junior Executive (Fire Services). Yet, the selected
candidates for these posts were appointed, thus pointing to a grossly
discriminatory approach.
20. So far as the first submission goes, the Court, at the outset notices that
whenever unfairness in a selection or recruitment process is alleged, the
recruiting agency is expected to conduct a comprehensive analysis. In this
case, undoubtedly, at the early stages, there was no reason for the AAI to
suspect irregularity. However, when the results were prepared and presented
to the competent authority, i.e. Chairman, he noticed that the selection
indicated a lopsided geographical result. This triggered a suspicion and an
investigation and consequently report by a Committee. The Committee's
recommendations and its factual analysis is contained in a 20-page report the
conclusions of which have been extracted. There are certain important
conclusions which have not been disputed by the appellants. Firstly, that the
agency's selection for the purpose of conducting the written test, was
irregular. The normal process apparently was not followed by the HR
LPA 168/2016 and connected cases Page 28
Directorate. This is notwithstanding that the agency had been earlier
involved in the recruitment process.
21. The second and perhaps the most important observations of the
Committee was that as against a large number of candidates who had in fact
applied, Roll Numbers were made available and availed of by a very
insignificant percentage - ranging between 19 to 25%. In the case of Delhi
Region, however, the percentage was far higher, i.e. 44%. This itself was an
important aspect, because the making available information about the roll
numbers etc, i.e. information dissemination about the recruitment process is
the foundation of fairness. If those from a particular Region were more
favoured, the access to the selection process become questionable. In other
words, if a defective method is adopted to intimate candidates about their
eligibility for selection, the process would inevitably start with a taint.
22. During the course of the hearing, AAI had produced materials in the
form of an elaborate analysis which formed the basis for the tabular charts
extracted in the judgment. These bring out in stark relief the fact that an
overwhelmingly large percentage of candidates from the Delhi Region
succeeded in the selection. The Delhi Region undoubtedly had a higher
percentage in the participation in most of the disciplines yet the result were
disproportionately weighed in their favour - between 80 to 90% success in
almost all disciplines.
23. The obligation to separate genuine candidates and ensure that they do
not suffer on account of irregularity practiced by others or the taint attached
to a part of the selection process is undoubtedly on account of Article 14.
Yet, if in a given case, the authority or the recruiting authority or State
LPA 168/2016 and connected cases Page 29
agency has material which points to the fact that separating grain from chaff
is an impossible task in an ultimate analysis, its decision not to proceed with
the recruitment cannot be faulted. The larger goal of ensuring equality of
access to all in matters of public employment by Article 16 is to be sub-
served by State and every agency under it. If in the course of its
investigation, keeping in mind the limited nature of resources available with
it, it is unable to separate genuine candidates from those who actually
practiced use of unfair means to get selected, the Court cannot insist that
there had to be greater or more searching scrutiny. In other words, in judicial
review, the sufficiency of materials to back a decision of the executive
Government is always to be kept in mind having regard to the nature of the
decision and the subject matter involved. Here, a large number of candidates
appeared for 558 vacancies. The resources and time need to conduct a
detailed and close scrutiny of every answer sheet, possibly would have
equalled, if not surpassed the resources needed to hold the selection test. In
other words, if 'X' amount was to be spent for holding the recruitment
process, and the amount expendable, or expected to be spent for
investigation, was three or five times 'X', the Court cannot insist that in the
absence of such searching scrutiny, the entire result could not be cancelled.
In other words, the question of sufficiency of material is always guided by
the decision of the subject matter and the nature of the decision taken.
24. A balance of competing interests - one of fairness in the selection
process, and the other of fairness to notify candidates must always be struck.
In this case, the balance was struck in favour of former - to an extent, at the
expense of the latter. At the same time, AAI made sure that those eligible in
LPA 168/2016 and connected cases Page 30
the first instance and who had competed in the earlier recruitment initiated in
2012 were not excluded on account of its decision. It is well-known that the
selection of candidate does not clothe with him the right to public
employment [refer Sankarsan Dash (supra)]. Taking into consideration all
these facts and the circumstances, and the elaborate nature of analysis by the
learned Single Judge, who concluded that the decision of the AAI was not
arbitrary, this Court is of the opinion that the impugned judgment should not
be interfered with. The appeals are consequently dismissed.
S. RAVINDRA BHAT
(JUDGE)
DEEPA SHARMA
(JUDGE)
MARCH 31, 2016
LPA 168/2016 and connected cases Page 31
