Delhi High Court
Alok Kumar Sharma And Ors. vs National Council For Cooperative ... on 20 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.7289/2011 & conn. Matters
Reserved on: 9th March, 2017
% Pronounced on: 20th March, 2017
+ W.P.(C) No. 7289/2011
ALOK KUMAR SHARMA AND ORS. ..... Petitioners
Through: Mr. Monoj Ohri, Sr. Adv. with
Ms. Prabhsahay Kaur, Mr.
Abhimanyu Singh and Ms.
Shilpa Dewan, Advocates.
versus
NATIONAL COUNCIL FOR COOPERATIVE TRAINING (NCCT)
AND ANR. ..... Respondents
Through: Mr. J.K.Singh and Ms.
Madhulika Agarwal, Advocates
for R-1/NCCT.
Mr. Ripu Dhaman Bhardwaj,
CGSC with Mr. Sahaj Garg,
Advocate for R-2/UOI.
+ W.P.(C) No. 7568/2012
POOJA ARORA ..... Petitioner
Through: Mr. Sanjiv Bahl and Mr.
Eklavya Bahl, Advocates.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. Ripu Daman Bhardwaj,
CGSC and Mr. Sahaj Garg,
Advocate for R-1 & 3.
Mr. J.K.Singh and Ms.
Madhulika Agarwal, Advs. for
R-2,4 and 5.
+ W.P.(C) No. 7715/2012
W.P.(C) No.7289/2011 & conn. matters Page 1 of 36
S. HEROJIT SINGH ..... Petitioner
Through:
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. Ripu Daman Bhardwaj,
CGSC and Mr. Sahaj Garg,
Advocate for R-1 & 3.
Mr. J.K.Singh and Ms.
Madhulika Agarwal, Advs. for
R-2,4 and 5.
+ W.P.(C) No. 7716/2012
DR. PRANAB BAISHYA AND ORS. ..... Petitioners
Through: Mr. Arunabh Chowdhary, Mr.
Karma Dorjee, Mr. Vaibhav
Tomar and Ms. Shruti
Choudhary, Advocates.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. Ripu Daman Bhardwaj,
CGSC and Mr. Sahaj Garg,
Advocate for R-1 & 3.
Mr. J.K.Singh and Ms.
Madhulika Agarwal, Advs. for
R-2,4 and 5.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. This bunch of writ petitions are being decided by this
common judgment inasmuch as same issues arise for determination in
W.P.(C) No.7289/2011 & conn. matters Page 2 of 36
all these cases. Petitioners in all these cases were appointed as
Lecturers, and working as probationers, with National Council for
Cooperative Training (hereinafter referred to as „respondent
no.1/employer‟) when their services were terminated by the impugned
orders. For the sake of convenience, facts referred to in this judgment
are of W.P. (C) No.7289/2011. Impugned orders in the cases of all the
petitioners are more or less the same, and the impugned order in
W.P.(C) No.7289/2011 reads as under:-
"NCCT/2-7/Pers/2011 September 26, 2011
OFFICE ORDER
Department of Agriculture and Cooperation Ministry of Agriculture,
govt. of India, conducted an enquiry into the process of recruitment and
selection of the lecturers in NCCT, who had applied against the
advertisement in the Employment News appeared in 2-8 October, 2010
and the enquiry committee has found that this has been done in violation
of established procedure in this regard. Based on this DOAC has
directed NCCT to cancel the whole process of the recruitment of these
lecturers vide the letter No.A11011/5/2009-CET (Pt) Dated 29.07.2011.
Accordingly, your appointment as lecturer at ICM, Jaipur is hereby
cancelled with immediate effect.
You are directed to collect dues if any on account of salary, allowances
and any other benefits admissible to you as per rules.
This issues with the approval of the competent authority.
Sd/-
(Dr. Dinesh)
Director General
To:
Lecturer
Institute of Cooperative Management"
2. Petitioners were appointed as Lecturers with the
respondent no.1/employer pursuant to their selection in the interviews
conducted in terms of the advertisement dated 2.10.2010 issued in the
W.P.(C) No.7289/2011 & conn. matters Page 3 of 36
Employment News. Petitioners were given offers of appointments and
these appointments commenced with the petitioners starting as
probationary officers for a period of two years. There were certain
complaints (argued to be anonymous by the petitioners) with respect to
gross illegalities in the selection process of the Lecturers, and
consequently, a committee was appointed by the Department of
Agriculture and Co-operation (DAC) of the Ministry of Agriculture
vide its letter dated 16.5.2011 to conduct a detailed enquiry. The
enquiry committee members were Mr. A. Mazumdar, Joint Secretary,
Ministry of Agriculture, Department of Agriculture and Co-operation
(DAC), Mr. Sandeep Kumar, Under Secretary in the same Ministry and
Department and Mr. Ghanshyan Thakur, Under Secretary again in the
same Ministry and the Department. The enquiry team conducted a
detailed enquiry, examined all the papers and looked into the records
and gave its report which contained detailed findings and reasons. The
enquiry committee has concluded that the entire selection process is
vitiated, and therefore, should be cancelled. Hence the impugned
letters were issued to the petitioners cancelling their appointments with
the respondent no.1/employer during their probation periods.
3. The issue before this Court is whether the respondent
no.1/employer could have cancelled the entire selection process. The
W.P.(C) No.7289/2011 & conn. matters Page 4 of 36
related issue is that whether the selection process could have been
cancelled without the petitioners being heard i.e whether the
cancellation of the selection process was violative of the principles of
audi alteram partem. The crux of the matter is that whether the
selection process need not have been cancelled because, as argued by
the petitioners, there could have taken place separation of the untainted
candidates from the tainted ones.
4. Before discussing the Enquiry Report, let us examine as to
what is the law in regard to cancellation of the selection process as a
whole. Supreme Court in this regard has consistently held that if the
examination/recruitment process is so tainted that it would not be
possible to segregate the tainted from the untainted candidates, then the
entire selection process should be cancelled. It has also been held that
if the illegality committed goes to the root of the matter which vitiates
the entire selection process, then even in such a case the selection
process as a whole should be cancelled. Further, it has also been held
by the Supreme Court that before cancellation of the complete
selection/recruitment process, there must exist foundational facts.
Supreme Court has further held that if appointments are made in
violation of Articles 14 and 16 of the Constitution of India then such
appointments would be void and null, and that Article 311 of the
W.P.(C) No.7289/2011 & conn. matters Page 5 of 36
Constitution of India will not come into play in view of commission of
illegality in the selection process. Thus when candidates have been
appointed contrary to the applicable law and rules, and the entire event
has been investigated, then the entire selection process can be set aside
inasmuch as in such a case the system itself is found to be corrupt. The
judgment of the Supreme Court which requires to be referred to and
wherein the applicable principles with respect to en masse cancellation
of the selection process have been laid down, is the judgment in the
case of Inderpreet Singh Kahlon and Others Vs. State of Punjab and
Others (2006) 11 SCC 356. The relevant paras containing the ratio of
the Inderpreet Singh Kahlon's case (supra) have been consolidated by
the Supreme Court in its recent judgment in the case of Joginder Pal
and Others Vs. State of Punjab and Others (2014) 6 SCC 644. This is
done in paras 10 to 10.5 of Joginder Pal's case (supra) wherein the
principles laid down in Inderpreet Singh Kahlon's case (supra) have
been set down in a consolidated manner, and these paras read as
under:-
"10. From the reading of the judgment in Inderpreet Singh Kahlon
case, one can discern the following principles:
10.1 An appointment made in violation of Articles 14 and 16 of the
Constitution of India would be void. It would be a nullity. Since the
services of the Appellants were terminated not in terms of the Rules but
in view of the commission of illegality in the selection process involved,
the applicability of the relevant provisions of the statutes as also the
effect of the provisions of Article 311 of the Constitution need not be
considered.
W.P.(C) No.7289/2011 & conn. matters Page 6 of 36
10.2 Before a finding that an appointment has been made in violation
of Articles 14 and 16 of the Constitution can be arrived at, the appointing
authority must take into consideration the foundational facts. Only when
such foundational facts are established, can the legal principles be
applied. When the services of employees are terminated inter alia on the
ground that they might have aided and abetted corruption and, thus,
either for the sake of probity in governance or in public interest their
services should be terminated, the court must satisfy itself that conditions
therefore exist. The court while setting aside a selection may require the
State to establish that the process was so tainted that the entire selection
process is liable to be cancelled. In a case of this nature, thus, the
question which requires serious consideration is as to whether due to the
misdeed of some candidates, honest and meritorious candidates should
also suffer.
10.3 A distinction exists between a proven case of mass cheating for
a board examination and an unproven imputed charge of corruption
where the appointment of a civil servant is involved. Only in the event it
is found to be impossible or highly improbable that the tainted cases can
be separated from the non-tainted cases could en masse orders of
termination be issued. Both the State Government as also the High Court
in that view of the matter should have made all endeavours to segregate
the tainted from the non-tainted candidates.
10.4 Cases which may arise where the selection process is perceived
to be tainted may be categorised in the following manner:
(i) Cases where the "event" has been investigated.
(ii) Cases where CBI inquiry took place and was completed or a
preliminary investigation was concluded.
(iii) Cases where the selection was made but appointment was not
made.
(iv) Cases where the candidates were also ineligible and the
appointments were found to be contrary to law or rules.
If the services of appointees who had put in a few years of service were
terminated, compliance with three principles at the hands of the State
was imperative viz.: (1) to establish satisfaction in regard to the
sufficiency of the materials collected so as to enable the State to arrive at
its satisfaction that the selection process was tainted; (2) to determine the
question that the illegalities committed went to the root of the matter,
which vitiated the entire selection process. Such satisfaction as also the
sufficiency of materials were required to be gathered by reason of a
thorough investigation in a fair and transparent manner; (3) whether the
sufficient material present enabled the State to arrive at a satisfaction that
the officers in majority had been found to be part of the fraudulent
purpose or the system itself was corrupt.
10.5 Once the necessary factual findings as enumerated above are
arrived at, or it is found impossible or highly improbable to separate
tainted from untainted cases, all appointments traceable to the officers
concerned could be cancelled. But admittedly, in the present case,
although there had been serious imputations against Ravinderpal Singh
W.P.(C) No.7289/2011 & conn. matters Page 7 of 36
Sidhu being at the helm of the affairs of the State Public Service
Commission, all decisions made by the Commission during his tenure are
yet to be set aside." (underlining added)
5. Let us at this stage now refer to some of the relevant paras
of the Enquiry Report given in the present case and these paras read as
under:-
"1. Background:
The Department of Agriculture & Cooperation vide OM
No.A.11011/5/2009-CET (Pt.) dated 16th May, 2011 has ordered an
inquiry by a team of officers led by Shri A. Majumdar, Joint Secretary
and comprising of S/Shri Ghanshyam Thakur, Under Secretary (Coop)
and Sandeep Kumar, Under Secretary (Pers.) into the irregularities in the
appointment of lecturers in National Council for Cooperative Training
(NCCT).
The NCCT has its headquarters in New Delhi. It has 20 number of
institution located in various parts of the country for which lecturers
where recruited. Dr. Chadrapal Singh Yadav is the Chairman and Dr.
Dinesh is the Director General (DG) of NCCT. Dr. Yadav joined as
Chairman, NCCT w.e.f 18.3.2010 while Dr. Dinesh joined as DG, NCCT
w.e.f 18.4.2011 Dr. T. Paranjyothi, who is the Secretary of the NCCT
joined the post on 4.9.2006.
2. Inquiry:
The inquiry team conducted the inquiry w.e.f 26th May, 2011. The team
scrutinized the dossiers of the selected candidates. It also scrutinized
some applications of candidates who were shortlisted for interview but
were not finally selected and some applications of candidates who were
not shortlisted for interview. The team also examined all other relevant
records such as relevant notes on files of the NCCT, minutes of the
meetings of the screening committee, proceedings of the meetings of the
Standing Recruitment Committee (SRC), statement of award of marks to
the candidates etc. The team also held discussion with the DG, NCCT,
Secretary (NCCT) and other officials of NCCT and sought clarifications
on various aspects of the recruitment process. The team visited the
headquarters of the NCCT for this purpose.
Clarifications were also obtained verbally from Shri R.K. Singh, Chief
Director, Department of Agriculture & Cooperation (DAC), Government
of India and Shri Nitin V. Gadre, Director, Vaikunth Mehta National
Institute of Cooperative Management (VAMNICOM), Pune (over
telephone).
The different stages of the recruitment process for the post of lecturer in
NCCT were closely examined and the following facts were revealed
during the enquiry.
W.P.(C) No.7289/2011 & conn. matters Page 8 of 36
(a) Vacant Posts:
Approval of the Chairman, NCCT was obtained for filling up a
total of 40 posts of Lecturers (Gen-4, SC-12, ST-6, OBC-15 and
PH-3) on 30.08.2010.
The Chairman, NCCT accorded approval for advertisement of
the post of Lecturer as per draft advertisement on 30/8/2010.
The reservation roster register was checked and it appears that
the vacancies were determined as per the orders/guidelines
issued by the Department of Personnel & Training (DoPT). The
vacancies as indicated above were determined after taking into
account the backlog pertaining to SC, ST, OBC and PH which
had occurred since apparently the NCCT had not followed the
roster in the past.
(b) Advertisement:
The vacancies were advertised in the Employment News issue
dated 2-8 October 2010 (Annexure-I). Although the disciplines
(namely, Finance and Law, Cooperation, computer
(MIS)/Management were mentioned in the advertisement,
discipline wise break-up of the vacant posts again which
applications were invited was not indicated in the said
advertisement. The vacancies were not advertised in any
other newspaper.
The Essential Qualification for the post of lecturer as stated in
the said advertisement were: "Masters‟ degree in
Economics/Commerce/or any other relevant discipline required
for the post/MBA. Preference will be given to the candidates
having additional professional qualifications such as Higher
Diploma in Cooperative Management etc."
The Experience for the said post as stated in the said advertisement was:
"3 years Teaching Experience in a College/Cooperative Training
organization/Cooperative Department/Coop. Institute."
The Age for the said post was "35 years and below". No cut-off date for
determination of the age limit was indicated in the advertisement. The
said advertisement clearly stated that "the maximum age limit is
relaxable for SC/ST/OBC/PH as per GOI rules. Age is also relaxable in
case of all the posts for personnel work in NCUI Cooperative Education
Field Projects, Contractual employees and Lecturers working in NCCT
having requisite qualification and experience".
As per the said advertisement, applications were invited on plain
paper. No format of the application was prescribed in the said
advertisement.
As per the said advertisement, applicants were required to furnish
details such as name, post applied, date of birth, address,
qualification, experience and category (whether SC/ST, OBC &
PH), publication, nationality, languages known and other relevant
information. However, candidates were not required to submit
W.P.(C) No.7289/2011 & conn. matters Page 9 of 36
attested photocopies of their certificates. Further, they were not
required to paste their photograph on their application.
As per the said advertisement, applications were required to be
sent to the Secretary, NCCT within "30 days from the date of this
publication." However, a specific last date and time for receipt of
applications was not indicated in the said advertisement.
(c) Receipt of Application:
According to the Secretary, NCCT applications in response to the
said advertisement were placed before him and thereafter were
sent for diarizing and entry in a register opened for this purpose.
The institute fixed 1st November, 2010 as the last date for receipt
of application. However, details of applications received after
the said last date were not entered into the register opened for
receipt of applications.
(d) Constitution of Standing Recruitment Committee (SRC):
The Standing Recruitment Committee (SRC) of the NCCT was
constituted by the Chairman, NCCT vide Notification No.2-7/92-Pers
dated 11.01.2011 (Annexure-2). Approval for constitution of the said
committee was taken from Chairman, NCCT. The SRC consisted of the
Chairman, NCCT, Additional Secretary & Financial Adviser,
Department of Agriculture & Cooperation (DAC), Govt. of India (GOI),
Joint Secretary (C&C), DAC, GOI, Director, Vaikunth Mehta National
Institute of Cooperative Management (VAMNICOM), Pune, Prof. U.M.
Shah, Ex. Prof, VAMNICOM, Shri V.N. Rai, Ex. M.D, KRIBHCO and
Director General, NCCT.
(e) Scrutiny of Applications:
A screening committee was constituted by the Chairman, NCCT,
vide Notification 2-7/92 dated 08/12/2010 (Annexure-3) to
scrutinize the applications received for the post of lecturer. The
screening committee comprised of Chief Director (Cooperation),
Department of Agriculture & Cooperation, Govt. of India,
Secretary, NCCT and Registrar, VAMNICOM.
The Screening Committee met on 17.01.2011 and 15.02.2011.
The minutes of the Screening Committee are attached
(Annexure-4). The Registrar, VAMNICOM did not attend the
meetings of the screening committee.
At its meeting held on 17.01.2011, the Screening Committee
recommended a total of 138 candidates against different
categories to be eligible for appearing for interview before the
selection committee. The category wise break up of such
recommended candidates was: SC-36, ST-2, OBC-53, General-43
and PH-4.
Subsequently, at its meeting held on 15.02.2011, the Screening
Committee also recommended that one more candidate namely
Shri Mahesh Kumar Verma belonging to the SC Category be also
called for the interview before the selection Committee.
W.P.(C) No.7289/2011 & conn. matters Page 10 of 36
The Screening Committee, at its meeting held on 17.01.2011,
recommended relaxation of teaching experience from 03 years as
stipulated in the eligibility conditions to 01 year. Consequently,
02 candidates belonging to the ST category and 08 candidates
belonging to SC category who did not have 03 years teaching
experience as stipulated in the eligibility conditions were
recommended by the Screening Committee for the interview.
The Recommendations of the Screening Committee regarding
relaxation of the requirement of 03 years teaching experience and
of short listing the candidates for interview were accepted by the
Chairman, NCCT.
Further, file records (Annexure-5) indicate that Upper Age
relaxation was granted by the Chairman, NCCT on the
recommendations of the Joint Director, NCCT. Secretary, NCCT
& the DG NCCT in the following cases:
(a) 4 internal candidates belonging to General Category
on 08.02.2011.
(b) 4 internal candidates belonging to OBC category on
08.02.2011.
(c) 4 Ph. D. degree holders (General/OBC candidates) on
08.02.2011.
(d) 01 candidate belonging to OBC category on 18.02.2011.
Further, on 04.01.2011 the educational qualification in the case of
one OBC candidate was relaxed by the Chairman, NCCT on the
recommendations of Joint Director, NCCT, Secretary, NCCT and
the DG, NCCT.
(f) Interview:
The Standing Recruitment Committee (SRC) interviewed the candidates
who were shortlisted for interview on 21.02.2011, 22.02.2011&
26.02.2011. The meetings of the SRC on the 21st & 22nd February, 2011
were held in New Delhi, whereas, the meeting of the SRC on 26 th
February, 2011 was held at Hyderabad. The aforesaid meetings of the
SRC were chaired by Dr. C.P.S. Yadav, Chairman NCCT and were
attended by four other members namely, Shri V.N. Rai, Ex. MD,
KRIBHCO; Shri Nitin R. Gadre, Director, VAMNICOM; Prof. U.M.
Shah, Ex. Prof. VAMNICOM, Pune and Smt. Anita Manchanda, DG
NCCT, New Delhi (Member Convener). The Additional Secretary &
Financial Advisor and Joint Secretary (C&C), Department of
Agriculture and Cooperation, Government of India did not attend
the meetings. Shri R.K. Singh, Chief Director, Department of
Agriculture and Cooperation, Government of India, who is not a
member of the SRC, attended all the aforesaid meetings of the SRC.
Attendance Sheet duly signed by the members and their travel plans are
annexed (Annexure-6)
43 candidates were called for interview before the SRC on
21.02.2011 and 32 candidates appeared for the same.
W.P.(C) No.7289/2011 & conn. matters Page 11 of 36
44 candidates were called for interview before the SRC on
22.02.2011 and 37 candidates appeared for the same.
65candidates were called for interview before the SRC on
26.02.2011 and 50 candidates appeared.
Consolidated proceedings of the meetings of the SRC held on
21st, 22nd & 26th February, 2011 (Annexure - 7) were prepared
and signed by the above mentioned members of the SRC who
attended the meetings. The consolidated proceedings of the SRC
were signed by a non member namely Shri R.K. Singh who also
attended the aforesaid meetings of the SRC.
The proceedings of the SRC referred to above were undated.
xxxxx
xxxxx
3. Irregularities
The inquiry revealed that a large number of irregularities were
committed during the recruitment process. Some of the irregularities that
were noticed during the enquiry are highlighted below:
(a) As per Rule 3.5 of Service, Recruitment & Promotion Rules
of the NCCT, approval of the Council is required for relaxing the
eligibility requirement of minimum teaching experience of three
years. However, in the instant case, such relaxation was granted by
the Chairman, NCCT as mentioned above.
(b) The advertisement for recruitment of lecturer did not
require candidates to submit applications with photographs pasted
thereon. This is a very serious lapse. All recruitment/selection bodies
in the country such as the UPSC, Staff Selection Commission, Railway
Recruitment Boards etc. require applicants to submit attested
photographs pasted on their applications and applications not confirming
to this requirement are summarily rejected. Applications with attested
photographs pasted thereon are insisted upon in order to prevent
impersonation at any stage of the recruitment process.
(c) Examination of the dossiers of the selected candidates revealed
that 24 no. of applications of the selected candidates were without
photographs. Details of such candidates are furnished at Annexure-10.
Since these applicants had not affixed their photographs on their
applications, the possibility of someone impersonating on their behalf at
any stage (particularly during the interview) cannot be ruled out. As
such, one cannot also be certain as to whether the candidate who has
actually joined the post was the same person as the one who had
appeared for the interview before the selection committee.
(d) A cut off date for determination of the age limit was not
indicated in the advertisement.
(e) A proper system for receiving the applications from the
candidates was not devised by the NCCT. A separate counter was not
opened to receive applications from those applicants who desired to
submit the same in person, nor was a separate sealed box kept in the
W.P.(C) No.7289/2011 & conn. matters Page 12 of 36
headquarters of the NCCT where applicants could drop their
applications. A running identification number was not affixed on the
applications as and when they were received. The covering envelopes of
applications received were not retained. As such, the dates on which
they were actually received could not be verified.
(f) Details of applications received after the last date was not
entered into the register opened for receipt of applications.
(g) Examination of the dossiers of the candidates who were finally
selected was made during the inquiry and the statement in Annexure-11
gives some details of the shortcomings noticed in their applications. The
following irregularities in the applications of the finally selected
candidates were noticed:
(i) Copies of the certificates of Date of Birth, Caste/Tribe
(wherever relevant), educational qualification, teaching experience,
physical handicap (wherever relevant) were not available in respect of
a number of candidates who were finally selected. The details of such
candidates are available in the statement in Annexure-12.
(ii) Many of the selected candidates do not satisfy the eligibility
requirements for the post of lecturer as laid down in the advertisement.
Moreover, in some cases the experience or educational qualification as
stated by the candidate is not relevant to the eligibility requirements.
Further, some candidates have produced certificates of experience
which are at variance from their teaching experience as claimed by
them in their application. Some of the shortcomings noticed in this
regard, is indicated in the statement at Annexure-11. Some glaring
irregularities noticed are highlighted below:
Ms. Mini Mohan K. was shortlisted for the interview and
eventually selected even though she did not submit certificate of
educational qualification, date of birth, teaching experience and caste.
Her application does not have a photograph.
Shr. R. Pandian (Date of Birth : 14.9.66) was selected against
the Physically Handicapped (PH) category quota even though he did
not claim PH status in his application form. He is clearly over aged
even if he is allowed age relaxation for five years as a departmental
candidate and for three years as an OBC candidate. Moreover, he has
not submitted copies of Physically Handicapped Certificate, Birth
Certificate and Caste Certificate alongwith his application. Further,
his application is without a photograph.
Shri R.P. Karodiya has, his application, claimed teaching
experience of more than 10 years. However, the copy of the
experience certificate from Mandwa College, Mandwa dtd. 18.2.2011
submitted by him states that he has worked as Sahayak Kendra
Adhikshak/Ati Kendra Adhikshak in examinations conducted by the
Rajasthan University from 2002-10. This is not a certificate of
teaching experience. Moreover, since this certificate is dated
18.02.2011, it could not have been attached with his application.
W.P.(C) No.7289/2011 & conn. matters Page 13 of 36
Shri Upnish Yadav, an applicant with a M.Sc degree in
Chemistry, has stated that he has seven and a half years experience as
a Project Officer in NCUI Coop Education Field Project. This is not
an experience of teaching. His application is without a photograph.
Shri S. Khongsai (D.O.B: 01.3.80), has in his application
(without photograph) claimed that he had served in Don Bosco
College, Maram, Imphal First as a tutor during 1995-96 and thereafter
as a lecturer in 1996-97. However, he has attached a copy of a
certificate from Don Bosco College to the effect that he has worked as
a lecturer in the said college in the year 2007-08 (Exact dates not
mentioned). The difference in the dates of experience is glaring.
Ms. Julufa Islam Chaoudhary has, in her application claimed
that she had served as a lecturer in Lloyd College, Noida without
giving any dates of such experience. But the copy of the experience
certificate available in her dossier shows that she has worked as
lecturer w.e.f. 01.07.09 to 01.07.10 in Assam Valley International,
Dispur. There is clearly a mismatch between her claim of teaching
experience and the copy of the experience certificate submitted by her.
She has also not submitted a copy of her Date of Birth certificate and
her application is without a photograph.
(h) The screening committee had shortlisted number of candidates
for the interview who had not submitted copies of their certificates.
However, the said Screening Committee did not extend the same
consideration to many other candidates whose applications are
rejected for want of requisite certificates.
(i) The original certificates of the candidates who appeared for the
interview do not appear to have been verified. No record was available
to indicate that such an exercise was carried out and if so by whom.
(j) Attendance sheet of candidates who appeared for the
interview bearing their signatures/initials is not available in the
records.
(k) The statement of marks awarded by the members of the
SRC should have been prepared & signed by the members who were
present immediately after the conclusion of the interview on each
day and thereafter kept in a sealed cover. A consolidated statement of
marks awarded to the candidates should have been prepared at the end of
the third meeting of the SRC on 26.02.2011 and signed by the members
of the SRC present in the meetings. However, the records show that
although a consolidated statement of marks awarded to the
candidates was prepared, the same was not signed by members of
the SRC who were present in the meetings of the SRC. Further, Shri
R.K. Singh, Chief Director (Coopn), Department of Agriculture and
Cooperation, who is not a member of the SRC, attended the
aforesaid meetings of the SRC for interviewing the candidates.
From the above facts, it is clear that the manner in which the members of
the SRC selected the candidates who appeared before them for interview
W.P.(C) No.7289/2011 & conn. matters Page 14 of 36
at its meetings held on 21st, 22nd and 26th February, 2011 was irregular
and contrary to the procedure established in this regard.
(l) Despite receiving a letter the Department of Agriculture &
Cooperation (DAC), Govt. of India advising NCCT not to go ahead with
the recruitment at 14:39 hours on 14th March, 2011, DG, NCCT
dispatched the offer of appointment to the selected candidates by speed
post from 19:55 hours onwards on the evening of the same day. This
was a blatant defiance of the directions of the Govt. of India.
(m) 32 out of the 36 the selected candidates were allowed to join the
institutions to which they had been appointed as lecturer in spite of the
instructions of the DAC asking NCCT not to go ahead with the
recruitment.
(n) The original certificates of the selected candidates do not appear
to have not been verified by the Heads of the institutions concerned
before allowing the candidates to join their posts. No record was made
available to the enquiry team from which it can be ascertained that this
was done. Moreover, this exercise could not have been actually carried
out by the concerned heads of institutions since the dossiers of the
selected candidates or copies thereof were not provided to the institutions
concerned by the NCCT headquarters. Also, the very fact that the
NCCT, vide their letter dated 29th April, 2001 had written to various
Universities and educational institutions seeking verification of the
certificates submitted by the candidates clearly indicates that verification
of the original certificates of the selected candidates had not been done
before allowing them to join their posts.
(o) There are no records to show that all the selected candidates had
been medically examined and were found to be medically fit by an
authorized medical authority before they were allowed to join their posts.
(p) There are no records to show that verification of character and
antecedents of the selected candidates had been done before they were
allowed to join their posts.
4. Observations/Findings:
(a) The entire recruitment process has been conducted in a
highly irregular, faulty and arbitrary manner in gross violation of
the established procedure for recruitment of candidates. Starting
from the stage of issue of advertisement in the Employment News to the
actual selection of candidates and to their joining the posts, a number of
irregularities have been committed by those officials involved in the
recruitment process. The specific natures of irregularities have been
highlighted in Para-3 above and needs no repetition. The serious nature
of irregularities shows that the entire recruitment process has been
vitiated. It is obvious that there has been a serious lapse on the part of
the officials concerned.
(b) It is clear that the members of the screening committee did not
exhibit due diligence while scrutinizing the applications received. They
have also acted in a highly arbitrary manner by rejecting applications of
some candidates who had not submitted copies of the requisite
certificates along with their applications while at the same time short
W.P.(C) No.7289/2011 & conn. matters Page 15 of 36
listing many candidates who had not submitted copies of the requisite
certificates along with their applications for the interview. Many of these
shortlisted candidates were also eventually selected. This clearly appears
to be an act of criminal negligence with a mala fide intent on the part of
the officials concerned.
(c) Dr. T. Paranjyothi, the Secretary, NCCT and Shri R.K. Singh,
Chief Director (Cooperation), Department of Agriculture & Cooperation
as members of the Screening Committee are primarily responsible for the
irregularities committed during the process of screening of applications
received for the post of lecturer in NCCT. The officials who assisted
them in the process of screening of the applications are also responsible
for the irregularities committed.
(d) Dr. C.P.S. Yadav, Chairman, NCCT and Ms. Anita Manchanda,
the then Director General NCCT should take over all responsibility for
the lapses in the recruitment process since the recruitment process was
conducted under their overall superintendence, control and guidance.
(e) The Recruitment Rules for the post of lecturer appear to be
defective. The educational qualifications prescribed in the recruitment
rules are vague and not specific. No cut off percentage of marks is
prescribed in the essential educational qualification with the result that
even candidates with poor academic record can be appointed as a
lecturer. There is no requirement in the recruitment rules to the effect
that the prescribed educational qualification and teaching experience
should be obtained from a recognized University/Institution. This has
considerably diluted the quality of candidates eventually selected for the
post of lecturer." (emphasis is mine)
6. In view of the aforesaid detailed findings and conclusions
of the enquiry team the following recommendations were made:-
"Recommendations:
(a) In view of the extremely serious nature of the irregularities
detected in the recruitment process for the post of lecturer in the
NCCT, the sanctity of the entire recruitment process has been lost.
It is therefore recommended that the recruitment process for the
post of lecturer be scrapped and the appointment of the selected
candidates be cancelled.
(b) The irregularities that have been detected by this enquiry reveal,
prima facie, criminal negligence and mala fide intent on the part of the
members of the screening committee and some other officials of the
NCCT. The full extent of involvement of other officials of the NCCT or
of any other person(s) in the irregularities committed during the
recruitment process could not be ascertained during this inquiry.
Moreover, the original certificates were not verified during this enquiry
to ascertain their genuineness. Keeping in view the extremely serious
W.P.(C) No.7289/2011 & conn. matters Page 16 of 36
nature of irregularities that have been brought out during this enquiry, it
is felt that a detailed investigation into the entire process for recruitment
of lecturers needs to be conducted. It is therefore recommended that the
entire matter pertaining to the recruitment of lecturers in NCCT be
entrusted to an investigating agency having powers under the law to
record evidence, summon witnesses etc.
(c) In order to prevent occurrence of such irregularities in future,
recruitments in the NCCT and similar autonomous bodies in the
cooperation sector may be entrusted to a standing recruitment
committee/board constituted for this purpose by the Govt. of India,
Department of Agriculture & Cooperation (DAC). Persons having
experience in conducting recruitments in the UPSC, SSC etc. could be
associated with such a committee/board.
(d) The recruitment process for a reasonably large number of posts
(as in the present case) should invariably consist of a written test to be
followed by an interview of the candidates who qualify in the written test.
The final selection of candidates should be based on the total of marks
obtained by them in the written test as well as the interview.
(e) The recruitment rules for the post of lecturer need revision. The
recruitment rules should clearly specify that the educational and teaching
experience qualifications should be obtained from a recognized
educational institution. The requirement of teaching experience could be
dispensed with. Since the curriculum of the programmes conducted by
the institutions under the NCCT comprise of different disciplines of
Management studies (such as marketing, Organizational behavior,
Human Resource management, Finance etc.), Economics, Commerce and
Cooperation, only candidates having a Masters degree in these subjects
could be considered for appointment to the post of lecturer in the NCCT.
This could be stated specifically in the eligibility conditions in the
recruitment rules. The eligibility conditions specified in the recruitment
rules should also clearly indicate a specific cutoff percentage of marks in
the Master degree in these subjects. Further, qualification in the National
Eligibility Test (NET) could be considered in lieu of teaching experience.
*****
sd/- sd/-
(Sandeep Kumar) (Ghanshyam Thakur)
Under Secretary, Government of India Under Secretary, Government of India
Ministry of Agriculture Ministry of Agrigulcure
(Dept. of Agriculture & Cooperation) (Dept. of Agriculture & Cooperation)
sd/-
(A. Majumdar)
Joint Secretary, Government of India
Ministry of Agriculture
(Dept. of Agriculture & Cooperation)
(emphasis is mine)"
7. (i) At this stage itself, it is required to be observed that there
is no need of following the principles of natural justice by giving
notice to each particular candidate when the entire selection process is
validly cancelled i.e there is no requirement of complying with the
principles of audi alteram partem by giving show-cause notices to
each individual candidate whose appointment is cancelled in view of
the en masse cancellations. This has been held by the Supreme Court
in the case of Union of India and Others Vs. O. Chakradhar (2002) 3
SCC 146. The relevant para of this judgment is para 8 and this para 8
reads as under:-
"8. In our view the nature and the 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 future course
of action to be adopted in the matter. 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. The only way out would be to cancel the whole selection.
Motive behind the irregularities committed also has its relevance."
(ii) Reliance placed on behalf of some of the petitioners to the
judgment of the Supreme Court in the case of Onkar Lal Bajaj and
Others Vs. Union of India and Another (2003) 2 SCC 673 to argue
that principles of natural justice should have been complied with is
misconceived inasmuch as in the case of Onkar Lal Bajaj (supra) no
ratio is laid down that even if foundational facts exist for cancellation
of the entire selection process, yet show-cause notice must be issued to
each and every candidate before cancellation of appointments. In the
case of Onkar Lal Bajaj (supra) Supreme Court has clearly observed
that authorities in that case did not have with it the necessary data to
consider the aspect of en bloc cancellation and controversy in that case
pertained only to a few cases.
(iii) For the reasons already given above similarly the judgment cited
on behalf of the petitioners in the case of Mahipal Singh Tomar Vs.
State of Uttar Pradesh and Others (2013) 16 SCC 771 will not apply
inasmuch as what will apply is the ratio of the judgment of the
Supreme Court in the case of O. Chakradhar (supra) that there is no
need of individual notices to individual persons once the entire
selection process is scrapped on account of widespread and all
persuasive irregularities and illegalities affecting the results.
8. A reading of the aforesaid paras of the Enquiry Report
shows that foundational facts existed for the respondent no.1/employer
to hold that the entire selection process was vitiated and that therefore,
the selection process in the opinion of this Court was rightly cancelled.
9. The following salient conclusions are drawn by the
Enquiry Report, and which in the opinion of this Court have rightly
resulted in the recommendation and hence the cancellation of the entire
selection process:-
(i) The candidates were not required to paste their photographs on
the applications and resultantly there arises the issue of impersonation
of the candidates in the selection process. This fundamental flaw is
such that there cannot be segregation of the tainted and untainted
candidates.
(ii) Though last date of 1.11.2010 was fixed for receipt of the
applications, yet no record was maintained as to when the applications
were received with their serial numbers. Details of applications
received after the last date were not entered into the register opened for
receipt of the applications. Therefore, in the present case there cannot
take place segregation of applications of the candidates which were
received before the cut-off date and after the cut-off date, and
resultantly it cannot be known that the candidates who ultimately were
selected had in fact applied before the cut-off date or after the cut-off
date.
(iii) The two members of the Standing Recruitment Committee
(SRC) being the Additional Secretary and Financial Advisor and the
Joint Secretary, C&C, DAC did not attend the selection meetings. The
Coram of the SRC was therefore incomplete, and consequently, the
entire selection process is vitiated on account of non-joining in the
selection process of two essential members of the SRC.
(iv) Not only two members of the SRC did not attend the selection
committee meetings but one person Sh. R.K. Singh who was the Chief
Director of DAC, but who was not the member of the SRC, however
attended all the meetings of the SRC and acted effectively as a member
of the SRC although he was not the member of the SRC. The entire
selection process is therefore vitiated on account of inclusion of a
person in the selection committee who was not a member of the
selection committee/SRC.
(v) Service Rule 3.5 of the respondent no.1/employer required that
if there has to take place relaxation in the eligibility criteria of
minimum experience of three years, that relaxation can only be given
in terms of the decision of the Council of the respondent
no.1/employer, however, no such decision of the Council existed for
giving of the relaxation of the minimum required experience of three
years in teaching. In spite of there being no valid decision of the
Council of the respondent no.1/employer, yet, relaxations were given
and candidates were selected/appointed by giving relaxations. The
decision to give relaxation by the SRC was taken after the
advertisement was issued and thus various candidates would not have
applied who did not know that relaxation will be given and were thus
illegally left out of the selection process.
(vi) The Screening Committee adopted an arbitrary and pick and
choose policy of rejecting some candidates who had not submitted
copies of their certificates but extended such benefit to other
candidates who also had not submitted copies of their certificates.
Therefore, various candidates have been arbitrarily left out and which
vitiates the entire selection process.
(vii) In addition to the fact that photographs of the candidates were
not pasted on the application forms, the attendance sheet of candidates
who appeared in the interview does not contain the signatures and
initials of the candidates. Once again, therefore, the entire selection
process is vitiated as the chance of impersonation of candidates cannot
be ruled out.
(viii) The statement of marks awarded by the members of the SRC
were not prepared immediately after conclusion of the interviews on
each day and kept in a sealed cover. No doubt, thereafter a
consolidated statement of marks awarded was prepared but the same
was not signed by the members of the SRC who were present in the
meeting of the SRC with the fact that Sh. R.K. Singh who was not the
member of the SRC attended the meetings of the SRC for interviewing
the candidates. Clearly, therefore, there was complete irregularity and
violation of the procedure for selection of the candidates by the SRC.
(ix) There was no advertisement issued in newspaper so that large
number of candidates could apply for the posts, and which would result
in a healthy competition, and instead advertisement was only issued in
the Employment News.
10. In the opinion of this Court, the aforesaid conclusions of
the enquiry committee are such that the entire selection process is
vitiated and it is not possible to segregate the tainted from the untainted
candidates. No doubt, in the Enquiry Report there are observations
with regard to separation of tainted and untainted candidates on some
specific subjects/aspects, however, on the other aspects as have been
given in the preceding paras, and which vitiate the entire selection
process, there cannot take place segregation of the tainted from the
untainted candidates. In fact, an extremely important aspect in this
case for rightly cancelling the entire selection process is that in the
present case it is not that only the candidates have cheated but the fact
of the matter is that there would be besides cheating of the candidates
also the collusion of the successful candidates with the members of the
SRC. The subject selection process is a classic case which requires en
masse cancellation of the selected candidates as not only candidates
were tainted but the selection process adopted by the SRC was tainted
and that too in collusion with the candidates. In my opinion therefore,
foundational facts existed for the authorities to arrive at a decision for
cancellation of the entire selection process.
11. I would like to note that in addition to the aforesaid
conclusions given by the Enquiry Report for recommending
cancellation of the entire selection process, there are two additional
reasons which show that the entire selection process is tainted and
therefore should be cancelled.
12. The first reason is that it is seen that the recruitment rules
do not provide what should be the prescribed procedure for selection to
the post of Lecturer. It is not provided whether selection of Lecturers
has to be by written test plus interviews or only by written test with
nominal marks in the interview or the selection can be wholly by
interviews only. This aspect is indeed very important because the facts
of the present case show that the SRC has not relied upon any policy of
the respondent no.1/employer which provides how the weightage is to
be given under different headings to the candidates who appear in the
interviews. Once therefore there is lack of specific recruitment rules as
to the method of recruitment of Lecturers in different colleges of the
respondent no.1/employer, with the fact that there is no stated policy
which existed prior to commencement of the selection process as to
giving of weightage to the candidates in the interview process, such
irregularities go to the root of the matter whereby the entire selection
process is vitiated and illegal as the selection process is hit by Article
14 of the Constitution of India.
13. The second reason which results in vitiation of the entire
selection process does find a passing mention in the enquiry committee
report, but this reason is a substantial reason, and which is that
advertisement was only issued in the Employment News and there
were no advertisements in the newspapers. This has resulted in a very
limited set of people appearing in the selection process. Supreme Court
has frowned upon this method of selection and has held that it is not
enough that advertisement is issued only in the Employment News.
This is so held by the Supreme Court in its judgment in the case of
State of Orissa and Another Vs. Mamata Mohanty, (2011) 3 SCC
436. Paras 35 and 36 of this judgment which lay down this ratio read
as under:-
Appointment/employment without advertisement
"35. At one time this Court had been of the view that calling the names
from Employment Exchange would curb to certain extent the menace of
nepotism and corruption in public employment. But, later on, it came to the
conclusion that some appropriate method consistent with the requirements
of Article 16 should be followed. In other words there must be a notice
published in the appropriate manner calling for applications and all those
who apply in response thereto should be considered fairly. Even if the
names of candidates are requisitioned from Employment Exchange, in
addition thereto it is mandatory on the part of the employer to invite
applications from all eligible candidates from the open market by
advertising the vacancies in newspapers having wide circulation or by
announcement in Radio and Television as merely calling the names from the
Employment Exchange does not meet the requirement of the said Article of
the Constitution. (Vide: Delhi Development Horticulture Employees'
Union v. Delhi Admn., State of Haryana v. Piara Singh, Excise Suptd.
v. K.B.N. Visweshwara Rao, Arun Tewari v. Zila Mansavi Shikshak Sangh,
Binod Kumar Gupta v.Ram Ashray Mahoto, National Fertilizers Ltd. v.
Somvir Singh, Telecom District Manager v. Keshab Deb, State of
Bihar v. Upendra Narayan Singh & State of Madhya Pradesh v. Mohd.
Abrahim.)
36. Therefore, it is a settled legal proposition that no person can be
appointed even on a temporary or ad hoc basis without inviting applications
from all eligible candidates. If any appointment is made by merely inviting
names from the Employment Exchange or putting a note on the Notice
Board, etc. that will not meet the requirement of Articles14 and 16 of the
Constitution. Such a course violates the mandates of Articles 14 and 16 of
the Constitution of India as it deprives the candidates who are eligible for
the post, from being considered. A person employed in violation of these
provisions is not entitled to any relief including salary. For a valid and legal
appointment mandatory compliance of the said Constitutional requirement is
to be fulfilled. The equality clause enshrined in Article 16 requires that
every such appointment be made by an open advertisement as to enable all
eligible persons to compete on merit." (underlining added)
14. The judgment in the case of Mamata Mohanty (supra) is
also relevant so far as the issue/subject of relaxation which was given
by the SRC in the present case. Though the relaxation given is illegal
in the absence of there existing the requisite decision of the Council of
the respondent no.1/employer as per Rule 3.5, yet even assuming that
relaxation has been given by the Council, such relaxation given should
have been applied in a transparent manner by specifically including
this aspect in the advertisement issued for the posts. If in the
advertisement issued it was specified that relaxation could be given,
then, many more candidates would have applied for selection. The only
relaxation provided in the advertisement was for age, but there was no
relaxation prescribed with respect to the teaching experience criteria
and which as per the advertisement was required to be three years
teaching experience and which was reduced to one year by the SRC.
The following paras of the judgment in the case of Mamata Mohanty
(supra) squarely deal with the aspect for holding such selection
process to be illegal are paras 42 to 51 and which paras read as under:-
"RELAXATION:
42. In J.P. Kulshrestha (Dr.) v. Allahabad University issue of
relaxation of eligibility came for consideration before this Court wherein it
was held as under:
"15. ...We regretfully but respectfully disagree with the Division Bench
and uphold the sense of high second class attributed by the learned single
Judge. The midline takes us to 54% and although it is unpalatable to be
mechanical and mathematical, we have to hold that those who have not
secured above 54% marks cannot claim to have obtained a high second
class and are ineligible.
16. ... We have earlier held that the power to relax, as the Ordinance
now runs, in so far as high second class is concerned, does not exist.
Inevitably, the appointments of the 3 respondents violate the Ordinance
and are, therefore, illegal."
(emphasis added)
43. In Rekha Chaturvedi v. University of Rajasthan, this Court again
dealt with the power of relaxation of minimum qualifications as the statutory
provisions applicable therein provided for relaxation, but to what extent and
under what circumstances, such power could be exercised was not provided
therein. Thus, this Court issued the following directions:
"A. The University must note that the qualifications it advertises for the
posts should not be at variance with those prescribed by its
Ordinance/Statutes.
B. The candidates selected must be qualified as on the last date for
making applications for the posts in question or on the date to be
specifically mentioned in the advertisement/notification for the purpose.
C. When the University or its Selection Committee relaxes the minimum
required qualifications, unless it is specifically stated in the
advertisement/notification both that the qualifications will be relaxed and
also the conditions on which they will be relaxed, the relaxation will be
illegal.
D. The University/Selection Committee must mention in its proceedings
of selection the reasons for making relaxations, if any, in respect of each
of the candidates in whose favour relaxation is made.
E. The minutes of the meetings of the Selection Committee should be
preserved for a sufficiently long time, and if the selection process is
challenged until the challenge is finally disposed of. An adverse
inference is liable to be drawn if the minutes are destroyed or a plea is
taken that they are not available." (emphasis added)
44. In P.K. Ramachandra Iyer v. Union of India, this Court while
dealing with the same issue, held that once it is established that there is no
power to relax the essential qualifications, the entire process of selection of
the candidate was in contravention of the established norms prescribed by
advertisement. The power to relax must be clearly spelt out and cannot
otherwise be exercised.
45. In A.P. Public Service Commission v. B. Swapna, this Court held
that:
"15. Another aspect which this Court has highlighted is scope for
relaxation of norms.... Once it is most satisfactorily established that the
Selection Committee did not have the power to relax essential
qualification, the entire process of selection so far as the selected
candidate is concerned gets vitiated." (emphasis supplied)
46. This Court in Kendriya Vidyalaya Sangathan v. Sajal Kumar Roy,
held:
"11. ...The appointing authorities are required to apply their mind while
exercising their discretionary jurisdiction to relax the age-limits.... The
requirements to comply with the rules, it is trite, were required to be
complied with fairly and reasonably. They were bound by the rules. The
discretionary jurisdiction could be exercised for relaxation of age
provided for in the rules and within the four corners thereof."
(emphasis added)
47. In Food Coop. of India v. Bhanu Lodh, this Court held:
"12. ...Even assuming that there is a power of relaxation under the
Regulations.... the power of relaxation cannot be exercised in such a
manner that it completely distorts the Regulations. The power of
relaxation is intended to be used in marginal cases.... We do not think
that they are intended as an „open sesame‟ for all and sundry. The
wholesale go-by given to the Regulations, and the manner in which the
recruitment process was being done, was very much reviewable as a
policy directive, in exercise of the power of the Central Government
under Section 6(2) of the Act."
48. In Bhanu Prasad Panda (Dr.) v. Sambalpur University, one of the
questions raised has been as to whether a person not possessing the required
eligibility of qualification i.e. 55% marks in Master's degree can be
appointed in view of the fact that the UGC refused to grant relaxation. On
the issue of relaxation of eligibility, the Court held as under:
"5. ....the essential requirement of academic qualification of a
particular standard and grade viz. 55%, in the „relevant subject‟ for which
the post is advertised, cannot be rendered redundant or violated.... The
rejection by UGC of the request of the Department in this case to relax
the condition relating to 55% marks at post-graduation level...is to be the
last word on the claim of the Appellant and there could be no further
controversy raised in this regard." (emphasis added)
49. In view of the above, this Court held that the appointment of the
Appellant therein has rightly been quashed as he did not possess the
requisite eligibility of 55% marks in Master's course.
50. In absence of an enabling provision for grant of relaxation, no
relaxation can be made. Even if such a power is provided under the Statute,
it cannot be exercised arbitrarily. (See: Union of India v. Dharam Pal). Such
a power cannot be exercised treating it to be an implied, incidental or
necessary power for execution of the statutory provisions. Even an implied
power is to be exercised with care and caution with reasonable means to
remove the obstructions or overcome the resistance in enforcing the
statutory provisions or executing its command. Incidental and ancillary
powers cannot be used in utter disregard of the object of the Statute. Such
power can be exercised only to make such legislation effective so that the
ultimate power will not become illusory, which otherwise would be contrary
to the intent of the legislature. (Vide: Matajog Dobey v. H.S. Bhari and State
of Karnataka v. Vishwabharathi House Building Coop. Society).
51. More so, relaxation in this manner is tantamount to changing the
selection criteria after initiation of selection process, which is not
permissible at all. Rules of the game cannot be changed after the game is
over. (Vide K. Manjusree v. State of A.P. and Ramesh Kumar v. High Court
of Delhi)." (underlining added)
15. Therefore, in view of the fact that there was no relaxation
prescribed with respect to teaching experience in the advertisement
issued for the subject selection process, no valid reasons exist for
giving relaxation (one such important aspect was if there was lack of
suitable number of candidates and which could not be the position in
the present case because of lack of widespread advertisement for
appointment to the post), the selection committee did not have power
to relax the norms which could have only be relaxed by the Council of
the respondent no.1/employer as per Rule 3.5, therefore, the selection
process as a whole is vitiated and has been rightly recommended for
being quashed by the enquiry committee, and the appointments were
hence cancelled of the petitioners by the respondent no.1/employer.
16. In view of the above said discussion I cannot agree with
the argument urged on behalf of the petitioners that in the present case
there can be segregation of tainted and untainted candidates and hence
petitioners being non tainted candidates their appointments be not
cancelled. Ofcourse I am presuming petitioners are untainted
candidates because there is lack of pleadings and substantiation as to
how each of the petitioners are untainted, including that whether
petitioners had pasted photos on their applications, petitioners whether
had infact attended the interviews, petitioners whether have given
attested copies of their certificates and got the originals verified etc etc.
This issue of whether the petitioners are or are not untainted candidates
is left open as it is found in this case that the selection process is
tainted in a widespread manner with illegalities existing which go to
the root of the matter and thus the selection process was rightly
cancelled. As already discussed in detailed above, the entire process of
selection is fundamentally vitiated, illegal, arbitrary and in fact a
dishonest collusive action. Further as already stated above, the
selection process in the present case is not only with respect to lack of
scruples in the selection of the selected candidates/petitioners but in
fact there is found to exist an unholy alliance/collusion between the
petitioners/selected candidates and the SRC of the respondent
no.1/employer. Accordingly, the authorities were justified in cancelling
the entire selection process and it is not permissible for the petitioners
to argue that present is a case wherein there can be separation of
tainted and untainted candidates.
17. On behalf of the petitioners in W.P.(C) No. 7289/2011,
the following judgments were relied upon in support of the arguments
for not cancelling the selection process:-
(i) Union of India and Others Vs. Rajesh P.U., Puthuvalnikathu
and Another (2003) 7 SCC 285 (para 6)
(ii) Dolly Chhanda Vs.Chairman, JEE and Others (2005) 9 SCC
779 (para 7)
(iii) V. Lavanya and Others Vs. State of Tamil Nadu Represented
by its Principal Secretary and Others (2017) 1 SCC 322 (para
30 to 36)
18. The judgment cited on behalf of the petitioners in the case
of Rajesh P.U (supra) only lays down that Courts should not apply
rigid and arbitrary standard to cancel the entirety of selection when no
infirmity is found with respect to most of the candidates. In Rajesh
P.U's case (supra) there were 134 successful as well as 184
unsuccessful candidates, of which 31 candidates though declared
successful were not really entitled to be declared successful and
selected for appointment. Therefore, the judgment in Rajesh P.U's
case (supra) cannot help the petitioners once in the facts of the present
case foundational facts exist to show that the entire selection process
was vitiated by means of irregularities which went to the root of the
matter.
19. The judgment relied upon by the petitioners in the case of
Dolly Chhanda (supra) only lays down that depending on the facts of
the case there can be some relaxation in the matter of submission of
proof and it would not be appropriate to apply any rigid principle in the
domain of procedure. However, Dolly Chhanda's case (supra) was
not a case of cancellation of the entire selection process on account of
irregularities affecting the entire selection process wherein it was not
possible to segregate the tainted and untainted candidates. Petitioners
therefore cannot take any benefit of the judgment in Dolly Chhanda's
case (supra).
20. The judgment in the case of V. Lavanya (supra) is relied
upon to argue that benefit of relaxation of 5% marks can be given to
the reserved category candidates, and with respect to which proposition
there is no dispute, because that aspect is covered by circulates,
however, the issue in the present case is that not only the entire
selection process stood vitiated on account of gross illegalities and
irregularities but also that the selection criteria was changed midway in
the selection process and thereby unfairly prejudicing and leaving out
those candidates who would otherwise have applied if such left out
persons would have known that there could have been relaxation of the
required norm of three years of teaching experience. The judgment in
the case of Mamata Mohanty (supra) referred to hereinabove makes it
clear by reference to various other judgments of the Supreme Court
that the selection criteria cannot be changed during the selection
process. In any case, it is seen that in the present case the relaxation of
the selection criteria of three years teaching experience has been done
without the requisite approval of the Council of the respondent
no.1/employer and which is mandated as per Rule 3.5, with the fact
that there was no declared policy of the respondent no.1/employer
existing at the commencement of the selection process as to how the
candidates have to be given weightage in the interviews and how the
candidates would be selected in terms of the said policy.
21.(i) Finally, it was argued on behalf of some of the petitioners
that since petitioners have worked for substantial amount of time of
around two years as probationers, therefore, their appointments be not
cancelled.
(ii) To this argument urged on behalf of some of the petitioners, a
complete answer is found in the judgment of the Supreme Court in the
case of Hitendra Singh S/o Bhupendra Singh and Others Vs.
Punjabrao Deshmukh Krishi Vidyapeeth By Registrar and Others
(2014) 8 SCC 369 wherein Supreme Court has clearly observed that
merely on account of lapse of time those persons who are selected by
unfair and unreasonable means cannot be allowed to continue because
that would amount to perpetuating a wrong when deserving candidates
are left out with a brooding sense of injustice and cynicism against the
efficacy of the system which is meant to act fairly and objectively.
The relevant paragraphs of this judgment are paras 32 and 34, and
which paras read as under:-
"32. The Chancellor declined to show any leniency to the petitioners no
matter they had served the University for over six years primarily
because the entire selection process was in his opinion vitiated by
widespread irregularities in the selection process. The findings recorded
by Justice Dhabe Committee upon a detailed and thorough examination
of the matter fully supported that view of the Chancellor. The reasons
that prevailed with the Chancellor cannot be said to be illusory or
irrelevant so as to call for interference from a writ court.
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34. Continuance in office of those selected by means that are not fair,
transparent and reasonable will amount to perpetuating the wrong. The
length of service put in by the candidates who were selected on the basis
of such a faulty selection process may be one of the considerations that
enters the mind of the Court but there are other weighty considerations
that cannot be given a go-by or conveniently forgotten lest those who do
not adopt such malpractices or those who expect the system to protect
their interest and their rights are eternally disappointed and left to believe
that a wrong once done will never be corrected just because the legal
process by which it is to be corrected is a long and winding process that
often takes years to reach fruition."
(iii) In view of the ratio in the case of Hitendra Singh (supra) the
argument of the petitioners that they having been appointed and served
as probationers for around two years, hence their appointments should
not be cancelled, is an argument which has no merit, and is therefore
rejected.
22. The judgment in the case of Hitendra Singh (supra) is
also relevant in the present case inasmuch as it lays down the ratio that
Courts will not interfere with decisions of the executive authorities
inasmuch as there is very limited scope of judicial review by a Court
once a fact finding enquiry arrives at its decision on the basis of
materials which are examined. Accordingly, once conclusions are
drawn by the enquiry committee upon careful appraisal which is
justified even a writ court will not interfere with the conclusions of the
enquiry committee. The relevant paras of the judgment in Hitendra
Singh (supra) are paras 26 and 27 and which read as under:-
"26. The findings recorded by Justice Dhabe Committee were based on facts
discovered in the course of the inquiry. No serious attempt was made before
the High Court nor even before us to challenge the said findings of fact.
Even otherwise a finding inquiry instituted by the Chancellor was bound to
involve appraisal of evidence, documentary and oral. The conclusions
drawn on the basis of such appraisal were open to critical evaluation by the
authorities before whom the conclusions and the Report was submitted for
action but once such conclusions are upon a careful reappraisal found to be
justified, a writ Court will be very slow in interfering with the same.
27. In the present case, upon receipt of the report from Justice Dhabe
Committee the matter was directed to be placed before the Executive
Council of the University. That direction was meant to give the Executive
Council an opportunity to examine the findings of fact and the conclusions
drawn from the same critically and to determine whether the same were
justified. The Executive Council, it is common ground, had without any
reservation approved the findings recorded by Dhabe Committee, no matter
with a recommendation to the Chancellor to take a lenient view in the
matter, having regard to the fact that the Petitioners had already served the
University for nearly six years. The recommendation of the Executive
Council did not, however, find anything amiss with the conclusions drawn
by the Dhabe Committee as to the irregularities in the selection process
culminating in illegal appointments of the selected candidates. The "fact
finding" aspect thus stood concluded with the approval of the Executive
Council of the University. The Vice Chancellor no doubt made an attempt at
segregating what according to him was the valid part of the selection from
that which was not, but the Chancellor did not approve of that exercise. The
Chancellor took the view that the entire selection stood vitiated by
widespread irregularities, leaving hardly any room for a distinction between
the so called valid and invalid parts of the selection process. Be that as it
may the fact remains that we have not been able to find any reason to
interfere with the findings recorded by the Justice Dhabe Committee. The
sanctity of the entire selection process having been vitiated by irregularities
and acts of nepotism, Question (iii) shall have to be answered in the
negative, which we accordingly do."
23. In view of the above, there is no merit in the petitions, and
the same are therefore dismissed, leaving the parties to bear their own
costs.
MARCH 20, 2017 VALMIKI J. MEHTA, J
Ne/ib/godara
