1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.9147 of 2005 With Writ Petition No.9148 of 2005 With Writ Petition No.9149 of 2005 With Writ Petition No.10854 of 2004 (Not on board) ----- Writ Petition No.9147 of 2005 Shri Dilip s/o Jagannath Sarode. .. .. Petitioner v/s. The Maharashtra Public Service Commission & others. .. .. .. Respondents W I T H Writ Petition No.9148 of 2005 Shri Dilip Nivrutti Godse .. .. Petitioner v/s. The Maharashtra Public Service Commission & others. .. .. .. Respondents W I T H Writ Petition No.9149 of 2005 Shri Svinash Vasant Narkhede .. .. Petitioner v/s. The Maharashtra Public Service Commission & others. .. .. .. Respondents 2 W I T H Writ Petition No.10854 of 2004 (Not on board) The Maharashtra Public Service Commission .. .. Petitioner v/s. The State of Maharashtra & others. .. .. .. Respondents Smt.Usha Purohit with Dr.(Smt.) R.R.Ajinkya for petitioners in W.P. Nos.9147/05, 9148/05 & 9149/05. Ms.Leena Patil h/f Mr.S.R. Atre in W.P.No.10854 of 2004 for petitioner. (Not on board). Mr.S.R.Atre for respondent no.1 in W.P. Nos.9147/05, 9148/05 & 9149/05. Smt.M.P.Thakur, AGP in all matters. ------ CORAM : SMT.RANJANA DESAI & SMT.ROSHAN DALVI, JJ. Date of reserving the judgment : 22 nd February 2008 Date of pronouncing the judgment : 6th May 2008 JUDGMENT : (Per Roshan Dalvi, J.) 1. The petitioners are 3 out of about 2393 candidates who appeared for the examination conducted by the Maharashtra Public Service Commission (MPSC) in the 2000- 01 for the posts of Police Sub Inspector (PSI), Sales Tax Inspector (STI) and Assistant Sales- tax Inspector (ASI). The petitioners 3 contend that as they were declared successful in the examinations, they were called for physical test and oral interview, but have not been appointed to the posts for which the examinations were held and have, in fact, been blacklisted and permanently debarred from appearing in all the examinations conducted by the MPSC, under the order of the Deputy Secretary, MPSC dated 24.8.2005. The petitioners have accordingly challenged the said order. 2. A short chronology of events and dates from the notification under which the petitioners had acted until their final blacklisting and the orders in the proceedings impugned by them require to be first enumerated. 3. On 14.7.1999, a notification came to be issued in respect of examinations to be conducted for filling of the aforesaid posts. On 18.6.2000, the petitioners appeared for preliminary examination, which they cleared on 2.11.2000. The petitioners accordingly became eligible to appear for the final examination which was conducted on 18.3.2001. They were shown to have cleared that examination and they were, therefore, called for physical test and oral interview. 4. While the process of recruitment was under way, the MPSC received certain anonymous complaints in April 2002, 4 alleging mass scale malpractice and cheating by replacement of certain answer sheets. The MPSC conducted the preliminary inquiry to ascertain the veracity of the allegations in the complaints. It found the quality of paper of the answer sheets of certain candidates to be different from the others. It also found that it had different printing, font, and invigilators’ signatures on certain of those answer sheets. The inquiry, prima facie, showed that certain answer sheets (about 398 or 424) were replaced in the records of MPSC. It, therefore, checked up the computer list of the marks earlier recorded upon the mark- sheets of the candidates submitted at the time of the examination. It found that about 398 or 424 candidates showed higher marks than what were recorded in the system. Those answer sheets were on the different quality of paper and had different, printing, font and invigilators’ signatures than the other mark- sheets in the bunch and the other invigilators’ signatures in the answer sheets of other candidates near those answer sheets. 5. On 31.5.2002, the MPSC declared results of all the candidates except 398 candidates who appeared for the main examination whose results were withheld based upon the MPSC’s satisfaction of they having indulged in mass scale cheating by replacement of the answer sheets. As aforesaid, 5 the MPSC proposed to take administrative action against those candidates. Hence, on 1.7.2002, the MPSC issued its first show cause notice to each of those candidates. These were naturally on cyclostyled paper, calling upon them to show cause as to why administrative action should not be taken against them and they should not be debarred. On 9.7.2002, the candidates filed their reply. They required inspection and copies of certain documents. The MPSC issued a second notice on 9.8.2002, which was replied by the candidates on 14.8.2002, stating that they were not public servants within the meaning of Section 2(c) of the Prevention of Corruption Act, 1988 (PCA) or Section 21 of the Indian Penal Code (IPC) and that, therefore, the MPSC could not blacklist them. They contended that because the notices were cyclostyled, they showed non- application of mind. 6. Whilst the inquiry was in progress, those candidates were restrained from appearing in the next examination which was to be held by the MPSC. 7. In the meantime, after considering the documents on record and replies of the candidates, the MPSC lodged a criminal complaint with the Anti Corruption Bureau (ACB) with regard to the mass scale cheating in the aforesaid examination. A charge- sheet came to be filed by the ACB 6 against certain functionaries of the MPSC, including its highest functionary being the Controller of Examinations. It was seen by the MPSC that deep- rooted mal- practice could not have been committed simpliciter by the candidates and that several officers of the MPSC were involved. Certain officers were arraigned by the ACB pursuant to the criminal investigation. The candidates were, however, not arraigned in the criminal prosecution. They were issued show cause notices for taking departmental action against them by the MPSC, pursuant to the MPSC’s satisfaction in the preliminary inquiry that it itself conducted. 8. The MPSC considered not only the reply of the candidates but also the candidates’ say before the ACB, which was investigating the complaints lodged by the MPSC. Several of the candidates, including the three petitioners in the aforesaid three petitions gave their statements before the Investigating Officer of the ACB. Despite certain earlier statements of bare denial, some candidates later admitted to have got done certain mal- practices, though not personally by themselves. These statements showed that the candidates were approached by certain persons who assured them that they would be able to give them sufficient marks for them to be selected for the interview and/or appointed to the post for which they were examined. The aforesaid three 7 petitioners as well as several others consequently agreed to a figure of graft to be paid to those persons acting as conduits for them. The statements show that aside from handing over such gratification, the candidates had no knowledge of what transpired thereafter. They did not personally indulge in any mal- practice. The preliminary inquiry of the MPSC revealed that their officers from within, who alone had access to the answer sheets of the candidates, replaced them by new answer sheets which merited higher marks to be given to those candidates than what was previously recorded in the computer system of the MPSC. Consequently, the inquiry of the MPSC and the investigation of the criminal complaint put the two pieces of the puzzle together. The role of the candidates was only to part with illegal gratification to the conduits who approached them. The rest of the mal- practice was done at the other hand, of which the candidates were unaware and unconcerned. 9. It must be specifically mentioned that whilst recording their statements showing the payment of illegal gratification, the candidates, including the aforesaid three petitioners, were shown their answer sheets which were available on record. Those were the replaced answer sheets. Those bore, inter alia, roll numbers of the candidates, including the 8 petitioners. The petitioners, therefore, were shown their answer sheets. 10. At that time itself, their specimen handwriting was obtained by the Investigating Officer conducting the ACB investigation. Their specimen handwriting corroborated their oral statements. 11. Upon considering this clinching evidence, the MPSC passed its order/communication on 9.10.2002 blacklisting those candidates, including the petitioners and debarring them from appearing in any MPSC examinations in future. 12. This order came to be challenged in an Original Application (OA) filed before the Maharashtra Administrative Tribunal (MAT), Mumbai Bench, Police Group, by 171 candidates. On 23.2.2004, the MAT set aside the order of the MPSC dated 9.10.2002. A copy of that order is annexed as Exhibit- A to this petition. 13. The MPSC filed a writ petition being Writ Petition No.10854 of 2004 in this court, challenging the order of the MAT. By an order dated 14.7.2005 of the Division Bench of this Court, Exh.B to this petition, (of the Hon’ble Chief Justice H.L. Gokhale of Allahabad High Court, as he then was and 9 one of us Roshan Dalvi, J.), it was observed that the Commission inquiry revealed that upon the complaints received showing that the original answer books were changed, the Commission pointed out how the marks were found to be inflated, which aspect was not specifically denied in the reply of the candidates (including the petitioners) dated 14.8.2002 to the Commission’s second show cause notice. The candidates, however, contended that they were entitled to the marks which they obtained on those answer sheets. It was further observed that sufficient notice of the allegations made by the Commission was given to the candidates concerned and they had filed replies, which did not show any specific denial of the allegations. Yet as the Commission passed a cryptic order, it was held that the MPSC ought to have given reasons while passing its order since the candidates were debarred. Consequently, though the order of MAT came to be stayed, the MPSC was directed to again issue notices to 141 candidates who were until then defending the writ petition (including the three petitioners aforesaid). The candidates were allowed to file their replies to the notices and MPSC was directed to pass a fresh reasoned order. 14. The MPSC issued its third show cause notice on 23/24.7.2005, Exhibit- C to the petition. This show cause 10 notice specified that the complaints of unfair practices received by the MPSC in April 2002 were verified in an inquiry held by the MPSC at high level and it was found that the answer sheets of the petitioners were replaced and their marks were increased/revised marks were given. Consequently, a criminal complaint came to be lodged with the ACB against the miscreants which was being investigated under CR No.33 of 2002. The petitioners were directed to give their explanation within two weeks which would be considered by the MPSC. 15. On 4.8.2005, the petitioners replied to the show cause notice, Exhibit- D to the petition. This was their third reply. The reply shows a simpliciter denial of any increase in the marks in their answer sheets or replacement of the papers. The petitioners stated in their reply that the principles of natural justice were not followed and because they had not committed any offence, no criminal case was registered against them. They stated that the examination was conducted on 18.3.2001, after which they had no connection with the MPSC until they were declared successful in the main examination and having been found eligible, were called for physical test and oral interview. They contended that until their result was declared, the MPSC had not lodged any complaint for three and half years and that 11 though they were called 10/15 times by the ACB, they were not arrested in the criminal trial and hence, the MPSC’s action was against the principles of natural justice. They stated that they were not concerned with what happened in the MPSC or whether their marks were increased and that they were deliberately involved or falsely implicated by the MPSC. Thus, showing cause they pleaded for a sympathetic consideration by the MPSC. 16. The petitioners have executed an affidavit on 6th February 2004, Exhibit- E to the petition, in which they have stated that their statements before the ACB were made under duress. They have, however, not made any reference to the specimen handwriting obtained from them at the time of recording their statements which corroborated their admissions in the statements. 17. Upon considering the reply, bereft as it is of any material on record to show the petitioners' explanation to the replaced answer sheets shown to them or their explanation about the statement made by them before the Investigating Officer of the ACB accompanied by their specimen handwriting, the MPSC passed its final decision by a fresh reasoned order dated 24.8.2005, Exhibit- F to Writ Petition Nos.9147/2005 12 and 9149/2005 and Exhibit- E to Writ Petition No.9148/2005, which has been impugned in these petitions. 18. The order of the MPSC to Exhibits E and F to the petitions, shows that in the investigation of the MPSC, it was found that the substituted answer sheets were different in texture and that that act was criminal in nature. The MPSC therefore, lodged a criminal complaint in which charge- sheets were filed in court. The order states that the petitioners had relations with the accused resulting in they entering into the criminal conspiracy for substitution of their original answer sheets with the new answer sheets. It also mentions about the illegal gratification paid by the petitioners as admitted in their statements before the Police. It further states that the initial show cause notice of 1st July 2002 was simpliciter denied by the petitioners instead of giving a factual reply. The answer sheets of the petitioners were fabricated as reported by the Scientific Laboratory at Hyderabad. The petitioners were shown their answer sheets and they admitted that those were not in their handwriting and their specimen handwriting was taken by the ACB in July 2003. It was specified that the petitioners had not given any information in their explanation about replacement of the answer sheets as well as about their specimen handwriting and replacement could have been done only by 13 the petitioners since they derived benefit thereunder. It was, therefore, stated that the illegality had prejudiced the prestige of the MPSC and that the petitioners had replaced the mark- sheets only for their benefit. Consequently, their explanation dated 4.8.2005, was not acceptable to the MPSC and hence, the impugned order came to be passed, debarring the petitioners amongst 133 candidates. 130 of those candidates have accepted the decision. The MPSC’s final reasoned order dated 24.8.2005 has not been challenged by those candidates. 19. It is argued on behalf of the petitioners that they have given a statement of denial to the ACB, which has not been relied upon by the MPSC and the MPSC has followed the pick and choose policy of only relying upon the alleged statement of admission of guilt by the petitioners. The petitioners have contended that those statements were given under duress. They have, however, not challenged their specimen handwriting. They have not even denied that the specimen handwriting was taken at the time when their statements of admission of payment of illegal gratification was given by them. Their contention that their initial statement was not considered by the MPSC does not even form a part of their reply. The duress and threat alleged by the petitioners is seen to be misplaced in view of the complete silence with 14 regard to their specimen handwriting which corroborates their statements. 20. Though later the petitioners have denied giving of the statement itself in an affidavit filed by them and have alleged that it was given under duress, they have made no reference in that affidavit also to their specimen handwriting at all. 21. We may further mention that to satisfy ourselves, we called for answer sheets, including the petitioners’ answer sheets. We have gone through several of them. We have been specifically shown the petitioners’ answer sheets. They are of a different texture than that of several other answer sheets of candidates who appeared in the examination before and after the petitioners’ roll numbers. We have also seen the invigilators’ signatures on the answer sheets. The signatures on the petitioners’ answer sheets are completely different from those on the answer sheets of the candidates bearing roll numbers immediately before and after the petitioners’ roll numbers. The comparison of invigilators’ signatures on these answer sheets made under Section 73 of the Indian Evidence Act reveals that the invigilators’ initials on the petitioners’ answer sheets are cautiously made upon copying the same from the answer sheets of the preceding and succeeding candidates. In those cases, signatures appear to 15 be in a natural flow. In the case of the petitioners’ answer sheets, it does not show any such natural flow. We have also been shown the specimen signatures of the invigilators collected during the investigation of the criminal case by the ACB. This shows similar natural flow of signatures which are absent in the petitioners’ answer sheets. 22. We have also seen the petitioners’ specimen handwriting and compared them with the handwriting in the answer sheets. Though the answer sheets are on computerized paper requiring very little handwriting to be seen, the figures of roll numbers etc. mentioned in the answer sheets and compared along with the figures of the roll numbers in the petitioners’ specimen handwriting show a completely different handwriting in the two documents. It is this that the MPSC has seen correctly. It is this which betrays the petitioners’ denial bereft of any explanation with regard to their specimen handwriting which is corroborating evidence of the petitioners’ admission. We may mention that we had called upon the petitioners’ counsel to specifically address us on this aspect after we inspected the records but which has been left untouched. We have seen that the petitioners indeed cannot offer any explanation with regard to their specimen handwriting and once that essential evidence is left unexplained, the handwriting of the petitioners on the 16 replaced answer sheets which the petitioners claim to be theirs, cannot be accepted. The MPSC has undertaken the same exercise with the same result which cannot be faulted. 23. The petitioners have made a mischievous and misconceived plea before us that they were not shown the original as well as replaced answer sheets by the ACB or the MPSC and that copies of their answer sheets were not furnished to them and they were not given inspection thereof. It may be mentioned straightway that the original answer sheets were replaced by the miscreants. That is the specific mal- practice alleged by the MPSC. This fact has been verified upon seeing the texture of the paper as well as its print. It has been confirmed upon seeing the signature of the invigilators alongside their signatures on the other mark- sheets of candidates nearby. Making an allegation that the original mark- sheets have not been shown to the petitioners or offered for inspection or its copies given, beats our intelligence. No miscreant is expected to replace the original answer sheet by fresh answer sheet and yet retain original answer sheet on record or otherwise. Those have been understandably destroyed. Hence, seeking to make capital out of a document, which is destroyed, itself exhibits a complete lack of bonafides. So far as the replaced answer sheets are concerned, the petitioners' case that they were 17 also not shown to them is falsified by the fact of their statements made before the ACB admitting the replacement got made by them accompanied by their specimen handwriting. 24. The petitioners were shown their replaced answer sheets, on which they gave their statement admitting that those did not contain their handwriting. The petitioners have also given their specimen handwriting which could have been only collected to compare them with the answer sheets shown to the petitioners. The petitioners have not raised this contention in their replies to the show cause notices issued to them. In those replies, the petitioners have not asked for any documents which were relied upon by the MPSC and not shown to them. 25. The petitioners also contend that they were not given the report of the preliminary inquiry held by the MPSC as well as the Police statements relied upon by the MPSC. We do not see how that is material to be shown. The petitioners' explanation cannot be founded on the inquiry results. This has been held in a number of judgments of the Apex Court, which shall be considered presently. 18 26. It is argued on behalf of the petitioners that the petitioners were absent at the inquiry and the result of the inquiry without the petitioners’ participation must fail. We do not see how the petitioners were required to be present when the MPSC made its preliminary inquiry and called upon the petitioners to show cause to the notice issued upon them. The petitioners have shown no cause why action should not be taken upon the three notices issued to them on 1.7.2002, 9.8.2002 and 4.8.2005 and the three replies which they have sent to those notices on 9.7.2002, 14.8.2002 and 4.8.2005. 27. Hence, the case of the petitioners that the MPSC has reached its conclusion in the absence of documents and none are shown to the petitioners is seen to be completely incorrect. 28. It is in the rejoinder filed in Writ Petition No.9149 of 2005 that the petitioner therein has alleged that official opinion in the preliminary inquiry was based upon only a “few” answer sheets. Aside from the fact that it is not material to compare each and every answer sheet with that of the petitioners or their specimen handwriting, we wonder how the petitioners can allege this fact. The fact that invigilator’s signature “only appeared different” upon the comparison made has been also stated for the first time only in that rejoinder in Writ 19 Petition No.9149 of 2005 alone. We may use the affidavit in rejoinder made in one petition with regard to the other two petitions also. Yet we do not find any substance in the statement made therein to show any explanation of the petitioners that they were not a party to the fraud or mal- practice practised upon the MPSC. 29. Mr.Atre, Counsel for the MPSC, has drawn our attention to its rules of procedure which are annexed as Exhibit- 1 to its affidavit in reply. Under the rules, the MPSC has powers to decide in respect of the items enumerated in Rule 4 for regulation of the internal procedure of the work of its office. Under Rule 4(viii), the MPSC has power of blacklisting or taking other punitive action against the applicants for posts advertised by the MPSC or candidates appearing for a competitive examination conducted by the MPSC. The MPSC's order is, therefore, within the rules. The petitioners’ explanation is not satisfactory and rightly not found satisfactory by the MPSC. The act alleged in the complaints and verified by the MPSC in its preliminary inquiry, for which three show cause notices were issued upon the petitioners, is found to be substantiated. The petitioners have not shown any worthy explanation as was called for. In these circumstances, it would have to be seen whether the fresh reasoned order passed by the MPSC which awarded the 20 punishment of blacklisting the petitioners needs any interference. 30. We would be required to consider and analyse the judgments of the English Courts upon the Administrative Law expanded therein which, as a sacrosanct aspect of the Rule of Law, came to be followed and expanded by our Apex Court with regard to the parameters of rules of natural justice required to be followed in the departmental enquiries or by Commissions of the Union or States as the constitutional Authorities for conducting examinations in various areas. 31. The basic contention of the