1 Reportable IN THE HIGH COURT OF DELHI AT NEW DELHI +WP(C) Nos.12130-39/2004, 550/2005 and 166/2006 Date of Decision: 20-12-2007 #Smt.Kiran Juneja & Ors. .....Petitioners in WP(C) No.12130- 39/2004 Mrs.Karunesh Gambhir .....Petitioner in WP(C) No.550/2005 National Council for Education Research and Training ....Petitioner in WP(C) No.166/2006 ! Through: Mr.Rakesh Khanna, Senior Advocate with Mr.Reetesh Singh and Ms.Shailja Sinha for the petitioners in WP(C) No.12130-39/2004. Mr.Shyam Babu for the petitioner in WP(C) No.550/2005. Ms.Haripriya for the petitioner in WP(C) No.166/2006. Versus $Union of India & Ors. .....Respondents ^ Through Mr.Suresh Kait for the UOI in WP(C) No.12130-39/2004. Mr.Dalip Mehra for the UOI in WP(C) No.550/2005. Ms.Haripriya Padmanabhan for the respondent/NCERT. Mr.V.K. Tandon for Delhi Police. CORAM :- *THE HON'BLE MR.JUSTICE A.K.SIKRI THE HON'BLE MR.JUSTICE VIPIN SANGHI 1.Whether Reporters of Local papers may be allowed to see the Judgment? 2.To be referred to the Reporter or not? 3.Whether the judgment should be reported in the Digest? 2 A.K. SIKRI, J. : 1. All these writ petitions cover the same canvass of facts and the legal issues raised are also common. In fact, the judgment of the Central Administrative Tribunal (in short 'CAT'), which is impugned is common by which OAs filed by different persons were decided. To have the glimpse of the issue involved, we may point out at this stage itself that recruitment for the post of Assistants was done by the National Council of Education Research and Training (in short 'NCERT') and the petitioners herein appointed. Some of the persons, who could not be selected and were aggrieved, challenged the entire selection process on the ground that there were large scale irregularities and bungling in the selection process. Their OAs are allowed by the impugned judgment dated 22.7.2004 holding that the selection process is vitiated due to large scale illegalities and irregularities. This finding is based on the inquiries conducted by a committee formed by the Department, which was asked to go into the complaints of irregularities etc. received by them. As a consequence, the selection of the petitioners herein is quashed. We may 3 point out at this stage itself that in so far as official respondents/Department is concerned, they have accepted the judgment and do not wish to go ahead with the appointments/recruitment based on such selection. We may also point out that though the petitioners herein are not seriously contesting the report of the committee, which went into the allegations and found the bunglings, their case is that they are not concerned with any such irregularities allegedly found and even as per the report, they cannot be treated as beneficiaries of the illegalities. Therefore, after taking note of the facts in brief as well as the illegalities found in the selection process, main scope of this petition is to consider as to whether the petitioners herein can be treated as a separate class unaffected by the illegalities and, therefore, be given benefit of their selection for the purpose of appointment. 2. For the sake of convenience, we will, in the first instance, take note of the facts appearing in WP(C) No.12130- 39/2004. The learned Tribunal has, in the impugned judgment, given a succinct description of these facts and, therefore, without any fear of error, we can bank upon those facts in reproducing the same hereinafter. 4 Respondent Nos.3 and 4 were working as LDCs in the NCERT at the relevant time, i.e. in the year 2001-02. The selection process for the post of Assistants was initiated by the NCERT through notification issued in the 'Employment News' notifying 40 vacancies in the said post. Whereas 21 posts were meant for general candidates, 6, 3 and 10 posts were reserved for SC, ST and OBC candidates respectively. The scheme of examination consisted of written test, objective type test and an interview to test the knowledge of computer. A total number of 525 candidates appeared in the written examination. Results were declared and respondent Nos.3 and 4 also found their names in the merit list. Against 40 vacancies, which were available for being filled up, a list of 56 candidates was prepared, but ultimately approximately 100 candidates were called for interview. 3. Before the Selection Committee could process the appointment, on an anonymous complaint received, Prof. Ved Prakash, Head, DEME was entrusted investigation into various illegalities committed during the course of selection process. In this report, scrapping of the entire examination has been recommended on account of glaring 5 illegalities, which rendered eligible candidates into ineligible and vice-versa, to uphold the majesty and prestige of the organisation. The qualifying marks for general category candidates were 40 and for OBC, SC and ST were 32. In consultation with Prof. Ved Prakash and the Controller of Examination, out of 26 recommended candidates, 18 were recommended for appointment. Rest of them were deleted. At this stage, respondent Nos.3 and 4 filed OA No.1823/2002 assailing the said selection. After examining the matter, the learned Tribunal pronounced its judgment dated 9.12.2002 setting aside the said selection finding large scale illegalities in the selection process. Some of the persons, who were selected and appointed on the basis of the said selection, filed WP(C) No.1134/2003 in this Court primarily on the ground that they were not even made parties in the said OA filed before the Tribunal. Interim order dated 14.2.2003 was passed directing that the order of termination passed on 31.1.2003 on the basis of the impugned judgment of the Tribunal, be not given effect to. This writ petition was ultimately decided on 29.7.2003 whereby order of the Tribunal was set aside with liberty to 6 the petitioners in the said petition to be impleaded as party respondents and the matter was remanded back to the Tribunal for consideration afresh. It would be pertinent to point out at this stage that when the writ petition was filed against order dated 9.12.2002, though termination of the petitioners herein was stayed, there was no stay given in so far as impugned judgment of the Tribunal is concerned. Since by that judgment selection was quashed, the NCERT initiated fresh selection process. In this, respondent Nos.3 and 4 participated but could not be appointed. Nineteen candidates were selected and two of them were issued the offer of allotment. However, the said offer of appointment was subject to final outcome of the OAs and the writ petitions. This selection process was also challenged by filing OA No.1442/2004 on the same ground, namely, that the process was vitiated by illegalities. 4. The two OAs, namely, OA Nos.1823/2002 and 1442/2004 dealing with two selection processes for the filling up of the post of Assistants were taken up together by the Tribunal. The Tribunal directed production of the relevant records. The NCERT furnished a preliminary report, 7 which was on the basis of inquiry conducted during the pendency of the OAs in both the selection processes. The preliminary report showed large scale illegalities in both the selection process, and included, increase of marks of some of the candidates; rounding off of marks in the descriptive paper and in the objective paper; signatures of checkers and evaluator were missing and there were interpolation in the selection process held during the course of pendency of CWP; signatures of superintendent of the Examination Centre were conspicuously missing; and there were over-writing in the marks allotted. There is no serious challenge to the said illegalities which crept in the selection process. 5. The only question, which was argued before the Tribunal, was: "Whether, as a result of these illegalities, entire selection process was required to be struck down or it was possible to weed out the beneficiaries of the illegalities and, therefore, the quashing was to be limited to those beneficiaries only?" Whereas respondent Nos.3 and 4 (applicants in the OA), contended that it was difficult to weed out the beneficiaries of the illegalities and, therefore, entire selection process stood vitiated, the 8 argument of the other side was that the petitioners herein were not the beneficiaries of such illegalities at all, even as per the report and, therefore, their selection could have been maintained and should not be interfered with. In order to consider this aspect, the learned Tribunal went through the report of investigation before it. As per the report, following discrepancies were found in the first selection process, as is evident from the data:- -That the examination was written by as many as 510 candidates. -That of 510 candidates, as many as 104 candidates were found eligible to be called for interview. The eligibility was determined on the basis of minimum qualifying marks for each paper, which for the Descriptive paper happened to be as under: Table-1 Category General OBC SC ST Minimum Qualifying score in D.P. 40 32 32 32 -That in 26 out of 510 cases the marks of the Descriptive paper were found altered. As a result of that 21 out of 26 candidates (84.6%) were pushed to scale the qualifying 9 score. -See Table-2& 3 Table-2 No. of Candidates called for Interview No. of candidates with altered marks No. of candidates without altered marks Total 21 83 104 Table-3 General OBC SC ST Total Number of Candidates called for interview 55 23 25 1 No. of candidates with minimum qualifying marks- 40 for Gen. & 32 for others in D.P. 32 3 2 -Nil- % of candidates bunching at the qualifying score 58 13 8 -Nil- Of the total Number of 510, No. of candidates who have been pushed to the qualifying score 20 (36%) 4 (17%) 2 (8%) -Nil- -That of the total number of candidates called for interview, 32 out of 55 (58%) in general category, 3 out of 23 (13%) in OBC, and 2 out of 25 (8%) in SC category were found to 10 be awarded minimum qualifying marks. It is quite alarming that 58% of the cases in general and 13% in OBC category got bunched at the minimum qualifying score of 40-a phenomenon which is highly improbable in such a situation. -That there are quite a few candidates who have secured more than 40 marks in the Descriptive paper. Some of them have got as high a score as 50, 48, 47, 46 etc. When marks of such candidates are seen in relation to their marks in the paper of Rules & Regulations, it is observed that their corresponding marks are much lower in that paper as against those candidates who h ave just been awarded the qualifying score of 40 after alteration in the Descriptive paper. Strangely candidates with qualifying score of 40 in Descriptive paper have secured as high a score as 97, 90, 89 etc. in the rules and regulations paper as is evident from Table 3.1. 11 ___________________________________________________________ _ Table 3.1 Table3.2 . Ten cases with lowest Ten cases with highest qualifying marks in DP and marks in DP and their their corresponding marks corresponding marks in in Rules & Regulation Paper Rules & Regulation Papers ---------------------------------------------------------------------------------- --- S.No. Roll No. Marks in DP Marks in R&R S.No. Roll No. Marks in DP Marks in R&R 1 98 40 97 1 549 50 60 2 227 40 90 2 750 46 66 3 31 40 90 3 624 46 68 4 512 40 89 4 8 47 67 5 311 40 82 5 841 47 77 6 199 40 77 6 321 48 83 7 808 40 82 7 898 44 68 8 689 40 76 8 613 44 73 9 718 40 77 9 632 43 70 10 403 40 77 10 19 43 69 -That the data posted in table-3.1 strangely reveal that candidates getting highest & higher scores in rules & regulations papers have secured merely a qualifying score of 40 and that too after alteration. -That the data clearly indicate that the examiner firstly seems to have arbitrarily identified those cases where the candidates have secured high scores in Rules & Regulation Paper but did not qualify in Descriptive paper 12 and subsequently altered their scores so as to enable them to qualify for the interview. -That furthermore, low degree of correlation between the scores of two papers shown in Table 3.1 and Table 3.2 confirms the aforesaid suspicion on the one hand and it also creates apprehension even beyond the boundaries of Descriptive paper on the other hand. -That the aforesaid analysis of the data indicates glaring irregularities which would not withstand any test of scrutiny. -That in such a situation when interviews have already been conducted, re-evaluation of the answer scrips of the Descriptive paper might render some of the eligible candidates into non-eligible zone and vice versa and thus will further mess up the entire issue and thus compromise the credibility of the organisation. -That in view of the above, it is suggested that the entire examination may be scrapped and it may be rescheduled afresh because nothing is dearer than the prestige of the organisation. 6. The aforesaid report leads to the following analysis, as indicated in the report itself:- 13 (a) out of 510 candidates, 104 were found eligible to be called for interview. In 26 cases the marks of descriptive paper were found altered and 21 out of these 26 candidates were pushed to scale the qualifying marks. In many cases, the marks awarded were minimum qualifying marks. These constituted 58% of candidates in general category and 13% in OBC category. Thus, 32 out of 55 in general category and 3 out of 23 in OBC category got minimum qualifying score, which, according to the committee, was a highly improbable phenomena in such a situation. The indication was that their score must have been pushed to achieve the minimum qualifying score to enable them to be called for the interview. (b) many of these, who had been awarded just the qualifying score of 40 after alteration in the descriptive paper, scored as high score as 97, 90, 89 etc. in the rules and regulation paper. (c) as per the committee, it appeared that the examiner first arbitrarily identified those 14 candidates, who had scored high marks in rules and regulation paper but had not qualified any descriptive paper and to make them eligible subsequently altered their score in the descriptive paper. 7. In such a situation when interviews had already been conducted, the committee opined that the re-evaluation of the answer scripts of the descriptive paper might render some of the eligible candidates into non-eligible zone and vice versa, which would further mess up the entire issue and thus, compromise the credibility of the organisation. Therefore, the committee suggested that the entire examination be scrapped to save the prestige of the organisation. 8. The Tribunal had also gone through in detail the said report and it has recorded its observations in the following words:- “On perusal of the sheet, we find that there has been consistent rounding off marks, conspicuous missing signatures of evaluator and checker. The preliminary report during the pendency of this OA in respect of respondents clearly shows that there were illegalities in the process whereby rounding off marks and 15 signatures of the checker and evaluator were missing. In one of the cases the marks have been interpolated with someone making the candidate eligible. Not only the private respondents but the applicants' marks were also rounded off. Accordingly, on close scrutiny, the following illegalities have been found on a preliminary investigation carried out during pendency of the OAs: “Upon close scrutiny of the answer sheets of the candidates named hereinabove, the following irregularities have been noticed: DESCRIPTIVE PAPER: 1. Increasing of marks of some candidates. 2. Rounding of 1/2 marks. 3. Marks of Karunesh Sodhi who got 33 marks inter-changed with the marks of Sanjay Rohilla who got 41. OBJECTIVE PAPER 1. Signature of the checker missing in all the objective paper answer sheets. 2. Signature of the evaluator missing in some objective paper answer sheets. 3. Marks written in pencil and some cutting in some objective paper answer sheets.” 16 9. The illegalities, which were pointed out in the preliminary investigation report, regarding the second examination are the following:- “The bundle containing the answer sheets of 162 candidates handed over by Prof. V.K. Jain, Controller of Examinations, in sealed cover was opened and random checking of the same was conducted in the office of the LA, NCERT, and it was found that: I: The GK Paper I (nos. 162) did not bear any marking 3 of the answer sheets (viz., of Roll nos. 5497 coded 242760, Roll no.6328 coded 243068 of Shri Uma Kant & Roll No. 6568 coded 243164) did not bear the signatures of the Superintendent of the Examination Centre. II: The written Expression Paper II bore the markings, although in one bearing coded No.240054 there were overwritings on the marks allotted. There are overwriting in the marking with regard to Roll No. 6328 coded 243068 of Shri Uma Kant. In the case of Shri Ravinder Kumar coded 242272, the marks in one place had been reduced by overwriting. III: The Rules & Regulation Paper III were examined at random and the answer sheet of the same coded No.240054 again bore overwriting on the marks. There are overwriting in the marking with regard to Roll No. 6328 coded 243068 of Shri Uma Kant. The undersigned specifically 17 examined the answer-sheets of those GC candidates against whom there were specific complaints of manipulations, and at random checking the findings noted were found.” 10. The Tribunal, in these circumstances, concluded that it was not possible to weed out the beneficiaries of the illegalities and the entire selection process had to be given a go-by. It, thus, negatived the contentions of the petitioners herein that the interpolations, which were carried out, had no effect on the petitioners and their appointments were cleared by the committee. The Tribunal recorded that a short-listing process had been arrived at whereby out of several candidates, 25 SC and 23 OBC candidates had found way to the interview. Had there been any rounding of marks, the others, who were coming within the zone of eligibility, would have marched over the private respondents and would have been interviewed. This has deprived them an opportunity of equal participation in the selection. This is also the case with SC and ST candidates. As regard to one of the general candidates who has been interpolated with someone the same is also an illegality showing that process was not transparent and mass enblock illegalities 18 had taken place in both the selection which reflects on the integrity and functioning of the respondent organisation. 11. On this basis, the Tribunal observed as under:- “37. The preliminary report both of Prof. Ved Prakash and Capt. K.K. Joshi, VSO, NCERT, is an admission to the effect that both the selection processes had engrossed with material illegalities. We cannot by this standard weed out the beneficiaries of illegalities. The scope and zone of consideration was increased and ineligible persons have been inducted have found place in the list of appointed candidates. On presumption, we cannot draw any conclusion but the fact that both the selection processes incorporate an unfair selection process and glaring illegalities, we cannot expect such an action as fair. Rule of law shall have to prevail.” 12. The Tribunal also, while quashing the selection, expected that corrective measures would be taken by the official respondents. The Ministry of Human Resource Development was requested to fix the responsibility of the erring officials for appropriate action. We may point out at this stage that after the aforesaid observations the matter was got examined and final report submitted by the committee was placed before us at the time of hearing. In order to consider the question at hand, we shall refer the findings of this report at the appropriate stage. 19 13. As has been pointed out by us in the beginning that the bungling and irregularities, which are found by the Committee in its report, in the aforesaid selection process, are not disputed by the petitioners. The petitioners, however, say that they are not the beneficiaries of those malpractices and in so far as they are concerned, their appointment can be saved as it is not tainted in any manner. Therefore, the entire thrust of our discussion is to focus on the issue as to whether the alleged interpolations and irregularities had the effect on the appointments of the petitioners as well, and the answer to this would depend on the issue as to whether it would be possible to weed out the beneficiaries of the illegalities by separating the grain from the chaff. 14. Learned counsel for the petitioner had argued that the interpolations mentioned by Prof. Ved Prakash in his report had no effect on their appointments and for this reason, even in the said report the petitioners were cleared. It was also stressed that same was the position even in the second report and thus, both the reports had not pointed any finger on any of the petitioners. It was also submitted that the learned Tribunal failed to 20 appreciate that the names of the petitioners figure in Table 3.2 at serial Nos.3, 4, 5, 6, 7 and 9, which would show that they had scored good remarks in both the papers, i.e. descriptive paper and rules and regulation paper and there was no occasion for any of them to be given grace marks, nor any rounding off of the marks was needed for them to qualify the test. It was upon due scrutinisation of the papers that Prof. Ved Prakash as well as Prof. R.S. Saxena and Prof. G.L. Arora had carried out the weeding of persons who had benefitted due to grant of grace marks illegally and in the process of declaring eight eligible candidates ineligible. In the second report of Mr. K.K. Joshi, again it was brought out that in case of the petitioners, there was no such illegality detected, which leads to their selection being declared illegal. It was, thus, submitted that the Tribunal should not have quashed the entire selection process. Learned counsel for the petitioners relied upon the judgments of the Supreme Court in the following cases in support:- 1. Union of India Vs. Rajesh P.U. Puthuvalnikathu & another, 2003 (7) SCC 285. 21 2. Umesh Chandra Shukla Vs. Union of India and Ors., AIR 1985 SC 351. 3. Harshendia Choubisa and Anr. Vs. State of Rajasthan and Ors., (2002) 6 SCC 393. 15. In Union of India Vs. Rajesh P.U. (supra), the Apex Court held that in cases where it is possible to weed out the beneficiaries of illegalities, the selection process to that extent only be set aside leaving out the persons who had no concern with such malpractices. Following observations of the Supreme Court need a quote:- “On a careful consideration of the contentions on either side in the light of the relevant portions of the report said to have been submitted by the Special Committee constituted for the purpose of inquiring into the irregularities, if any, in the selection of candidates, filed on our directions- which report itself seems to have been also produced for the perusal of the High Court – there appears to be no scope for any legitimate grievance against the decision rendered by the High Court. There seems to be no serious grievance of any malpractices as such in the process of candidates or by those who actually conducted them. If the Board itself decide to dictate the questions on a loudspeaker in English and Hindi and none of the participants had any grievance in understanding them or answering them, there is no justification to surmise at a later stage that the time lapse in dictating them in different languages left any room or scope for the candidates to discuss among them the possible answers. The posting of invigilators for every ten candidates would belie any such assumption. Even that apart, 22 the Special Committee constituted does not appear to have condemned that