CIVIL WRIT JURISDICTION CASE No.16149 OF 2009 In the matter of an application under Article 226 of the Constitution of India. 1. ARCHANA SINHA , wife of Bir Bahadur Singh, resident of Village & Post Onda, PS Sare, District Nalanda 2. Manju Kumari 3. Jaya Kumari 4. Kanchan Bharati 5. Sushma Kumari 6. Sushma Kumari Azad 7. Anupama Kumari 8. Madhuri Kumari 9. Mahima Dang 10. Sangeeta Kumari 11. Nitu Kumari 12. Sandhya Singh 13. Poonam Kumari 14. Sefali Pandit 15. Snehlata Kumari 16. Shampa Mahata 17. Ragini Kumari 18. Smita Kumari 19. Ankita Sinha 20. Rashmi Kumari 21. Reena Kumari 22. Md. Awaish ….Petitioners Versus 1. THE UNION OF INDIA through Director General, Employees’ State Insurance Corporation, Panchdeep Bhawan, CIG Marg, New Delhi -110 002 2. Director General, Employees’ State Insurance Corporation, Panchdeep Bhawan, CIG Marg, New Delhi – 110 002 3. The Director (Recruitment Medical), Employees” State Insurance Corporation, Panchdeep Bhawan, CIG Marg, New Delhi – 110 002 4. Assistant Director (Administration), Employees’ State Insurance Corporation, Model Hospital, Phulwarisharif, Patna -801505 5. Medical Superintendent, Employees’ State Insurance Corporation, Model Hospital, Phulwarisharif, Patna -801505….Respondents with CWJC No.16723 oF 2009 PRIYANKA GUPTA, aged about 29 years, daughter of late Bindeshwari Prasad Gupta, resident of Ram Sahay Lane, Opposite Shiv Mandir, Mahendru, PS Pirbahore, District Patna ………Petitioner Versus 1. THE UNION OF INDIA through the Director, Employees State Insurance Corporation, Panchdeep Bhawan, CIG Marg, New Delhi – 110002 2. The Assistant Director (ADM), Employees State Insurance Corporation, Model Hospital, Phulwarisharif, Patna 3. Medical Superintendent,Employees State Insurance Corporation, Model Hospital, Phulwarisharif, Patna………Respondents ****** For the Petitioners : M/s Alok Kumar, Mukesh Kumar Thakur Siddharth Kumar, Advocates For the Union of India : Mr. Jitendra Kumar Roy, Advocate With Mr. Sushil Kumar Roy, Advocate For E.S.I.C : Dr. Anshuman 2 P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S K Katriar, J. These two writ petitions are directed against a common order dated 14.10.2009, passed by the Central Administrative Tribunal, Patna Bench, in OA No. 150 of 2009, and OA No.158 of 2009, whereby the original applications preferred by the writ petitioners have been dismissed. The appointments of the writ petitioners have been cancelled on the ground that they had been so appointed in pursuance of a seriously defective selection process. Both the writ petitions relate to the same selection process. We shall draw the basic facts from CWJC No. 16149 of 2009, except by specific reference to the other writ petition. 2. A brief statement of facts essential for the disposal of the writ petitions may be indicated. The respondent authorities had issued advertisement on 21.9.1007 (Annexure 1), inviting applications for appointment of Staff Nurses as well as Members of Para-Medical Force. We are here concerned only with the recruitment of the Staff Nurses. The advertisement stated that 33 Staff Nurses were to be appointed. The writ petitioners appeared at the written examinations held on 16.12.2007, and the results were published in the newspapers, a photocopy of one such result is marked Annexure-3 to the writ petition. Appointment letters were issued to the petitioners on 31.3.2008 (Annexure 4 series). They joined on different dates in April 2008. It is relevant to state that the petitioners were under training and on probation for a period of two years. It is also relevant to mention that the respondent authorities selected 33 candidates, but only 23 of them joined. The Director (M.A.) of the respondent Employees’ State Insurance Corporation addressed his letter dated 11.2.2009, to respondent no.5, wherein the following instructions were conveyed:- “1. Scrap the written test held on 20.1.2008 in respect of para-medical staff. 2. Terminate the services of the staff Nurses, who were recruited by the aforesaid dubious written test, after giving one months notice under Section 1(5) of the Temporary Services Rule. 3. Hold a fresh examination for filling up the posts of staff Nurse and para-medical staff under the supervision of Recruitment Cell, Hqrs. Office.” 3 Consequently the Medical Superintendent issued individual orders all dated 18.2.2009 (Annexure 7 series), to the petitioners, intimating them that their services as Staff Nurse was terminated in terms of rule 5(1) of the Temporary Service Rules after giving them one months notice. This was followed by the two original applications before the Tribunal, which have been rejected by the impugned order. The Tribunal has, inter alia, held that it was a case of wide-spread malaise in the selection process, and the orders of termination of service are not punitive or stigmatic in nature. Hence these writ petitions. 3. While assailing the validity of the order of the Tribunal, learned counsel for the petitioners submits that it is evident on a plain reading of the aforesaid instructions dated 11.2.2009 (Annexure 6) that services of the petitioners were terminated in view of the written examinations which took place on 20.1.2008, which was really the examination for selection of para-medical staff which was a different category of employees under the same advertisement. In other words, in his submission, the petitioners are being punished for the defective examination held on 20.1.2008. He next submits that summary of the vigilance enquiry, marked Annexure-9 to the writ petition, makes it clear that only five staff nurses are mentioned therein, which is surely not indicative of wide-spread malaise. He relies on the following reported judgments:- (i) [(2002) 3 SCC 146] Union of India v O Chakradhari (ii) Judgment of the present Division Bench, reported in [2009(3) PLJR 878 Bihar Public Service Commission v Mukesh Kumar Singh (iii) Judgment of one of us (S K Katriar, J.), reported in [2009(1) PLJR 744] Sunil Kumar Sinha v State of Bihar Relying on the same judgments, he submits that no show-cause notice was issued to the 23 candidates to explain their position. He also submits that the impugned orders dispensing with the service is punitive in nature and, therefore, fit to be set aside. He relies on the judgment of the Supreme Court in the case of Anoop Jaiswal vs. Union of India [AIR 1984 SC 636]. He lastly submits that there is an acute shortage of nurses all over the country. Therefore, every effort has to be made to uphold the selection process unless the situation is found to be impossible. 4 4. Dr. Anshuman, learned counsel for the respondent Corporation, has supported the impugned action. He submits that the Tribunal, the forum of facts, has found that the entire selection process was vitiated because of the diverse irregularities. It is, therefore, not possible to separate the blemished from the unblemished. He also submits that in a case of the present nature, principles of natural justice are not applicable. He further submits that the impugned action of the authorities is not by way of punishment, and is rooted in mass-scale defective selection process. It is a case of termination simpliciter where, in substance, the period of probation had been terminated for valid reasons. The seriousness of the situation is manifest on the face of it for the reason that the Medical Superintendent, who was in-charge of the selection process, is being proceeded against departmentally. He lastly submits that the impugned action of the authorities is the result of a combined vigilance enquiry for the two written examinations held on 16.12.2007, and 20.1.2008, both of which were found to be equally defective. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The Tribunal has held as follows in paragraphs 19 and 36 of its order:- “19. It appears that there was complaint regarding the mis-management of written test of staff nurses and para-medical staff in ESIC Model Hospital, Phulwarishariff, and on that complaint, there was a vigilance inquiry. In that inquiry, some applicants as well as some doctors other persons were examined. The interim report called for by the Tribunal is available with its enclosure, on record. The interim report shows that the vigilance team found some glaring irregularities in the above two examinations. The irregularities which related to recruitment of staff nurses are (i) The question book-let cum answer sheet for nursing staff was printed at Patna in two series. The total questions (both series taken together) printed was 1240, whereas on physical verification of the used and unused question book-let, the total question book-let cum answer sheets found to be only 700. (ii) No interview was conducted for the post of staff nurse, and they were allowed to join on the basis of marks obtained in the written examination in violation of the instructions contained in Head Quarters’ office letter dated 27.7.07 and letter dated 15.11.06. (iii) Proper security was not maintained with regard to opening of the question book-let cum answer sheets during the evaluation. Question book-let cum answer sheets were kept in open condition for days together during the evaluation process. (iv) Improper method was adopted in evaluation in as much as answers were not in OMR form. The names of the candidates as well as Roll Nos were distinctly found in the body of the question cum answer sheet. As a rule, this type of question book-let cum answer sheet should be given a secret code No., and the name and roll No. of the candidate should be detached from the question book-let cum answer sheet for fair and unbiased assessment, which was not allowed. (v) Evaluations were done on several rounds, and marks revised and added, 5 for which no convincing reason could be given by the evaluators, raising a big question mark regarding the modalities adopted during evaluation.” …. ………… ….. “36. Then, as regards the submission of the learned counsel for the applicants that according to the interim report, only a few applicants were beneficiaries of the irregularities and illegalities, hence there were no reason to terminate the appointments of others, the interim report, as already mentioned, shows that there were serious irregularities which go to the root of the selection process. Therefore, the appointments of all the applicants were vitiated. So, even though in the interim report, specific names of two applicants have been given as beneficiaries, the appointments of others cannot be sustained.” (Emphasis added) 6. It is thus evident that the Tribunal, the forum of facts, has found that the written examination and its evaluation with respect to the staff nurses held on 16.12.2007, was afflicted with large-scale malaise. It was, therefore, not possible to separate the blemished from the unblemished. According to the Tribunal, as many as 1240 book-lets were printed, out of which only 700 had been found. Does it lead to the conclusion that the rest had found its way to the open market. It has been observed by the Tribunal that the question book-let cum answer sheets were kept in open condition for days together during the evaluation process without any secret code as a result of which it was very easy to help the favoured candidates. The Tribunal has concluded by stating that “….there were serious irregularities which go to the root of the selection process. Therefore, the appointments of all the applicants were vitiated…” The present case is, therefore, obviously covered by the judgment of the Supreme Court in the case of Union of India v O Chakradhar (supra). Paragraphs 8, 11 and 12 of the said judgment provides a safe guide in the present situation, and indeed covers this case fully:- “8. In our view the nature and 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. “11. It is mentioned in the C.B.I. report that huge amount of money was taken for selecting the candidates but none is coming forward to indicate as to who and how much was paid for it for fear of being in trouble. It is further reported that non-official Chairman of the Board made payment of printing of the examination paper etc. not to any firm but to one Gaja Raja Yadav. It may also be mentioned that according to the report a large 6 number of applications were missing and postal orders of the missing applications were encashed and misappropriated and even before the closing date of receiving the applications, it started sending applications to the computer firm for their scrutiny. CBI has named five persons as accused in the report, namely, the Chairman of the Railway Recruitment Board, Bangalore, who is a non-official, the Member-Secretary of the Board, an officer of the Railways, one Shri Hanumanth Bhaiya, a Senior Clerk of the Railway Recruitment Board, and Gaja Raja Yadav, the private person to whom payment had been made for printing of the question paper etc. “12. As per the report of CBI the whole selection smacks of malafides and arbitrariness. All norms are said to have been violated with impunity at each stage viz. right from the stage of entertaining applications, with answer-sheets while in the custody of Chairman, in holding typing test, in interview and in the end while preparing the final result. In such circumstances it may not be possible to pick out or choose a few persons in respect of whom alone the selection could be cancelled and their services in pursuance thereof could be terminated. The illegality and irregularity are so intermixed with the whole process of the selection that it becomes impossible to sort out the right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable. Guilt of those who have been selected is not the question under consideration but the question is, could such selection be acted upon in the matter of public employment? We are therefore of the view that it is not one of those cases where it may have been possible to issue any individual notice of misconduct to each selectee and seek his explanation in regard to the large-scale, widespread and all-pervasive illegalities and irregularities committed by those who conducted the selection which may of course possibly be for the benefit of those who have been selected but there may be a few who may have deserved selection otherwise, but it is difficult to separate the cases of some of the candidates from the rest even if there may be some. The decision in the case of Krishan Yadav applies to the facts of the present case. The Railway Board’s decision to cancel the selection cannot be faulted with. The appeal therefore deserves to be allowed.” (Emphasis added) On a perusal of the judgment of the Supreme Court and the materials before us, it appears to us that the mischief in conducting the present selection process was so widespread and all-pervasive affecting the result that it was difficult to identify the persons unlawfully benefited by the illegalities and irregularities committed by those conducting the selection process. 7. Law is well settled by a long line of cases that, in case of an examination or a selection process, afflicted by widespread irregularities, individual notice need not be served on the candidate, and the principles of natural justice are not required to be observed. The observations of the Supreme Court in Union of India 7 v O Chakradhar (supra), and underlined in the passage set out hereinabove, fully supports this proposition. The only requirement in such a situation is that the authorities must, on the basis of a bonafide enquiry, satisfy themselves that it was one such case where it was difficult to separate the grain from the chaff. In the fact and circumstances of the case, we are convinced that the respondent authorities took pains to conduct a thorough vigilance enquiry in the matter which has unfolded the large-scale irregularities committed in holding the selection process, has been summarized by the Tribunal and set out hereinabove. 8. Learned counsel for the petitioners submits that innocuous nature and character of the impugned order does not determine the nature of the order. Its substance has to be unravelled and, in the present case, is punitive in character. We are unable to accede to the submission, inter alia, for the reason that no stigma is associated with any individual candidate. The vigilance enquiry has disclosed that, for example, answer books remained uncared in the open. This might have resulted in irregularities but surely it does not attach stigma to an individual candidate. After all the impugned order of termination of probation is founded on a very objective enquiry conducted sincerely and bonafide. The judgment of the Supreme Court in Anoop Kumar Jaiswal vs. Union of India, is, therefore, inapplicable to the facts and circumstances of the present case. And all of them would be entitled to appear at the next examination and the impugned orders of termination of probation shall not come in their way. 9. Learned counsel for the petitioners has laid considerable emphasis on the inter-departmental communication dated 11.2.2009, the entire text of which is reproduced hereinbelow:- “Subject:- Recruitment of Group C para-medical staff -reg. Sir, I am directed to refer to your letter No.422-A- 15/1/Recruitment/2007 dated 1.1.2009 and to communicate the decision of the Competent Authority as enumerated below:- 1. Scrap the written test held on 20.1.2008 in respect of para-medical staff. 2. Terminate the services of the Staff Nurses, who were recruited by the aforesaid dubious written test, after giving one month’s notice under Section 5(1) of the Temporary Services Rule. 8 3. Hold a fresh examination for filling up the posts of Staff Nurse and Para-medical staff under the supervision of Recruitment Cell, Hqrs. Office.” He strenuously contended that paragraphs 1 and 2 of the same are irreconcilable. How can the petitioners’ services be terminated on the basis of a “dubious written test” held on 20.1.2008. The contention on first flush appears to be attractive, but a deeper scrutiny does not help the petitioners. The authorities have made the mistake of not mentioning the written test held on 16.12.2007, but that is an inadvertent omission. A combined vigilance enquiry with respect to the two written tests held on 16.12.2007, and 20.1.2008, found that both were extremely defective, and full of irregularities. 10. Learned counsel for the petitioners has also submitted that the minor defects of the candidates may be ignored so that the acute shortage of nurses is taken care of. We have our fullest sympathy with the candidates, but it is not possible for us to uphold such a vicious selection process. However, it appears from a perusal of the materials before us that the authorities intend to conduct a fresh selection process. All the 23 candidates shall be entitled to appear at the fresh selection process, and the age-bar shall not operate against them. 11. In the result, we do not find any merit in these two writ petitions and are dismissed. In the circumstances of the case, there shall be no order as to costs. ( S K Katriar ) ( Kishore K Mandal ) Patna High Court, Patna The 16th of March 2010 AFR/ mrl