1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6149 OF 2005 Sharmila d/o. Sureshchandra Surana Age 28 years, Occ. Nil, R/o. 64, Nalnalpeth, Near Doke Talim, Pune-411 002 .. Petitioner [Original Applicant} Versus 1] The State of Maharashtra through the Secretary Department of Home, M.S. Mantralaya, Mumbai. 2] The Maharashtra Public Service Commission, through the Deputy Secretary & Controller of Examinations Bank of India Building, Fort, Mumbai 3] The Deputy Secretary Home Department, M.S., Mantralaya, Mumbai-32. .. Respondents. [Original non-applicants ] --- Mr.S.G. Aney, Senior Counsel with Mr. R.S. Deshmukh, Advocate for the petitioner. Mr. P.M. Shah, Senior Counsel with Mr. Mukul Kulkarni, Advocate for the respondent No.2 Mr. P.P. More, AGP for the respondent Nos. 1 and 3 CORAM : A.P. DESHPANDE & N.D. DESHPANDE,JJ. DATE OF RESERVING JUDGMENT : 5TH MARCH, 2010. DATE OF PRONOUNCING JUDGMENT : 10TH MARCH, 2010. 2 JUDGMENT [PER A.P. DESHPANDE, J.] :- 1] This writ petition filed under Articles 226 and 227 of the constitution of India, questions the correctness of the judgment and order passed by the Maharashtra Administrative Tribunal, Mumbai, Bench at Aurangabad in Original Application No. 105 of 2004. The petitioner had challenged the order dated 15th October, 2003, passed by the respondent No. 2 Maharashtra Public Service Commissioner ( “MPSC” for the sake of brevity), cancelling the recommendation for appointment to the post of Deputy Superintendent of Police, on the basis of the final result of the State Services ( Main ) Examination, 2000 and further debarring her from all examinations and selections of the Commission, for a period of 5 years, from 14th October, 2000. The petitioner had also challenged a Government Resolution dated 4th November, 2003, which is a consequential order, issued by the State Government, cancelling the appointment of the petitioner to the post of probationer Deputy Superintendent of Police/ACP. The reason for cancellation of recommendation by the MPSC and the consequential order of cancellation of appointment, passed by the State Government, was the use of unfair means at the MPSC (Main) Examination. The MPSC examination comprise of two stages. The first stage is the preliminary examination, whereas, the next one is the main examination. The candidates who clear the preliminary examination are only eligible to appear at the main examination. 3 2] The case of the petitioner as is revealed from the original application filed before the Maharashtra Administrative Tribunal is that the petitioner was declared “Failed” in the preliminary examination of 2000. It is then averred, 'However, as she was confidence personified in regard to her performance in the Prelims and upon coming to know that, some of the students who had appeared in the Prelims of 2000 and were earlier declared as failed, had upon re-verification, been declared as passed, the applicant had also applied to the respondent No.2 Commission for re-verification of her marks.' It is a matter of record that on re-verification of the marks, the petitioner was declared successful and thus, could appear for the main examination. 3] In the result of the main examination of 2000, the petitioner was declared successful and hence, her name was recommended by the MPSC to the State Government. Acting on the recommendation from the MPSC, the petitioner came to be appointed to the post of Deputy Superintendent of Police on probation for a period of 2 years and 3 months. Perusal of the terms of appointment reveals that only on successful completion of the probationary period, the petitioner was to be continued in service. During the probation period, the petitioner had reported to the Maharashtra Police Academy at Nasik on 30th September, 2002 and was undergoing the requisite training. The petitioner passed the Departmental Examination and also passed the examination conducted by the Maharashtra Police Academy, 4 Nasik. Thereafter, the petitioner was posted under the Superintendent of Police, Jalgaon for undergoing the practical training. 4] While she was posted at Jalgaon for training, she was served with a communication from the MPSC dated 3/9/2003, calling the petitioner's explanation within 10 days, with respect to certain breaches of instructions committed by her, while writing her Main Examination Paper of “Marathi”, “English” and “Political Science”. The charges levelled against the petitioner, as are revealed from the show cause notice, are to the effect that, in the answer paper of “English” subject, on page No.19; on the answer paper of “Marathi” subject, on page No.10, so also, in the answer paper of “Political Science” subject, on page No.2 of supplement No.5, the applicant/petitioner had put her signature. It is then stated that in the “English” and “Marathi” answer papers, on page No. 1 and 21, the petitioner had written her actual address of residence. Hence, the petitioner was informed that she is liable to be punished for committing the breach of Instruction No.20, printed on front page of the Hall Ticket. The petitioner was called upon to show cause as to why her selection for the post of Deputy Superintendent of Police, be not cancelled and as to why the petitioner should not be debarred from all examinations and selections from November, 2000, permanently. The reply to the show cause notice was sought within a period of 10 days. It was also informed to the petitioner that if the petitioner fails to submit the reply to the show cause notice, it will be assumed that the petitioner does not have any explanation to offer and an ex-parte decision would be taken. 5 . The petitioner by letter dated 11th September, 2003, asked for 15 days extension of the time granted to her for submitting reply to the show cause notice, on the ground that she was engrossed in preparation of the examination of Police Academy. The MPSC did consider the request favourably. However, instead of granting 15 day's time as prayed for, granted 7 days time, vide communication dated 12th September, 2003. Even in this communication, it is reiterated that if the petitioner fails to submit the reply, within the extended period of 7 days, an ex-parte decision would be taken by assuming that the petitioner has no explanation to offer. The petitioner further asked for 10 days time, by letter dated 16th September, 2003, and requested the MPSC to make available for perusal the answer papers of “English”, “Marathi” and “Political Science”. However, no further extension of time was granted and the MPSC passed the impugned order on 15th October, 2003, whereby, the recommendation made by the MPSC for appointment of the petitioner as Deputy Superintendent of Police was cancelled and the petitioner was debarred for a period of 5 years w.e.f. 14th October, 2000 from appearing for any examination of the MPSC. As stated hereinabove, acting on the recommendation of the MPSC, the State Government issued an order cancelling the appointment of the petitioner. 5] Aggrieved by the cancellation of the recommendation by the MPSC and the consequential order passed by the State Government, cancelling the petitioner's appointment to the post of Deputy Superintendent 6 of Police, the petitioner filed an Original Application before the Maharashtra Administrative Tribunal. . The case put forth by the petitioner before the Tribunal, as spelt out in para. V. of the application reads thus :- “ However, as it now appears, the applicant while appearing for the Main Examination of 2000 had in the flow of writing her papers committed certain inadvertent, unintentional and non-deliberate mistakes while answering the papers of Marathi, English and political science. That is to say, in her said papers she had inadvertently put her signature at 1 place each in the said 3 papers where she had either scored out the written portion ( as in the answer sheets of Marathi & English where she had scored out the draft “Letter” written by her while answering the question of “Letter writing”) or had by mistake left 2 blank pages in between (as in the answer sheet of Political Science). It may not be out of place to state here that the only reason for applicant to put in her signature at those places was to convey the fact that the scoring out or leaving of blank pages by mistake was being authenticated by her. In other words, applicant had no other intention than to convey that she intended to score out some of the written portion and that pages were left blank merely by mistake. Applicant further says that it may be further pertinent and relevant to note that through out her answer sheets of all the subjects at no place she had written her name. However, in the answer sheets of Marathi and English that too while answering the question in respect of Letter writing only that the applicant had 7 merely stated only a part of her address that too without mentioning her name ( and this had happened in the “draft letter” as well as in the “final letter” written by her both in Marathi and English, out of which, the applicant had scored out the “draft letter” in both the papers). As such, it is explicitly clear that while the applicant had not at all written her own name or her full address at any of the places in any of her answer sheets that it was merely due to inadvertent mistake that she had put her signature at 1 place each in the papers of Marathi, English and Political Science.” The same case in verbatim is reproduced in the writ petition. 6] As seen from the above extracted averments made in the Original Application, the petitioner has not denied that the petitioner had put her signature at various places in the answer papers of “Marathi”, “English” and “Political Science”. The explanation is that the signatures on the answer sheets were made inadvertently, unintentionally and are not deliberate. It is also undisputed that after scoring out the draft letter, she put her signature/initials. The explanation is that, the signatures were made by the petitioner to authenticate the fact that the petitioner had scored out the draft letters. According to the learned counsel for the petitioner, the signatures, initials or writing of actual address of the petitioner in the answer sheets was an inadvertent act and was not intended to secure any benefit by identifying the answer sheets of the petitioner. 8 7] It is the case of the respondents, that a huge scam in conduct of MPSC examinations of 1999 was unearthed on account of which the Chairman of the MPSC and 24 other senior Officers having been found guilty, by the investigating agency, are being prosecuted. The learned counsel for the respondent No.2 MPSC has pointed out that thought the petitioner had failed in the preliminary examination and was not eligible to appear in the main examination, she had applied for re-verification of marks and only after re-verification of marks, the petitioner came to be declared successful in preliminary examination. The learned Senior Counsel Shri Shah has also pointed out that, as a matter of fact, the re-verification of marks is not permitted in the preliminary examination. Despite the same, the Officers of the MPSC did entertain the application for re-verification of marks of some students, including the petitioner. The learned counsel for the respondent No.2 has invited our attention to an advertisement issued by the MPSC in 2000 Preliminary Examination, to point out that re-verification of marks is wholly impermissible. Clause 15 (6) of the advertisement categorically makes it clear that neither marks secured by the candidates would be communicated to them, nor any application for re-verification of marks will be entertained. . If this be the position, it is crystal clear that the MPSC could not have entertained the applications of some candidates, including the petitioner for re-verification, contrary to its declared policy. Thus, it is apparent that the petitioner was not even eligible to appear for the Main 9 Examination. Be that as it may, the petitioner was permitted to appear for the Main examination and was declared successful. 8] Perusal of the affidavit in reply filed by the respondent No.2 before the Tribunal reveals that in the first place it is pointed out that the petitioner had not passed the preliminary examination and hence, was not eligible and qualified to appear at the Main examination. It is then stated that when the petitioner was interrogated by the Anti Corruption Bureau, during the course of investigation in Crime No. 33/2002, she had admitted the infringement of instructions by putting her signatures, initials and real address, terming them as “mistakes”. It is also stated in the reply that, the MPSC has compared the signatures of the petitioner with other signatures in the record available with the MPSC and has also got those signatures compared from a Handwriting Expert. It is further the case of the MPSC that the instructions in regard to non-disclosure of identify of the candidate, are printed on the Hall Ticket , as also on the answer papers. Our attention is invited to the Hall Ticket and the special instruction which mandates the adherence of the instructions. The candidates are also cautioned that if a candidate does not abide by the instructions, the candidate can be removed from the Examination Hall and could be disqualified from appearing at the examination or selection by the MPSC. We have seen the relevant instructions and it is not in dispute that if the petitioner has done what is alleged against her, then the petitioner has committed breach of the instructions. The instructions also provide for Do's and Dont's. Signing on the 10 answer papers is prohibited. For that matter, any mark in the answer paper which goes to reveal the identity of the candidate is wholly impermissible. 9] The learned counsel for the MPSC has emphatically contended that the MPSC had issued instructions to ensure fairness in the examination. It is the insistence of the Commission that no candidate should make an attempt to reveal his identity, either by putting signature, writing roll number or in any manner, whatsoever. The breach of the instructions per-se amounts to malpractice at an examination. Competitive examinations are required to be conducted by the MPSC in strict secrecy and public interest does not permit any compromise in that regard. Hence, the MPSC is justifying the impugned order passed by it. 10] In the circumstances narrated hereinabove, the learned counsel for the petitioner, has made three fold submissions. . (I) That, the impugned decision of the MPSC stands vitiated as the MPSC has relied on extraneous material to hold that the petitioner has committed a malpractice at the examination. It is contended by learned Senior Counsel Shri Ane, that the MPSC has relied upon the statements of the petitioner recorded by the Anti Corruption Bereau, allegedly made during the course of interrogation, so also, the opinion of the Handwriting Expert and the report of the Anti Corruption Bureau. 11 . (II) The second submission is that, no fair opportunity is granted to the petitioner to defend herself, inasmuch as, time sought for tendering the explanation was not granted and that the answer sheets demanded by the petitioner for perusal, for submitting the explanation were also not made available. Thus, in substance, it is argued that, the impugned order is passed in violation of the principles of natural justice. (iii) Lastly it is submitted that the punishment is wholly disproportionate and is not commensurate with the inadvertent mistake of putting signatures on the answer sheets and/or putting initials or disclosing the real address of the petitioner. The learned counsel for the petitioner has also placed reliance on the judgment of the Division Bench of this court, in W.P. No. 1658/2006, “ Manoj Lohar Vs. State of Maharashtra” with connected matters, by pointing out that the petitioners in the said case were similarly situate and victims of the same MPSC scam, who are granted reinstatement. 11] Shri Shah, learned senior counsel appearing for the MPSC and the learned AGP appearing for the Sate, have submitted that the petitioner has put signatures on the answer sheets of “English”, “Marathi” and “Political Science” is not in dispute and was never in dispute. It is also not in dispute, contend the learned counsel, that the petitioner had disclosed her address and had initialled at some places in the answer sheets. Thus, there being no 12 dispute in regard to what the petitioner had done , there is no question of relying on any other material, be it extraneous or otherwise, to bring home the guilt of the petitioner. The petitioner has never denied the charge that she had put her signatures, initials and correct address in the answer sheets, at any point of time. The petitioner also did not dispute the said position when she filed the Original Application before the MAT. Rather, she has tried to justify the same, by contending that it is an inadvertent mistake and not intended to disclose the identify. 12] It is also emphatically urged that the MPSC had not even received the statement recorded by the Anti Corruption Bureau and/or the report from the Anti Corruption Bureau till passing of the impugned order. It is also submitted that the MPSC did not rely upon the opinion sought from the Handwriting Expert while passing the impugned order. It is submitted that by way of abundant precaution, so that the candidate ought not to suffer, the signatures were checked from the Handwriting Expert. It is also submitted that till the passing of the impugned order, the material, which is termed as “extraneous” was not even available with the MPSC. 12A] In Writ Petition No. 1658/2006 with connected Writ Petitions, the MPSC had withdrawn the recommendations on 4 grounds :- [I] That, the petitioners had falsely claimed to be belonging to “Gadi Lohar” N.T.(B) Tribe; [II] adopted malpractices in the process of examination and selection; [III] various manipulations were made in the 13 examination process and records regarding the result of the examination, in connivance of the Officers of the MPSC; and [iv] irregularities were committed for the benefit of the petitioners to get them appointed in the post of Deputy Superintendent of Police. In the facts of the said case, an internal inquiry was held, a report was also prepared and the said material and report was used against the said petitioners totally in violation of the principles of natural justice and hence, the Division Bench of this Court, allowed the petitions. The court, on facts, held that there was absolutely no material available to establish the charges. It is also held that the material available in the internal inquiry was used against the petitioners without the same being disclosed to the petitioners. . It is settled position of law, that the extent of compliance of principles of natural justice would differ from case to case depending upon the fact situation. There cannot be a straight jacket formula. In the case of the present petitioner, we have already pointed out that the petitioner, at no point of time, denied the charges levelled in the show cause notice. Rather, the petitioner admitted the acts attributed to her and has proceeded to explain the same, contending that the said acts were innocent mistakes. As such, the question of using extraneous material collected behind the back of the petitioner, does not arise in the facts of the present case. Hence, the judgment in W.P. No. 1658/2006 with connected matters, has no bearing on the issue which falls for consideration in the present case. 14 13] Once it is accepted that at no point of time, not even in the writ petition that is filed in this court, the petitioner ever denied to have committed the acts attributed to her, which in themselves, according to the MPSC constitute a malpractice, it hardly matters whether any other material was available or otherwise for passing the impugned order. Even according to the petitioner, the alleged statements of the petitioner recorded by the Anti Corruption Bureau only refers to an admission given by the petitioner that the signatures, the initials and the address mentioned in the answer sheets is that of the petitioner. Having regard to the fact, with a risk of repetition, we reiterate that as the petitioner has never disputed that she is the author of the acts attributed to her, by applying the rule of “Non-traverse”, a safe conclusion is possible to be reached that the petitioner has committed the breach of the instructions. Hence, the first submission of the learned counsel for the petitioner has to be rejected. 14] Coming to the next contention that the order passed by the MPSC is in breach of the principles of natural justice, suffice it to state that, initially the petitioner was called upon to submit the explanation to the show cause notice within a stipulated period. When the petitioner asked for extension, the same was also granted and the petitioner was cautioned that if she failed to tender the explanation before the extended period, an ex-parte 15 decision would be taken, by assuming that the petitioner has no explanation to offer. In the facts and circumstances of the present case, we are satisfied that the MPSC has taken a decision in adherence to the principles of natural justice and no fault can be found with the MPSC in not granting a further extension sought by the petitioner. No prejudice is caused to the petitioner by non-disclosure of the answer sheets, as demanded by her, to enable her to submit the explanation, for the reason that even today the petitioner does not dispute that she is the author of the signatures, initials and furnishing of address on the answer sheets and rather admits the same. 15] In so far as the last contention is concerned, it is submitted that the punishment is grossly disproportionate, irrational and unreasonable. Reliance is placed on the judgment of the Supreme Court in the matter of “ Union of India Vs. G. Ganayutham” reported in (1997) 7 SCC 463, so also judgment in the case of “Chairman/managing Director, Coal India.Vs. Mukul Kumar Choudhari” reported in AIR 2010 SC 75. Relying on the said judgments, it is submitted that the punishment is disproportionate and need to be interfered with. 16] The test laid down to find out as to whether the punishment is irrational or disproportionate, is as to whether the decision is one which no sensible decision maker could have arrived at (“Wednesbury Test”). There 16 cannot be any dispute in regard to the legal position. However, it will have to be seen as to whether the punishment is irrational or otherwise. To use unfair means at an examination that too, one conducted by the MPSC, for selecting best possible talent to man public employment, would be a serious matter. With a view to highlight the adherence to the instructions issued for conducting a fair examination, the learned counsel for the MPSC has relied upon the judgment of the Supreme Court in the matter of “Karnataka Public Service Commission and others Vs. B.M. Vijaya Shankar and others” reported in (1992)2 SCC 206, and to be precise, para. 3 and 5, which read thus :- “3. Such instructions are issued to ensure fairness in the examination. In the fast deteriorating standards of honesty and morality in the society the insistence by the Commission that no attempt should be made of identification of the candidate by writing his roll number anywhere is in the larger public interest. It is well known that the first page of the answer book on which roll number is written is removed and a fictitious code number is provided to rule out any effort of any approach to the examiner. Not that a candidate who has written his roll number would have approached the examiner. He may have committed a bonafide mistake. But that is not material. What was attempted to be achieved by the instructions was to minimise any possibility or