CWP No. 6340 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: March 8 , 2011 1. CWP No. 6340 of 2009 Chandigarh Administration and another … Petitioners Versus Yash Pal and others …Respondents 2. CWP No. 7148 of 2009 Chandigarh Administration and another …Petitioners Versus Amardeep and others …Respondents 3. CWP No. 7151 of 2009 Chandigarh Administration and another …Petitioners Versus Vikash and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MS. JUSTICE RITU BAHRI Present: For the petitioners: Mr. Sanjay Kaushal, Senior Standing Counsel, U.T. Chandigarh, with Mr. Sanjiv Ghai, Advocate. For the respondents: Mr. R.K. Malik, Senior Advocate, with Mr. Nikhil Sharma, Advocate. Mr. R.K. Sharma, Advocate, 1. To be referred to the Reporters or not? yes 2. Whether the judgment should be reported in the Digest? CWP No. 6340 of 2009 -2- M.M. KUMAR, J. 1. This order shall dispose of CWP Nos. 6340, 7148 and 7151 of 2009, which have been filed by the Chandigarh Administration under Article 226 of the Constitution challenging common order dated 26.9.2008, passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’). 2. The facts, as culled out from CWP No. 6340 of 2009 are that on 18.2.2007, an advertisement was published in the newspapers inviting applications to fill up 20 temporary posts of Assistant Sub Inspector of Police in the Chandigarh Police (P-1). The selection was to be made in accordance with the Standing Order No. 33/2007, dated 23.1.2007, which lays down elaborate procedure for selection of candidates for the post of Assistant Sub Inspector in Chandigarh Police (P-2). As per the said Standing Order, the selection process consists of three stages viz. (i) Physical Measurement and Efficiency Test; (ii) Written Test; and (iii) Interview. Under sub-clause (iii) of Clause 4 of the Standing Order, it has been prescribed that for preparation of final result, there has to be a written test of 90 marks and interview of 10 marks. Only those candidates who secure 40% marks or above in the aggregate are to be considered qualified in the selection process. However, the Inspector General of Police has been empowered to relax this percentage for the reasons to be recorded in writing. Such reasons could be like non selection of sufficient number of candidates, CWP No. 6340 of 2009 -3- provided the percentage should not be below 35% in any case. Sub- clause (iv) of Clause 4 of the Standing Order further prescribes detailed procedure for conducting examination by following different stages. 3. In pursuance to the advertisement, total 2201 applications were received. As per the requirement of Standing Order, Physical Measurement and Efficiency Test of eligible candidates were held from 15.5.2007 to 18.5.2007. On 23.12.2007, the written test of the candidates who were successful in the Physical Measurement and Efficiency Test was held in terms of sub-clause (iv) (b) of Clause 4 of the Standing Order. On 4.1.2008, a list of successful candidates who passed the written test was issued and the candidates who qualified in the written test, were called for interview restricting their number to two times of the vacancies advertised, which were scheduled to be held on 21.1.2008. 4. The petitioner-Chandigarh Administration has claimed that on 11.1.2008, Sub Inspector Harinder Singh Sekhon, who was posted in Special Crime Investigation Cell, Chandigarh, received secret information disclosing that the question paper of the written test of A.S.I. for Chandigarh Police, held on 23.12.2007, was leaked before commencement of the examination. The secret information also revealed that two persons, namely, Joginder Dahiya and Sanjay Rana, residents of village Nizampur, Police Station Kanjhawala, New Delhi, in connivance with another native of said village Shamsher Singh, who is a Constable in Chandigarh Police, contacted the CWP No. 6340 of 2009 -4- aspiring candidates of A.S.I. exams and provided them solved question papers. Both of them had gathered candidates on 22.12.2007 near Karnal and supplied them solved question papers after charging huge amount. Thereafter the accused had dropped the aspiring candidates at the examination centre on 23.12.2007 at Chandigarh in a coach. It had also come to their notice from reliable source that Joginder Dahiya and Sanjay Rana were also in the process of leaking the question paper concerning the written test for the post of Sub Inspector of Delhi Police, which was scheduled to be held on 13.1.2008. The said information was brought to the notice of the senior police officers and thereafter a team of two Sub Inspectors and other police officials of Special Crime Investigation Cell of Chandigarh Police under the supervision of D.S.P. (C.I.D.) went to New Delhi and the information was shared with Assistant Commissioner of Police, Incharge Crime Branch, Prashant Vihar, New Delhi. Eventually, on the complaint of one Shri Hari Om Rana son of Shri Ram Phal, resident of Shahabad Daulatpur, New Delhi, a case F.I.R. No. 7, dated 13.1.2008, under Sections 420, 120-B, 34 I.P.C. was registered at Police Station Economic Offences Wing, Qutab Enclave, New Delhi. 5. As a result of the investigation of the said F.I.R., three associates of Joginder Dahiya and Sanjay Rana, namely, Pale Ram (A.S.I. in Railway Police Force), Rajesh Kumar (Constable under training in Delhi Police) and Ram Chander Guliya (Sub Inspector in Delhi Police), who were collecting money on their behalf, were CWP No. 6340 of 2009 -5- arrested. It has been pointed out that besides 20 lacs, a diary was also recovered from the residence of accused Pale Ram in which names of a large number of candidates were mentioned for various examinations to be held for different post in different departments. Constable Shamsher Singh of Chandigarh Police, who connived with Joginder Dahiya and Sanjay Rana – main accused, also went absent from duty and joined only on 5.2.2008. On inquiry, he confirmed that he introduced one Constable Amardeep Singh, No. 935, Chandigarh Police, who had cleared the physical test for the post of A.S.I. of Chandigarh Police, to Joginder Dahiya. Constable Amardeep Singh also gave 10 lacs to Joginder Dahiya in lieu of supplying solved question papers of the written test. On the basis of said information and verification, an F.I.R. No. 31, dated 8.2.2008, under Sections 420, 120-B I.P.C. was registered at Police Station, Sector 3, Chandigarh (P-3). 6. However, during the entire episode, the selection process for filling up 20 posts of A.S.I. of Chandigarh Police was continued, inasmuch as, interviews for the post of A.S.I. of Chandigarh Police were held on the scheduled date i.e. 21.1.2008 and the final merit list of selected candidates was also released. Some of the unsuccessful candidates approached the Tribunal by filing O.A. No. 52/HR/2008, dated 29.1.2008, for quashing and setting aside the selection dated 21.1.2008. On 31.1.2008, the Tribunal passed an order directing the petitioners not to finalise the selection to the post of Assistant Sub Inspector. Thereafter, on the CWP No. 6340 of 2009 -6- basis of reports dated 25.2.2008 and 5.3.2008, submitted by the D.S.P. C.I.D., U.T., Chandigarh, the Inspector General of Police, Chandigarh, decided to annul the written test and interview held for the post of A.S.I. of Chandigarh and to hold the written examination afresh, vide order dated 7.3.2008. The Inspector General of Police observed as under: “The investigation reveals that the paper of ASI’s written examination had been leaked out. Therefore, we may inform the CAT that the written test and interview are being annulled and the written examination will be held afresh. We may take n/a accordingly.” 7. The said decision was placed before the Tribunal in O.A. No. 52/HR/2008, filed by the unsuccessful candidates. When the Tribunal proceeded to dispose of the said OA as having been rendered infructuous, the selected candidates, who were impleaded as private respondents, raised an objection that on the basis of having qualified and selected a right has accrued to them. Accordingly, the Tribunal granted them liberty to raise their grievance by filing separate Original Applications, vide order dated 10.3.2008 (P-4). 8. Thereafter three Original Applications, namely, OA No. 160/CH/2008, OA No. 459/HR/2008 and OA No. 613/CH/2008 were filed by the selected candidates before the Tribunal. It has come on record that during the pendency of the said OAs, the petitioners decided to hold the written test afresh on 28.9.2008 followed by CWP No. 6340 of 2009 -7- interview. On 26.9.2008, the Tribunal disposed of the said Original Applications by observing as under:- “ After hearing the rival contentions of the learned counsel for the parties and after going through the records placed before us, we are of the considered view that the matter pertaining to the earlier selection of the applicants must be reviewed by the higher authority i.e. the Home Secretary, UT, Chandigarh. However, the written test to be conducted on 28.09.2008 may be held as per schedule but the result of the same may not be declared till the entire issue of earlier selection has been gone into by the Home Secretary. The Home Secretary will be at liberty to call for all the relevant records, evidence/witnesses etc. as he may deem fit for adjudication of the matter and thereafter reach a definite conclusion by passing a speaking order as to whether the annulment of the earlier selection by the IG Police is to be undone or whether a fresh selection based on the test to be held on 28.09.2008 followed by interview should be published. The Home Secretary will be free to identify the tainted candidates in the earlier selection and if possible, weed them out and clear the appointment of those in merit and not tainted if the selection is held valid. However, if he feels that such a conclusion is not possible on the basis of the records available and fresh CWP No. 6340 of 2009 -8- evidence/witnesses to be adduced by him, he will be free to order pronouncement of the results of the test scheduled for 28.09.2008 and confirm the annulment of the earlier selection by giving specific reasons. Obviously, the results of the written test scheduled to be held on 28.09.2008 will not be declared unless he has reached this conclusion. We order that the exercise may be completed within a period of 90 days from the date of receipt/production of copy of this order.” (Emphasis added) 9. Feeling aggrieved against the said direction passed by the Tribunal, the petitioners have filed these petitions. 10. Mr. Sanjay Kaushal, learned Senior Standing counsel for the U.T. Chandigarh, has vehemently argued that no right of the selected candidates, who are the respondents in the present proceedings, has been infringed and the directions issued by the Tribunal are wholly unsustainable in the eyes of law. In support of his submission, learned counsel has placed reliance on the judgments of Hon'ble the Supreme Court rendered in the case of Shankaran Dash v. Union of India (1991) 3 SCC 47 and argued that selection per se does not confer any indefeasible right of appointment. Therefore, the petitioners were within their competence to cancel the examination. He has submitted that the view taken in Shankaran Dash's case (supra) has been followed and applied, subsequently in the cases of Union of India v. Kali CWP No. 6340 of 2009 -9- Dass Batish (2006) 1 SCC 779; Punjab State Electricity Board v. Malkiat Singh, (2005) 9 SCC 22 and State of U.P. v. Raj Kumar Sharma (2003) 3 SCC 330. Another submission made by learned counsel is that it is not possible to segregate the tainted candidates from untainted because there is no intelligible identification mark which may be a conclusive guide for segregation. 11. Mr. R.K. Malik, as well as Mr. R.K. Sharma, learned counsel for the respondents have, however, submitted that the Tribunal has passed a harmless order, inasmuch as it has merely directed the Home Secretary to examine the original record and reach a conclusion by passing a speaking order as to whether the annulment of the earlier selection by the Inspector General of Police is required to be undone or whether a fresh selection based on the test held on 28.09.2008 has to be taken to its logical end by holding the interview. They have placed reliance on various paras of the judgment rendered in the case of Inderpreet Singh Kahlon v. State of Punjab (2006) 11 SCC 356 and paras 42 to 50 of the judgment in the case of Ashok Lenka v. Rishi Dikshit (2006) 9 SCC 90 and Union of India v. Rajesh P.U. (2003) 7 SCC 285. 12. After the arguments were concluded we asked Mr. Sanjay Kaushal to find out from the Home Secretary whether the segregation of tainted candidates from the untainted would be possible or not. Accordingly, a meeting under the Chairmanship of the Home Secretary was held on 01.12.2010 where DIG was also present. The minutes of the meeting have been placed before us CWP No. 6340 of 2009 -10- (Mark 'A'), which are as under: “In pursuance to the directions issued to the Senior Standing Counsel while arguing CWP No. 6340-CAT of 2009 (Chandigarh Administration and another Vs. Yashpal and others), a meeting of Senior Police Officers under the Chairmanship of Home Secretary was held in his office on 1.12.2010. During the discussion, it was brought to the notice of the Home Secretary as well as Senior Standing Counsel that the answer sheets of the 44 candidates who were called for interview are in the custody of the CRR (Centre for Policy Research) at New Delhi. It was also discussed at length as to whether it would be possible for the Home Secretary to sift the tainted and untainted candidates. It was also brought to the notice of the Home Secretary that the question paper was objective type where the candidates only had to indicate on the correct options. The file reveals that the investigation of the case has been completed, challan as well as supplementary challan submitted, charges framed and as many as 8 prosecution witnesses have been examined. It was brought to the notice of the Chair that the objective type paper carried 70 marks out of total 90 marks. In this situation, it would become virtually impossible for the CWP No. 6340 of 2009 -11- Home Secretary or any official to segregate the tainted candidates from the untainted candidates. This meeting was specifically called to probe the possibility of undertaking the exercise as directed by the Hon'ble CAT in their order dated 26 th September, 2008 . The discussion of this meeting may be brought to the notice of the Hon'ble Bench in the Hon'ble High Court by the Senior Standing Counsel when the matter comes up for further hearing. (Emphasis added) Sd/- Sd/- Sd/- (Alok Kumar, IPS) (Ram Niwas, IAS) (Sanjay Kaushal) DIG., Home Secretary Sr. Standing Counsel U.T., Chandigarh U.T. Chandigarh 13. It is pertinent to notice that out of 90 marks, 70 marks were allocated to objective type multiple choice answer and only 20 marks were assigned to Hindi essay paper. Mr. Sanjay Kaushal, has argued that order of the Tribunal in a way stand complied with because the Home Secretary has now opined that tainted cannot be segregated from untainted and the detail minutes of the meeting (Mark-'A') are now available. Moreover, the original answer sheet are in the custody of Centre for Policy Research at New Delhi. The original answer-sheet of Hindi essay paper have been made available to us for perusal. 14. After hearing learned counsel for the parties and keeping in view the nature of mal-practice involved, we are of the view that the Tribunal should have avoided passing of any such direction CWP No. 6340 of 2009 -12- because in an objective multiple choice question papers it is not possible to find any distinguishing mark on the answer sheet. A random look on the allegations would show that the accused like Joginder Dahiya and Sanjay Rana in connivance with one Shamsher Singh, have leaked the question paper and they have taken a large number of candidates in a coach at Karnal. It is not a case where a failed candidate or less meritorious candidate has influenced the result by securing the favours of the Selection Committee like Chairman, Punjab Public Service Commission in Inderpreet Singh Kahlon's case (supra) and on his turn the Chairman influenced the examiner to decrease or increase the marks by cutting. In the present case, there is wholesome mal-practice, which has made it impossible to identify the candidates who have leaked the paper and the others who did not have access. There is no intelligible mark on any of the answer sheet which might point a finger to a tainted candidate and help in segregation from the untainted candidate. Even the accused before the criminal Court are those who have sold the solved paper for huge amount and none of the candidates who might have purchased is named in the FIR. Therefore, the judgments of Hon'ble the Supreme Court on which reliance has been placed by the learned counsel for the applicant-respondents would be of no assistance to them. 15. In para 42 of the Judgment in Ashok Lenka's case (supra), the principles concerning en masse cancellation have been discussed in detail. It has been held by Hon'ble the Supreme Court CWP No. 6340 of 2009 -13- that it is permissible to cancel the entire selection process when it is found that the same is tainted to such an extent that it may not be possible to separate the innocent from the tainted ones. The example of mass cheating by the student in a Board Examination has been quoted. In the cases where selection process is carried out by more than one committees then the same principle may not be applicable because the sanctity of the examination or the selection process would not be vitiated at every committee. There may be a possibility of segregating the tainted from untainted. Therefore, it is patent that in the present case, it is not possible to find out as to how many candidates have access to the leaked question paper and how many of them did not have the leaked material. It has come on record that a number of candidates were carried in a coach at Karnal so as to be dropped the examination centre. Therefore, the principles annunciated in Ashok Lenka's case (supra) would not apply to the facts of the present case. Likewise, the facts in Inderpreet Singh Kahlon's case (supra) are also entirely different and therefore, no principle of that judgment would apply to the facts of the present case. In Inderpreet Singh Kahlon's case (supra), the majority of the officers named in the FIR belonged to 2001 batch. The respondent-State of Punjab not only cancelled the entire selection but on that basis also cancelled the process for the year 1998, which was not even the subject matter nor it had any recommendation against it. It was in that situation that certain directions were given. However, in the present case, the CWP No. 6340 of 2009 -14- sanctity of the whole examination, which was taken in one go, has been vitiated on account of serious segregation of leakage of question paper. 16. We are further of the view that in any case, the Home Secretary has clearly expressed that there was no possibility of separating the tainted from untainted candidates which is in a way compliance with the direction of the Tribunal. We have examined the answer sheet of Hindi paper and there is no intelligible or distinguishing mark, which may lead to identification of tainted or otherwise. 17. In view of the above, the order of the Tribunal is set aside. We find that it is not possible to segregate the tainted from untainted candidates. The cancellation of examination is upheld as the sanctity of the whole examination has been vitiated. The petitioners would be well within their rights to proceed with the selection process afresh. 18. The writ petitions are allowed and are disposed of in the aforementioned terms. The original record has been handed back to the learned counsel for the U.T. Administration. 19. A photocopy of this order be placed on the file of connected cases. (M.M. KUMAR) JUDGE (RITU BAHRI) March 8 , 2011 JUDGE Pkapoor/Atul