[2014] 8 S.C.R. 32

SECRETARY, TAMIL NADU PUBLIC SERVICE

COMMISSION

A.B. NATARAJAN & ORS. ETC. (Civil Appeal Nos.5877-5878 of 2014)

JUNE 30, 2014

[ANIL R. DAVE AND DIPAK MISRA, JJ.]

Service Law - Selection/ appointment - Posts for Group I C Service - A/legations that the candidates indulged in malpractice and grossly violated the instructions given in the question paper - Writ petition by respondent who had not made to the list of appointee, dismissed by the Single Judge of the High Court - However, appellate court set aside the D selection - Justification of - Held: Appellate Court justified by holding that all those candidates who had committed material irregularities could not be declared selected - Candidates committed serious irregularities in their answer books - By not following the instructions they did not act in a bona fide manner E - Violating instructions amounted to misconduct - Giving indication to the examiner about the identity of the candidate by writing their name, code or sign of religion cannot be permitted if one wants clean, fair and transparent process of selection - A/so it would mean that the candidate was so F careless that he did not read or bother about the instructions

- Such candidate cannot be expected to be a good officer that too Class I officer - As regards, allegation with regard to nonjoinder of selected candidates or even the State there is no substance.

The Tamil Nadu Public Service Commission invited applications for direct recruitment to Group I Services.

After examination and interview, a final select list was prepared. The applicants who could not make it to the final

SECRETARY, TAMIL NADU PUBLIC SERVICE 33 COMM. v. A.B. NATARAJAN

select list, filed writ petitions alleging certain irregularities and malpractice in the conduct of examination .. The Single Judge of the High Court dismissed the petitions. The appellate court held that there were material irregularities committed by the candidates while answering the questions by violating the instructions given to the candidates. The Division Bench allowed the appeals and directed that the final list prepared by the Commission be modified. Hence, the instant appeals.

Dismissing the appeals, the Court

HELD: 1.1. Serious irregularities had been committed by the candidates in their answer books. If one looks at the instructions, which had been given to the candidates for writing the answer books, it is clear that they had been informed in unequivocal terms that they had to use only blue, blue-black or black ink and they were supposed to use only fountain pen, steel pen or ballpoint pen. In spite of the said instructions, several candidates had used sketch pens, pencils and pens or pencils with different colours. Use of different colours or pencil could have given some indication to the examiner about the identity of the candidate. These facts clearly show that either the candidates were absolutely careless or they wanted ta give some indication with regard to themselves to the examiner. If a candidate writes his answer book giving some indication with regard to himself with the help of a different ink or pencil-other than the prescribed writing instrument and the colour of ink, one can definitely presume that the candidate did not act in a bona fide manner. [Para 13] [41-C-F]

1.2. There was a specific direction that the candidates had to start writing the answer books from the first page and no page should be left blank. In spite of the said clear instruction, several candidates kept several pages blank and what is most astonishing is that some of the

A candidates, after keeping the entire page blank i.e. without answering the question had written some

irrelevant words or names. [Para 14] [41-F-G]

1.3. Many of the candidates had given some

8 indication with regard to some religion by writing the words or signs connected with a particular religion. A candidate is not supposed to give his identity or any indication with regard to himself in the answer books. If he does so, he is violating the instructions given to him C which would amount to nothing but misconduct. [Para 15]

[42-B]

1.4. In all competitive examinations, an effort is always made to see that the answer books are examined impartially and without any bias. An effort is always made D to see that identity of the candidate is not revealed to the person examining the answer books so as to see that the identity i.e. the name or roll number of the candidate is not revealed. A code number is given to each answer book. The roll number given to the candidate is normally E replaced by another number so that even the examiner may not know the correct roll number of the candidate.

This is done so as to remove the possibility of giving any indication by anyone to the examiner about the identity of the candidate. Upon completion of the examination F work, original roll number of the candidate is put on the answer book or on the sheet prepared for the purpose of assigning marks, but in any case, the examiners are not permitted to know anything about the candidate or his identity. [Para 16] [42-C-F]

1.5. If the candidates start giving indications with regard to themselves by writing their name or some code word or some indication with an intention to convey the same to an examiner, so that he may have some undue favour, is a thing which is not approved. If such an

SECRETARY, TAMIL NADU PUBLIC SERVICE 35 COMM. v. A.B. NATARAJAN

attempt is permitted to be made, sanctity of the A examination work would not be maintained. The entire object behind giving code number etc. would be frustrated if all these things are permitted or tolerated. [Para 17] [42-F-G]

1.6. Normally, a straightforward candidate, wo does B

not want to indulge in any malpractice, would never make any effort to reveal his identity or make any special marking in his answer book. The purpose behind doing something abnormal or something which is not permitted, can be said to be an indication to the examiner C about the identity of the candidate. Such an action on the part of the candidate cannot be tolerated if one wants clean, fair and transparent process of selection. [Para 18]

[42-H; 43-A-B] D

1.7. In the instant case, it is an admitted fact that there were serious violations of the instructions given to the candidates while answering the questions. Although all these details were placed before the Single Judge, the Single Judge did not give importance to these

irregularities and dismissed the petitions, but when the appeals were filed, the Division Bench of the High Court rightly understood the importance of such irregulari.ties and allowed the appeals by setting aside the selection of the candidates who had committed such irregularities while writing their answer books. If such a strict view is not taken by a constitutional body which has been entrusted with the work of selecting best candidates, the entire purpose behind having the Commission or any other such body for examining merit of candidates would be frustrated. The appellate Court was absolutely justified G in allowing the appeals and by holding that all those candidates who had committed material irregularities could not be declared selected. [Para 19] [43-C-F]

A 1.8. The candidates who had applied for Class-I post, if selected, were to be Class-I Officers of the State of Tamil Nadu. Not following the instructions given to them while appearing in the examination, which had been conducted for their selection, would either mean that they were so B careless that they did not read or bother about the instructions to be followed or they wanted to give some indication to the examiner about their identity. In either case, such a candidate cannot be selected. A candidate, who is so careless that he does not bother about his own C interest, cannot be expected to become a good officer.

Interest of the candidate is to get through the examination and for that purpose he has to follow the instructions. By not following the instructions, he does not take care of his own interest. So, if he had written the answer books

0 carelessly without bothering about the instructions given to him, he is a careless person who must not be appointed as an officer and if he has done it deliberately, then also he should not be appointed as an officer because one who plans such illegalities even before joining his service, cannot be expected to become a fair .

E and straightforward officer. So, in either case, such a candidate cannot be selected for appointment as an officer and that too a Class-I Officer of any State. Further, there is no substance in the allegations with regard to non-joinder of selected candidates or even the State of F Tamil Nadu. The impugned judgment is just and proper and does not deserve any interference. [Paras 12, 20 and

21] [44-C-G; 41-8]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.

G 5877-5878 of 2014.

From the Judgment and Order dated 04.03.2011 in W.A No. 1063/2009, W.A No. 1287/2009 of the High Court of Madras.

SECRETARY, TAMIL NADU PUBLIC SERVICE

COMM. v. A.B. NATARAJAN

WITH

C.A. Nos. 5879, 5880-5881, 5882-5883 & 5884 of 2014. '

K. Parasaran, Rakesh Dwivedi, P.S. Patwalia, V.

Balachandran, Subramonium Prasad, M: Yogesh Kanna, Niraimati, V.G.

Pragasam, S.J. Arfototle, Prabhu B Ramasubramanian, Jayanth Muth Raj, Malavika J., Sureshan P. for the Appellant. ·

A. Mariarputham, B. Adinarayana Rao, T. Anamika, B.V.

Chandan, N. Subramanyan, A. Chandramohan, Subramonium c Prasad, B. Balaji, R. Rakesh Sharma, Meha, C.K. Sasi for the Respondents.

The Judgment of the Court was delivered by

ANIL R. DAVE, J. 1. Leave granted.

2. As all these appeals have been filed against a common judgment dated 4th March, 2011, delivered by the High Court

of Judicature at Madras in Writ Appeal Nos.1063 and 1287 of 2009, they have been heard together and decided by this E common judgment.

3. The facts giving rise to the present litigation in a nutshell are as follows.

The Tamil Nadu Pub1ic Service Commission (hereinafter F referred to as 'the Commission') had issued an advertisement on 27th December, 2000, inviting applications for 95 posts for Group I Services. Subsequently, the vacancies had been decreased and it was notified that in all 91 vacancies had to be filled up.

4. In pursuance of the aforesaid advertisement, several candidates had submitted their applications and ultimately they had also appeared in the preliminary examination. The candidates who had been declared qualified in the preliminary H

examination were asked to appear in the main written examination. Subsequently, oral interviews had been conducted of the candidates who were selected in the main examination and thereafter a final select list had been prepared by the Commission.

5. Writ petitions had been filed in the Madras High Court contending that the scaling technique was not properly applied by the Commission and certain irregularities had been committed in the examination. There were amendments in the petitions and subsequently it was also alleged that there were some malpractices and a prayer was made to the effect that the Central Bureau of Investigation should be directed to look into the matter.

6. When the petitions were heard by the learned Single Judge of the High Court, an advocate was appointed as the Court Commissioner to look into the alleged irregularities and in pursuance thereof a report had been submitted by the learned advocate. Once again, another advocate was appointed as the Court Commissioner to look into the allegations and inspect the answer books to find out whether the instructions given to the candidates had been strictly adhered to while answering the question papers. A report was also submitted by the other learned advocate. Both the reports had been considered by the learned Single Judge and ultimately the learned Single Judge had dismissed the petitions.

Being aggrieved by dismissal of the petitions, appeals had been filed before the Division Bench of the High Court, which had been heard at length. After hearing the learned counsel appearing for the parties, the appeals had been allowed by a common judgment, which has been challenged in these appeals.

7. The appellate Court came to the conclusion that there were material irregularities committed by the candidates while answering the questions. Several instructions given to the candidates had been grossly violated by the candidates.

Details with regard to the irregalarities committed by the A candidates, which could have resulted into malpractices, have been detailed ~Y the appellate Court in the impugned judgment.

8. Upon perusal of the judgment it is clear that most of the candidates had not adhered to the instructions given lo them, which were to be followed while answering the questions. The candidates had made several unwarranted indications or markings in their answer books, which ought not to have been made .by them. Though use of coloured pens had been prohibited, several candidates had used colours other than blue, C blue-black and black, which were the only permissible colours.

Use of pencil was not permitted and yet pencil markings were made by several candidates. Several candidates had given different indications by putting certain religious syll?bols.

Moreover, certain pages of answer books were deliberately kept blank though they were supposed to write on each page.

D All these indications given by the candidates, which were not called for, were considered very seriously by the Division Bench of the High Court and after referring to all these irregularities, the Division Bench had allowed the appeals.

9. The learned counsel appearing for the appellants, namely, the Commission and the selected candidates, had mainly submitted that the Division Bench had exceeded its jurisdiction and had violated not only the principles of natural justice, but had also decided the appeals, though all the F selected candidates were not before the Court. It had also been submitted that use of colours other than the colours prescribed in the instructions given to the candidates or use of pencil was not very serious. Moreover, giving an indication with regard to any religion should not have been taken seriously by the G appellate Court. It had also been submitted that proper notice had not been effected upon all the selected candidates and therefore, also the appellate Court was not right in allowing the appeals. It had also been alleged that the State of Tamil Nadu, the appointing authority, had not been impleaded as a party H

A respondent at the time when the petitions haa been filed,

though the State of Tamil Nadu was a necessary party. For the aforestated reasons, it had been submitted by the learned counsel appearing for the appellants that the impugned judgment deserved to be quashed and set aside. The learned B counsel had also supported their submissions with certain judgments delivered by this Court.

10.~0n the other hand, it had been submitted by the learned counsel appearing for the respondents, mainly C appearing for the candidates who had not been declared successful, that the appeals deserved dismissal for the reason that the appellate Court had duly considered all relevant facts and had come to a clear finding that serious irregularities had been committed by the candidates which might have given rise to serious malpractices and therefore, the final select list D prepared by the Commission had been rightly ordered to be modified by the High Court. It had been further submitted that a clear indication was given in the order of appointment that appointments of all the selected candidates were subject to final outcome of the writ petition which had been filed in the High E Court. Moreover, not only notices had been issued to the selected candidates, pendency of the litigation had been duly advertised so as to enable the selected candidates to appear before the Court, but for the reasons best known to the concerned candidates, they did not appear before the High F Court and ultimately the appellate Court had passed the impugned judgment. In the circumstances, they must thank themselves for their non-appearance before the Court. It had also been submitted that initially the State of Tamil Nadu had not been joined for the reason that the entire selection process G had been challenged and the selection process had been conducted by the Commission and not by the State. The learned counsel had also supported their submissions with certain judgments delivered by this Court. For the aforestated reasons, the learned counsel appearing tbr the respondents had

submitted that the impugned judgment is just and proper and A the appeals deserved dismissal.

11. We had heard the learned counsel at length and had also considered the judgments cited by them.

12. Upon hearing the learned counsel and considering the 8

facts of the case, in our opinion, the impugned judgment is just and proper and does not deserve any interference.

13. It is an admitted fact that serious irregularities had been committed by the candidates in their answer books. If one looks c at the instructions, which had been given to the candidates for writing the answer books, it is clear that they had been informed in unequivocal terms that they had to use only blue, blue-black or black ink and they were supposed to use only fountain pen, steel pen or ballpoint pen. In spite of the said instructions, o several candidates had used sketch pens, pencils and pens or pencils with different colours. Use of different colours or pencil could have given some indication to the examiner about the identity of the candidate. These facts clearly show that either the candidates were absolutely careless or they wanted to give E some indication with regard to themselves to the examiner. If a candidate writes his answer book giving some indication with regard to himself with the help of a different ink or pencil - other than the prescribed writing instrument and the colour of ink, one can definitely presume that the candidate did not act in a bona fide manner.

14. There was a specific direction that the candidates had to start writing the answer books from the first page and no page should be left blank. In spite of the said clear instruction, several candidates kept several pages blank and what is most G astonishing is that some of the candidates, after keeping the entire page blank i.~. without answering the question had written some irrelevant words or names. As for example, in one case on the entire page 'MANI' was written. This is nothing but H

some indication to the examiner, which is definitely not permitted.

15. Many of the candidates had given some indication with regard to some religion by writing the words or signs connected with a particular religion. A candidate is not supposed to give

his identity or any indication with regard to hirnself in the answer books. If he does so, he is violating the instructions given to him which would amount to nothing but misconduct.

16. In all competitive examinations, an effort. is always C made to see that the answer books are examined impartially and without any bias. An effort is always made to see that identity of the candidate is not revealed to the person examining the answer books so as to see that the identity i.e. the name or roll number of the candidate is not revealed. A code number D is given to each answer book. The roll number given to the candidate is normally replaced by another number so that even the examiner may not know the correct roll number of the candidate. This is done so as to remove the possibility of giving any indication by anyone to the examiner about the identity of E the candidate. Upon completion of the examination work, original rdll number of the candidate is put on the answer book or on the sheet prepared for the purpose of assigning marks, but in arif case, the examiners are not permitted to know anything about the candidate or his identity.

17. If the candidates start giving indications with regard to themselves by writing their name or some code word or some indication with an intention to cc; mvey the same to an examiner: so that he may have some undye favour, is a thing which is not approved. If such an attempt is permitted to be made, sanctity of the examinatior-i work would not be maintained. The entire object behind giving code number etc. would be frustrated if all these things are permitted or tolerated.

18. Normally, a straightforward candidate, .who does not want to indulge in any malpractice, would never make any effort

to reveal his identity or make any special marking in his answer A book. The purpose behind doing something abnormal or something which is not permitted, can be said to be an indication to the exar; niner about the identity of the candidate.

Such an action on the part of the candidate cannot be tolerated

if one wants clean, fair and transparent process of selection.

19. In the instant case, it is an admitted fact that there were serious violations of the instructions given to the candidates while answering the questions. Although all these details were placed before the learned Single Judge, the learned Single C Judge did not give importance to these irregularities and dismissed the petitions, but when the appeals were filed, in our opinion, the Division Bench of the High Court rightly understood the importance of such irregularities and allowed the appeals by setting aside the selection of the candidates who had D committed such irregularities while writing their answer books.

We are of the view that if such a strict view is not taken by a constitutional body which has been entrusted with the work of selecting best candidates, the entire purpose behind having the Commission or any other such body for examining merit of candidates would be frustrated. We are, therefore, of the view E ttiat the appellate Court was absolutely justified in allowing the

appeals and by holding that all those candidates who had committed material irregularities could not be declared selected.,

20. Several allegations had been made with-regard to the F procedural aspect. It had been submitted that all the selected candidates had not been joined as respondents and even the State of Tamil Nadu had not been joined as a respondent initially. Initially only one petition had been filed when the result had not been declared and it was also not possible for the G petitioners to join all selected candidates. Subsequently, an advertisement had been given in the newspapers giving indication about the pendency of the petition so as to enable the selected candidates to appear before the Court. Moreover,

A the appointment letters gave an indication of the fact that a

litigation challenging their appointment was pending in the High Court. In spite of the aforesaid fact being stated in the appointment order and the advertisement, if selected candidates did not bother to appear before the Court, by no B stretch of imagination, it can be said that the selected candidates were not given an opportunity to represent their case. V'{e, therefore, do not find any substance in the allegations with regard to non-joinder of selected candidates or even the State of Tamil Nadu. c

21. The candidates who had applied for Class-I post, if selected, were to be Class-I Officers of the State of Tamil Nadu.

Not following the instructions given to them while appearing in the examination, which had been conducted for their selection, would either mean that they were so careless that they did not D read or bother about the instructions to be followed or they wanted to give some indication to the examiner about their identity. In either case, such a candidate can not be selected.

A candidate, who is so careless that he does not bother about

his own interest, cannot be expected to become a good officer.

Interest of the candidate is to get through the examination and for that purpose he has to follow the instructions. By not following the instructions, he does not take care of his own interest. So, if he has written the answer books carelessly without bothering about the instructions given to him, he is a careless person who must not be appointed as an officer and if he has done it deliberately, then also he should not be appointed as an officer because one who plans such illegalities even before joining his service, cannot be expected to become a fair and straightforward officer. So, in either case, such a candidate G cannot be selected for appointment as an officer and that. too a Class-I Officer of any State.

22. For the reasons recorded hereinabove, we are of the view that the Division Bench of the High Court was justified in

delivering the impugned common judgment. The law A propounded in the judgments referred to by the counsel for the appellants cannot be disputed, but looking at the facts of the instant case, we are of the view that the said judgments would be of no help to them.

23. In the circumstances, the appeals are dismissed with no order as to costs.

Nidhi Jain Appeals dismissed.