1. The batch of these writ petitions involve appointment of Group 'A' and Group 'B' Probationary Officers under the Karnataka Recruitment of Gazetted Probationers (Appointment by Competitive Examinations) Rules, 1997.

2. Writ Petitions No.13617-13627 & 14529/2017 are filed in public interest and Writ Petition No.11342/2017 is filed in private interest with a prayer inter alia to quash the common order dated 19.10.2016 passed by the Karnataka State Administrative Tribunal, Bangalore ('Administrative Tribunal' for short), in Applications No.6268/2014 to 6395/2014 c/w 6432/2014 to 6444/2014, 6446/2014 to 6459/2014, 6597/2014 & 6598/2014, 7464/2014, 7941/2014 to 7946/2014, 7950/2014 to 7966/2014, 7967/2014, 7968/2014, 7969/2014, 9112/2014 to 9126/2014, 9592/2014 to 9610/2014 and 8298/2015, whereby the Administrative Tribunal has directed the State Government to issue appointment orders to the applicants therein. 56

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3. The genesis of these cases dates back to issuance of notifications by the State Government on 29.3.2011, 25.4.2011, 4.10.2011 and 19.10.2011 to hold examination for the posts of Group-A and Group-B Officers as per the Karnataka Recruitment of Gazetted Probationers (Appointment by Competitive Examinations) Rules, 1997 ['1997 Rules' for short]. Pursuant thereto, the Karnataka Public Service Commission ('KPSC' for short) by notification dated 3.11.2011 invited applications for 352 posts. Subsequently, the number of posts were modified to 362 by the State Government vide communications dated 9.2.2012. Accordingly, amended notification was issued by the KPSC. Preliminary written examinations were conducted on 22.4.2012 and written (main) examinations were conducted between 15.12.2012 and 6.1.2013. The personality tests were conducted between 1.4.2013 and 27.5.2013.

4. On 24.5.2013, Dr. HPS Mythri, one of the candidates submitted a representation to the learned Advocate General 57 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 for Karnataka, alleging mal-practices in the selection process, stating inter alia that she had secured 1009 marks out of 1800 in the written examination, but she was awarded only 75 marks in viva-voce, whereas, a candidate in the same category, Supriya Banagar, who was her immediate competitor had secured only 937.5 marks in the written examination, but she was awarded 150 marks in viva-voce.

5. On 28.5.2013, Dr. Mythri, submitted another representation to the learned Advocate General stating that:

6. On 4.6.2013, the learned Advocate General gave his opinion as follows:

1. Withhold the list of selected candidates,

2. Direct a comprehensive inquiry/investigation into the allegations made against the entire process of selection including the conduct of written examinations and viva-voce through a credible investigating agency like the Central Bureau of Investigation.

3. Decide on acceptance or non-acceptance of the List on the basis of the outcome of such investigation and keeping in mind the above stated legal principles."

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7. The State Government, through the Deputy Secretary, DPAR, lodged a complaint with Vidhana Soudha Police Station on 22.6.2013 alleging commission of offences punishable under the provisions of Prevention of Corruption Act and Sections 34 , 120 , 120-B , 418 , 420 and 465 IPC, against 8 accused. In substance, it was alleged in the complaint that the selection process was vitiated and deserving candidates were not selected. An FIR was registered in Crime No.28/2013, wherein, Gonal Bheemappa, Chairman, KPSC, was arraigned as accused No.1 and another Member of KPSC, Mangala Sridhar, was arraigned as accused No.4. Three other officials working in KPSC, namely, Arunachalam, Sundar and Ashok Kumar, were arraigned as accused No.2, 3 and 5 respectively. Sudhir, working as Assistant Executive Engineer in Bengaluru Water Supply & Sewerage Board, Somnath, working as Executive Engineer in Bengaluru Development Authority and Rajashekar, an employee of Karnataka Government Secretariat were arraigned as accused No.6, 7 and 8 respectively.

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8. On 27.6.2013, the State Government ordered an investigation and entrusted the matter to the Criminal Investigation Department (Special Units and Economic Offences) ['CID' for short], headed by the Director General of Police. The CID, submitted an interim report to the Government on 10.9.2013.

9. The State Government, after going through the Interim report, issued an order dated 15.10.2013 annulling evaluation of written examination as also the personality tests, and called upon the KPSC to re-do the exercise from the stage of evaluation of performance in the written examination (main).

10. The KPSC, vide their communication dated 19.12.2013, took a stand that the order dated 15.10.2013, passed by the State Government, was without jurisdiction and non est. It went ahead with the selection process and published a provisional select list on 5.3.2014. After considering the objections received, KPSC published their 62 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 Final Select List on 21.3.2014 and gazetted it on 22.3.2014. As per Rule 11(2) of the 1997 Rules, KPSC delivered the Final Select List to the Government on 26.3.2014. This marked the end of selection process by the KPSC.

11. In April 2014, Dr. Mythri, filed an application before the Administrative Tribunal, challenging the final select list and obtained an ex-parte interim order, which stood vacated on 2.7.2014, with an observation that any decision taken by the State Government with regard to the Final Select List shall be subject to the result of her pending application before the Administrative Tribunal.

12. The CID, on 12.5.2014, filed its charge sheet against accused No.1, 2, 5, 6, 7 and 8 namely, Gonal Bheemappa, Arunachalam, Ashok Kumar, Sudeer @ Sridhar, Somanath @ Somesh Chickkamath and Rajashekhar respectively.

13. The State Government, by their order dated 14.8.2014, withdrew dated 9.3.2011, 25.4.2011, 63 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 4.10.2011, 19.10.2011 and 9.2.2012; and ordered for closure of recruitment process.

14. In the meanwhile, the State Government, appointed an Expert Committee headed by Shri P.C.Hota, IAS(Retd.), Former Chairman of Union Public Service Commission, to review the systems and procedures in the KPSC. The said Committee submitted its report on 20.8.2015, with its recommendations.

15. In 2014, successful candidates filed Applications No.6268-6395/2014 and connected cases before the Administrative Tribunal, inter alia with a prayer to quash the Government Order dated 14.8.2014 and to direct the State Government to issue appointment orders. State Government resisted those applications contending inter alia that in view of large scale irregularities such as manipulation in the process of recruitment, rampant corruption and nepotism by the Members of the KPSC and involvement of candidates as elucidated in the CID report dated 10.9.2013, the State Government had withdrawn the requisitions. 64

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16. The Administrative Tribunal, after hearing, has passed impugned common order and quashed Government Order dated 14.8.2014 and directed the State Government to issue appointment orders to the applicants.

17. We have heard Shri Udaya Holla, Shri M.B.Nargund, learned Senior Counsel and Shri Rahamathulla Kothwal, learned Counsel for the petitioners and Shri Aditya Sondhi, learned Additional Advocate General for the State Government, Shri P.S.Rajagopal, learned Senior Counsel for KPSC, Shri K.G.Raghavan, Shri Sajan Poovayya, Shri B.M.Shyam Prasad, learned Senior Advocates, Shri B.L.Acharaya, Shri B.M.Arun, Shri I.S.Pramod Chandra, Shri N.G.Phadke and Shri Vikram Phadke, learned Counsel for respective parties.

18. The arguments advanced on behalf of the petitioners may be summarised as follows:

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(ii) that, the State Government, on the advice of the learned Advocate General, directed an inquiry and investigation by the CID;

(iii) that, CID's preliminary report, has revealed large scale corruption and involvement of Members of the Selection Committee;

(iv) that, Dr. Mythri, did not succumb to the illegal offers, but, brought to the notice of the learned Advocate General, the state of affairs and sought redressal;

(v) that, Dr. Mythri, also filed an application before the Administrative Tribunal in Application No.2661/2014 and the same is still pending adjudication. However, without adjudicating her application, the Administrative Tribunal has allowed the applications filed by a batch of successful candidates. Therefore, she had no other alternative but to challenge the order passed by the Administrative Tribunal before this Court;

(vi) that, in view of Government Order dated 14.8.2014, the KPSC ought to have re-evaluated the answer scripts and held fresh viva voce. However, it did not comply with the said order, but went ahead with the selection process and notified 66 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 the list of selected candidates. Now, by the order impugned, directions have been given by the Administrative Tribunal to the State Government to issue appointment orders within a period of two months;

(vii) that, the interim report dated 10.9.2013, submitted by the CID, clearly suggests that there was large scale corruption and manipulation, which rightly persuaded the State Government to annul the evaluation process;

(viii) that, the Gazetted Probationer Officers hold executive power of the State and therefore, a candidate to be appointed for such post must not only be meritorious, but also a person of impeccable integrity. The CID report reveals that, the select list contains candidates who have indulged in serious mal-practices. Therefore, if the impugned order passed by the Administrative Tribunal is given effect to, the same shall result in appointing candidates selected for extraneous considerations;

(ix) that, the State Government, accepted the CID report and resisted the applications filed by the 67 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 selected candidates before the Administrative Tribunal, and

(x) that, the CID, after completion of investigation has filed the charge sheet (report under Section 173 of Cr.P.C.) before the jurisdictional Criminal Court.

19. With the above principal submissions, learned Counsel arguing in support of these writ petitions, contended that there is a strong element of public interest involved in these writ petitions and they are eminently maintainable. They prayed for quashing the impugned order passed by the Administrative Tribunal.

20. The arguments advanced by learned Senior Advocates S/Shri K.G.Raghavan, Sajan Poovayya, and B.M.Shyam Prasad, and Shri B.L.Acharya, learned Advocate, are summarised as follows:

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iii) Tainted candidates are not included in the charge sheet;

iv) CID report could not have been submitted to the Government but ought to have been filed in the Court only;

v) that, in the petitions filed by Smt.Renukambike and others, eight out of ten candidates did not qualify in the written test;

vi) that, the writ petition filed by Dr. Mythri, is clearly in the nature of a private interest, inasmuch as, she has challenged appointment of third respondent (Supriya Banagar), and prayed for a direction to the State Government to consider her case for appointment to the post of Assistant Commissioner (Revenue);

vii) that, Dr. Mythri, after participating in the selection process, submitted a complaint to the learned Advocate General on 25.4.2013 with bald allegations. Within next three days, she improved her case alleging that she was called to the chambers of a Member of the KPSC and offered the post, 69 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 on payment of illegal gratification. To substantiate her claim, she has quoted some telephone numbers. It is quite reasonable for anxious candidates to contact the concerned officials in the KPSC to know progress in the selection process. It is also arguable that, the officials may have returned a missed call from Dr. Mythri. Therefore, the entire case of Dr. Mythri is based on surmises and conjunctures;

viii) that, Dr. Mythri, has admittedly, approached the Administrative Tribunal in Application No.2661/2014. Therefore, she had an option to either press for disposal of her application or seek review of the impugned order;

ix) that, the State Administrative Tribunal is established as a substitute and appropriate forum for redressal of all service related matters. Therefore, a petition concerning a 'service matter' is not maintainable before the High Court. High Court is not a Court of Appeal to examine an order passed by the Administrative Tribunal;

WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017

x) that, the Administrative Tribunal being the Judicial Tribunal of first instance, has gone into every aspect of the matter in detail and delivered a considered judgment. The State has accepted the said judgement. The High Court, exercising its jurisdiction under Article 226 or 227 of the Constitution of India, can only examine the decision making process by the Administrative Tribunal. The petitioners have not demonstrated any perversity either in appreciation of facts or any infraction of law calling for interference by this Court;

xi) that, there is an urgent requirement of the Administrative Officers in the State;

xii) that, there is no indictment against any selected candidate by the CID. Therefore, they cannot be denied of their appointments.

With the above submissions, the learned Counsel for the respondents prayed for dismissal of these writ petitions.

21. Shri Aditya Sondhi, learned Additional Advocate General for the State, submitted that, the opinion tendered 71 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 by the Advocate General was discussed in the Cabinet. With regard to the selection process, he submitted that, about 46 candidates were contacted by or on behalf of members/officials of the KPSC. To a pointed query, with regard to laying of report before the Legislature in compliance with Article 323(2) of the Constitution of India, he submitted that, the report was tabled during February, 2017. He also submitted that, the State Government is seeking sanction from the President of India to prosecute KPSC members.

22. We have carefully considered the submissions of the learned Counsel for the parties and perused the records as also the authorities cited by the learned Counsel in support of their respective contentions.

23. The principal defence urged before us, by the respondents, is that, public interest litigation is not maintainable in service matters.

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24. In the conspectus of the facts recorded hereinabove, following questions arise for consideration of this Court:-

25. Re-point No.(i):

The grievance of the petitioners is that, entire selection process smacks of malafides. Although selection process culminates in appointment of officers, which according to the selected candidates is purely a service matter, the subtle and the real issue for consideration is the decision making process by the State Government while passing order dated 14.8.2014 withdrawing the reguisitions given to the KPSC to conduct selection process. 74

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c) We, therefore hold that, the issue in substance, either before the Administrative Tribunal or in these writ petitions are not 'stricto sensu' classifiable, purely as service matter.

26. Re-point No.(ii):

Under the federal structure, the State, in their eminent domain are enjoined with solemn duty to administer the State policies. The Part-VI of the Constitution deals with the State. Under Article 153 of the Constitution, each State shall have a Governor, who shall head the State and exercise the executive power upon the advice of the Council of Ministers as provided under Article 163 of the Constitution. The business of the Government is conducted under Article 166 of the Constitution. The recruitment and conditions of service of persons serving under the Union or the State are governed by Article 309 of the Constitution. It is no more res integra that, Civil Servants are limbs of the executive. [See Samsher Singh Vs. State of Punjab and 75 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 Another (1974) 2 SCC 831]. Unarguably, the case on hand pertains to appointment of Civil Servants. Appointment of ineligible, inefficient persons with questionable integrity shall have a serious and cascading adverse impact on the business of the Government, which shall inevitably result in mal-functioning. This is anathema of rule of law.

b) Duties and responsibilities of bureaucracy and need to appoint sensitive, devoted and professionally competent officers, fell for consideration before the Hon'ble Supreme Court of India in the case of Mehmood Alam Tariq and others Vs. State of Rajasthan and others reported in (1988)3 SCC 241. The Supreme Court, speaking through Hon'ble Mr.Justice M.N.Venkatachaliah (as he then was), has held as follows:

.... Recruiting civil servants means picking as many potential high flyers as possible - and at the same time as few potential albatrosses. It is a task carried out by the Civil Service Commission - with scrupulous honesty, but questionable efficiency. 77

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16. The history of the evolution of the civil services in some countries is in itself study in contrast as fascinating as it is disquieting. In France, until the Revolution almost every office, central or local, excepting the dozen or so of the highest offices were attainable only by private purchase, gift or inheritance. All public officers were treated as a species of private property and voluminous jurisprudence governed their transmission. Of this spectacle, a learned authority on Public Administration says:

Having perused and being satisfied with the CID report, the State Government vide order dated 15.10.2013 annulled the results of the 'mains examination' and 'viva voce'; and further directed re-evaluation of the answer scripts and fresh viva voce. The said order was not followed by the KPSC compelling the State Government to pass the impugned order dated 14.8.2014, withdrawing the requisitions.

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e) Public Service Commissions are established under Article 315 of the Constitution of India and their functions are regulated under Article 320 of the Constitution of India. Article 323(2) requires a State Public Service Commission to present its annual report to the Governor of the State. The Governor on receipt of such report, shall cause a copy thereof together with a memorandum explaining the causes, if any, where, the advice of the Commission is not accepted, the same shall be laid before the State Legislature. We are informed by Shri Aditya Sondhi, learned Additional Advocate General that the reasons for not accepting the select list was laid before the State Assembly during February 2017.

f) Thus, the central issue for consideration is legality and correctness of State Government's decision to accept CID report and reject the recommendation of Public Service Commission.

g) It is fairly well-settled that, it is the prerogative of the employer 'to appoint' or 'not to appoint' a candidate or 80 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 candidates against the notified posts. Unless, the order of appointment is communicated to the selected candidate, no right shall accrue to him. The State accepted the CID report and exercising their executive authority, rejected KPSC's recommendations. The reasons for not accepting the recommendations have been laid before the State Assembly. The matter should have ended there.

h) The Administrative Tribunal, in the impugned order at paragraph No.78, has accepted the legal principle that an applicant has no right of appointment.

i) The Administrative Tribunal chose to take it upon itself the task to examine as to whether there were any procedural irregularities in the CID report. In paragraph No.61 of the impugned order, it has recorded it's findings and held, firstly, that the CID has to submit its report to the jurisdictional Magistrate; secondly, that the inquiry is not in accordance with the dictionary meaning of 'enquiry' as defined in the Law Lexicon; thirdly, that no inquiry was held against the candidates; and fourthly, that the CID report is 81 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 one sided and there are many lacunae in the report; and that the report is not in accordance with the Rules. We record that the Administrative Tribunal has not adverted to infraction of any specific 'rule'. Nor any contention was urged in that behalf before us in these proceedings. The Administrative Tribunal has further held in paragraph No.66 of the impugned order that the CID report has no 'probative value' unless the same is proved in a 'trial' and that its findings could not have been taken as 'gospel truth'. With these observations, the Administrative Tribunal has directed the State Government to issue appointment orders to the applicants therein. This decision of the Administrative Tribunal, when translated into action, would result in appointment of Civil Servants whose selection by the KPSC has been seriously doubted by the State Government. Then the next question that would follow is, whether appointments of such candidates by virtue of judicial order by the Administrative Tribunal consists an element of public interest? The answer must be 'yes' because the State would be left with no option but to appoint the applicants in 82 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 compliance with the Administrative Tribunal's directions which is admittedly based on its opinion with regard to veracity of alleged mal-practices adopted in the selection process. Ultimately, it would result in appointment of Civil Servants whose selection process, according to the Executive had stood vitiated. Since this matter touches upon the appointment of bureaucrats in the State, it carries within itself an element of public interest. We, therefore, answer point No.(ii) in the affirmative.

(j) In W.Ps.No.13617-13627/2017 &W.P.No.14529/2017, the petitioners have filed I.A.No.3/2017, seeking leave of this Court to permit them to file and prosecute the said writ petitions in Public Interest.

(k) In W.P.No.11342/2017, petitioner has filed I.A.No.1/2017, seeking permission to file the said writ petition as the 3rd respondent filed an application in O.A.No.7941/2014, which is also disposed of by the impugned common order and the said order adversely affects her.

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(l) In view of our finding that, an element of public interest is involved in these cases, I.A.No.3/2017 in W.Ps.No.13617-13627/2017 & W.P.No.14529/2017 and I.A.No.1/2017 in W.P.No.11342/2017, are allowed and the applicants/petitioners therein are permitted to prosecute these writ petitions.

27. Re. Point No.(iii):

WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 Part-B deals with the allegations contained in the FIR, allegations levelled by the candidates who were examined during investigation, mal-practices observed in evaluation of examination(mains), mal-practices during the personality test and the conduct of the accused.

c) We were taken through following allegation contained in the FIR:

The call details of Mangala Sridhar's phone also records a call with Dr.Mythri.

Allegation No.(iii):

We may record that exchange of phone calls between employees working in the Water Supply Department and Bangalore Development Authority with members of Public Service Commission who hold Constitutional posts, is rather disturbing. Equally, exchange of 86 calls with one of the candidate is appalling. But it is amazing to note that the Administrative Tribunal, despite having such stark and disturbing facts before it, turned the other way. 87

WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 Allegation No.(iv):

It was submitted that as per the procedure followed in the KPSC, the members of the committee were required to award marks and affix their signature on each page after the interview. Those statements were required to be sealed and handed over to the Secretary, KPSC, for tabulation. It was urged on behalf of the petitioners that members of the committee awarded equal marks to candidates who appeared for viva-voce because, members did not make their respective objective assessment in respect of each candidate interviewed by them but collectively agreed and decided to award a particular number of marks to particular candidate. We are, persuaded to accept petitioners' argument, that unless members did agree to do so, for extraneous reasons, it is impossible that the marks awarded by five members would, exactly be the same without any variation. We say so 89 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 because, the CID investigation report, we have perused, reveals that all the 566 candidates listed therein have been awarded marks by all the members in this manner. Further, the theory of pre-determination and unison among the members is prima facie fortified by the statement of Gopal Krishna, Private Secretary to the Chairman, KPSC, recorded before the Magistrate, wherein he has stated that after the interviews on each day, the Chairman and Members were discussing the performance of candidates. His statement, thus provides a plausible answer as to how equal marks were awarded by all the members.

Allegation No.(vi):

28. Thus, in substance, in our view, the investigation report, prima facie reveals that:

29. History of Public Service Commission dates back to the recommendation made by Lee Commission in the year 1924, which recommended thus:

was thus set out by the Lee Commission of 1924:-

(Emphasis supplied) Ref: Commentary on the Government of India Act, 1935, by Sri N.Rajagopala Aiyangar, printed and published in 1937.

30. Civil Service in India originated from the time of establishment of East India Company and British Government in India. Initially, it was known as Covenanted Civil Services under the East India Company. In 1853, the Covenanted Civil Services were thrown open to general 92 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 competition to be called as 'Indian Civil Service'. In his report, in 1854, Lord Mecaulay, recommended that patronage based system of East India Company should be replaced by a permanent Civil Service based on merit. In his report, he recommended, "Henceforth, an appointment of Civil Service of the Company will not be a matter of favour, but a matter of right. He, who obtains such an appointment will owe it solely to his own abilities and industry". The report made it clear that only the best and brightest would do for the Indian Civil Service. (Source: Kulwant Kumar Kalsan Vs. State of Haryana 2015 SCC online P & H 7065)

31. It is, therefore, unarguable that selection for any public posts and particularly to the post of a Civil Servant through Public Service Commission can only be on merit through an unimpeachable selection process.

32. It is no more res integra that the selection made by Public Service Commission is only recommendatory in nature. Government may reject recommendations made by 93 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 Public Service Commission subject to compliance of Article 323(2) of Constitution of India.

33. Following authorities cited by Shri Udaya Holla are apt, wherein the Hon'ble Supreme Court has held as follows:

(Emphasis supplied)

c) In the case of Jatinder Kumar and Others Vs. State of Punjab and Others (1985) 1 SCC 122:

(Emphasis supplied)

d) In the case of Adarsh Shiksha Mahavidyalaya and others v. Subhash Rahangdale and others [(2012) 2 SCC 425]:

(Emphasis supplied)

e) In the case of State of Gujarat and another v. Justice R.A. Mehta(Retired) and others [(2013) 3 SCC 1]:

(Emphasis supplied)

f) In the case of Subramanian Swamy v. Manmohan Singh and another [(2012)3 SCC 64]:

(Emphasis supplied)

34. The principle contention urged by Sri P.S.Rajagopal, learned Senior Counsel for the KPSC and other respondents is that a public interest petition is not maintainable in a service matter. He heavily relied upon the authority in the 98 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 case of Dr.Duryodhan Sahu and others v. Jitendra Kumar Mishra and others [(1998) 7 SCC 273], wherein it is held as follows:

35. Learned Senior Counsel for KPSC placed reliance on the following authorities:

b) Charan Lal Sahu Vs. Giani Zail Singh and another [(1984) 1 SCC 390]; and

c) Durga Charan Rautray Vs. State of Orissa and another [(2012)12 SCC 513].

36. The first authority, Kushum Lata (supra), deals with locus standi of a public interest litigant. The second authority, Charan Lal Sahu (supra), deals with intentional mud-slinging in public interest litigation. The third authority, Durga Charan Rautray (supra), is on the point that once objection with regard to maintainability is upheld, it is not open to a Court to decide the matter on merits. In our view, none of these three cases apply to the facts of these cases. Learned Advocates for the private respondents also cited several judgments, which in our view, are not necessary for adjudication of these petitions.

37. The CID's investigation report, prima facie discloses that there are sufficient reasons to believe that the selection process was not inviolable. In the circumstances, the State 100 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 Government withdrew the requisition for selection of Civil Servants. Unless the decision making process by the State Government is satisfactorily proved to be arbitrary, capricious, or mala fide, it would be inappropriate for the Courts to impinge upon such decision.

38. It was also urged that the High Court can examine, only the legality and correctness of the judgment rendered by the Administrative Tribunal and cannot expand the scope. As noticed above, the Administrative Tribunal chose to take it upon itself to examine the facts of the case and substitute its opinion with the decision taken by the State Government in withdrawing the requisitions. The State Government, while defending their action before the Administrative Tribunal have averred thus:

5) when the process of viva voce for the Gazetted Probationer's Recruitment for 2011 batch were going on there were serious allegations against the then Chairman/Members, and other officials which were made known to the general public through some of the candidates and also through media in awarding marks in the viva voce. The State Government who is the appointing authority for Group-A & B posts could not be silent spectator. If the impugned decision was not taken, it would have been detrimental to public interest. The Public Service Commission is an 102 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 institution of utmost importance created by the constitution of India under Article 315. For the efficient functioning of a democracy, it is imperative that the public service commissions are manned by people of the highest skill and irreproachable integrity, so that the selections to various public posts can be immunized from all sorts of extraneous factors like political pressure or personal favoritism, corruption and are made solely on consideration of merit. However due to unfortunate events which unfolded in the recruitment process for the Gazetted Probationers, 2011 batch, there was a break down of the State Public Service Commission in the aforesaid recruitment, At this juncture, it is relevant to cite a decision of the Apex Court in the case where the Chairman and Members of the Public Service of Haryana were suspended. Extract of the judgment reported in (2009) 9 scc 378 ( Ram kumar Kashyap v. Union of India ) is reproduced herein.

15. In Ram Ashary Yadav (Dr.), Chairman, Bihar Public Service Commission, this Court discussed the role of the Members of the Public Service Commission's and made the following observations with regard to their duties and qualification: (scc p. 312, para 4) "4 keeping in line with the high expectations of their office and need to observe absolute integrity and impartiality in the exercise of their powers and duties, the Chairman and members of the Public Service Commission are required to be selected on basis of their merit, ability and suitability and they in turn are expected to be models themselves in their functioning. The Character and conduct of the Chairman and Members of the Commission, like Caesar's wife, must therefore be above board. They occupy a unique place and position and utmost objectivity in the performance of their duties and integrity and detachment are essential requirements expected from the Chairman and Members of the Public Service Commissions."

At para 34 of the same opinion, the court further stated; (scc p. 321) 103 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 "34. The credibility of the institution of a public Service Commission is founded upon the faith of the common man in its proper functioning. The fait would be eroded and confidence destroyed if it appears that the Chairman or the Members of the Commission act subjectively and not objectively or that their actions are suspect. Society expects honesty, integrity and complete objectivity from the Chairman and Members of the Commission. The Commission must act fairly, without any pressure or influence from any quarter, unbiased and impartially, so that the society does not lose confidence in the Commission. The high constitutional trustees, like the Chairman and Members of the Public Service Commission must forever remain vigilant and conscious of these necessary adjuncts."

6) Keeping in view the alleged irregularities, the State Government referred the matter to the CID to investigate vide Government order date 27/6/2013. The CID submitted its interim report after comprehensive investigation into the matter on the investigation of case in crime No.28/2013 under sections 34 , 120(B) , 418 , 420 , 465 , IPC and section 7 of the prevention of corruption Act, 1988. Copy of the interim report of the CID dated 10/09/2013 is marked as ANNEXURE- RI. The following conclusions have been arrived by the CID in the report, which is reproduced herein:

In the evaluation of mains answers scripts, starting from the selection of examiners apart from the list provide by the Universities / authorities for evaluation, conducting the evaluation process in tearing hurry: not calling evaluators of particular subject even when they 104 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 were available : overwriting of entries in the marks sheet of candidates during the course of tabulation/re- totaling: to suspicious communication between the evaluators and the candidates, the discrepancies and malpractices are glaring. Coupled with the above, the resultant variation in the marks allotted during the evaluation conducted by the KPSC and sample test evaluation by experts during investigation suggest that the entire exercise has been done to favour some undeserving candidates due to extraneous consideration at the cost of deserving and meritorious candidates. Therefore, it is felt that the process of evaluation of mains answer script has been conducted in unjust and unfair manner, thereby vitiating at entire process and as such the Mains Evaluation process may be conducted once again, after putting in place necessary guidelines and safeguards. The personality tests have been conducted even more indifferently, as if it was no more than a mere pretence, and the marks that had to be allotted were already pre-decided. The entire process of personality test is completely impaired by the systematic abuse by the Chairman and the Members, in furtherance of their reprehensible designs and dishonest intentions. The members are found to have conducted interviews as a mere formality and awarded predetermined marks later on after discussion. Except for two candidates, for all 1083 candidates all the members have entered the same marks. Apparently, some members have awarded marks to candidates even though they were not present at the time of interview. Therefore, the illegal manipulation in the process of personality test have rendered it completely unacceptable and untenable and as such the some may also be conducted again by persons other than the one ; who are involved in the present case. Apart from the above, the general procedure adopted by the KPSC, at every stage of the selection process of Gazetted Probationers seems to be impaired by glaring loop holes: which can always be exploited by unscrupulous elements. Hence, it is felt that the procedures being followed presently need to be reviewed and necessary changes incorporated."

7) It is submitted that the State Government have gone through the report and its contents, while accepting the findings and recommendations of the CID 105 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 report. It is further submitted that State Government constituted Committee headed by the Sri.P.C.Hota, IAS [retd.,] and his recommendations, have also been taken into consideration. The State Government had directed Cancellation of the result of the main examination as well as the viva-voce and further ordered revaluation of the answer scripts of the Main examination and to re-conduct the viva-voce. Thereafter the Respondent no.1 had issued the order dated 15/10/2013. The said order was subject matter of Application no.7690-7699 of 2013 and it is pending consideration.

Para (15) It is submitted that the impugned decision of the State Government is in terms of the rules and discretionary power which is vested and gist of the reasons are stated in the preamble portion of the impugned order. The State Government being the appointing authority has taken into consideration the relevant facts relating to valuation of answer scripts of the main examination and award of viva-voce marks which are highly arbitrary and which is prima-facie established in the CID report. The State Government is satisfied with the sufficiency of the materials collected so as to enable them to arrive at its satisfaction that the entire selection process was tainted in the Main Examination and Personality Test. The illegalities committed by the respective parties as held by the CID would go to the root of the matter which vitiate the entire selection/recruitment. It is further submitted that fraudulently obtained marks in the main examination and personality test could be legitimately treated as voidable at the option of the State Government. On the basis of such fraudulently obtained marks by the candidates, they cannot get any equity in his/her favour or any estoppels against the appointing authority/State Government. Thus, the decision of the State Government to nullify the process of recruitment of Gazetted Probationers for the year 2011 by withdrawing the process is in order."

(Emphasis supplied) 106 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017

39. It is pleaded by the State Government that, in the previous round of litigation, in Applications No.7690- 7699/2013, the Administrative Tribunal has held that the "situation was unprecedented and perhaps such situation had not arisen earlier in any other State". However, in the instant proceedings, the Administrative Tribunal fell in an error in not adhering to the 'doctrine of separation of powers'. This is manifest by the strongly worded comments contained in paragraph No.104 of the impugned order, which reads as follows:

(Emphasis supplied) 107 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017

40. The Administrative Tribunal, has not recorded any finding to show that the decision making process by the State Government is faulty in any manner except stating that, it is contrary to Rule 11(3) of 1997 Rules. The said Rule reads as follows:

(i) the Government together with the marks secured by each of the candidates in the written examination and personality test; and

(ii) each candidate whose name is included in such list. (3) Candidates whose names are included in the list prepared in accordance with the provisions of sub-rule (1) shall be considered for appointment to the vacancies notified in each of the services and groups of posts in the order in which their names appear in the list:

41. Rule 11(3) requires consideration of candidates, whose names are included in the Select List for appointment. The proviso to the Rule makes it clear that, no candidate shall be appointed unless the Government is satisfied, after such enquiry that the candidate is suitable for appointment. In the instant case, based on the CID report Government came to the conclusion that the selection process was vitiated. Consequently, Government's satisfaction with regard to suitability of candidates remained wanting. Therefore, Administrative Tribunal's finding that Government's decision is contrary to Rule 11(3), is unsustainable.

42. It has set aside State Government's decision to withdraw the requisitions by recording as follows in paragraphs No.109 to 114 of the impugned order:

43. In substance, the Administrative Tribunal has substituted its opinion with that of the State Government with regard to consideration of investigation report and the action taken thereon. This is impermissible in law.

44. Since the issue involves appointment of civil servants, we have also carefully examined the investigation report and recorded our findings supra. In substance, we have observed that the investigation report prima facie shows that the selection process was not free from interference.

45. In the light of facts recorded by the CID in it's investigation report, we are of the view that there is no 110 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 error in exercise of their powers under the transaction of business by the State Government in withdrawing the requisition given to the State Public Service Commission.

46. If the judicial pronouncement by the Administrative Tribunal is given effect to, it would compel the State Government to appoint candidates selected by a committee of questionable reputation.

47. It is well-settled that the Administrative Tribunal or the High Court while exercising power of judicial review is required to be extremely conscious of the scope of interference and the settled parameters. In the case of Tata Cellular vs. Union of India [(1994)6 SCC 651], the Hon'ble Supreme Court has held as follows:

WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:

The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind [(1991) 1 AC 696] , Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention."

48. The Administrative Tribunal could have examined the Government order dated 14.8.2014 only within the above parameters. The scope of interference even on evaluation of facts is also limited as held in paragraph 81 of Tata Cellular (supra), which reads as follows:

maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the 112 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. ............................"

(Emphasis supplied)

49. Exercise of restraint and adherence to strict self- imposed restriction is the hallmark of judicial review. In words of Lord Denning, the sacrosanct duty of Court is stated thus:

50. The parameters noticed in Tata Celluar supra, have not been answered by the Administrative Tribunal. It has not recorded any finding which would have otherwise justified the impugned order. To satisfy ourselves, we have 113 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 examined the aforementioned parameters qua the Government Order dated 14.8.2014.

• With regard to the first parameter of State Government having power to issue the order, we may record that, the State Government, being the employer, enjoy the power of discretion to either accept KPSC's recommendation or to reject the same, subject to laying the reasons before the Legislature.

• With regard to the second parameter namely error in law, having gone through the investigation report, we are of the view that, in the facts and circumstances of this case, there is no error in law in the decision making process by the State Government.

Though, we have noticed several irregularities in the selection process, as recorded in the investigation report, awarding pre-determined marks, in our view, was a sufficient circumstance for the State Government to withdraw the requisition. State Government, have also complied with the requirement of laying the reasons for rejection of advise tendered by 114 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 the KPSC before the Assembly. Hence, we hold that the State Government decision does not suffer from any legal infirmity. • With regard to the third parameter namely, breach of principles of natural justice, we see no infraction, as no right had accrued to the candidates prior to issuance of appointment orders. Therefore, no notice was necessary to the candidates.

• With regard to the fourth parameter namely, that a decision which a reasonable person could arrive at, we hold that the investigation report contains sufficient material to infer that the selection process had stood vitiated. In such circumstance, in our view, the decision taken by the State Government is not contrary to this parameter.

• With regard to the fifth parameter namely, the abuse of power, no material was placed before us nor any contention urged. At any rate, ground with regard to imputation of abuse of power by the Executive in the facts of this case is far too fragile to countenance. We say so because, firstly, 115 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 the action taken by the State Government in withdrawing the requisition is not directed against any individual and secondly, the Government have recorded reasons in their order.

51. We may also profitably notice that in the case of Heinz India Private Limited and another Vs. State of Uttar Pradesh and Others [(2012) 5 SCC 443], the scope and ambit of judicial review has been stated as follows:

64. There is almost complete unanimity on the principle that judicial review is not so much concerned with the decision itself as much with the decision- making process. (See Chief Constable of the North Wales Police v. Evans [(1982) 1 WLR 1155 : (1982) 3 All ER 141 (HL)] .) As a matter of fact, the juristic basis for such limitation on the exercise of the power of judicial review is that unless the restrictions on the power of the court are observed, the courts may themselves under the guise of preventing abuse of power, be guilty of usurping that power.

65. Frankfurter, J.'s note of caution in Trop v. Dulles [2 L Ed 2d 630 : 356 US 86 (1958)] is in this regard apposite when he said: (L Ed p. 653) "... All power is, in Madison's phrase, 'of an encroaching nature'. ... Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self- restraint."

66. That the court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the court does not supplant "the feel of the expert" by its own review, is also fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable basis on evidence and whether such findings are consistent with the laws of the land. (See Union of India v. S.B. Vohra [(2004) 2 SCC 150 : 2004 SCC (L&S) 363] , Shri Sitaram Sugar Co. Ltd. v. Union of India [( 1990) 3 SCC 223] and Thansingh Nathmal v. Supdt. of Taxes [AIR 1964 SC 1419] .) 117 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017

67. In Dharangadhra Chemical Works Ltd. v. State of Saurashtra [AIR 1957 SC 264] this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence. To the same effect is the view taken by this Court in Thansingh Nathmal case [AIR 1964 SC 1419] where this Court held that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed.

68. We may while parting with the discussion on the legal dimensions of judicial review refer to the following passage from Reid v. Secy. of State for Scotland [(1999) 2 AC 512 : (1999) 2 WLR 28 : (1999) 1 All ER 481 (HL)] which succinctly sums up the legal proposition that judicial review does not allow the court of review to examine the evidence with a view to forming its own opinion about the substantial merits of the case. (AC pp. 541 F-H and 542 A) "Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decisions itself it may be found to be perverse, or irrational or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision-maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in case of review, as distinct from an ordinary appeal, the court 118 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 may not set about forming its own preferred view of evidence."

(Emphasis supplied)

52. In the light of above discussion, we are of the considered view that, the Administrative Tribunal erred in substituting its opinion and therefore, the impugned judgment quashing State Government's decision to withdraw the is wholly unsustainable. Consequently, direction to the State Government to issue appointment orders to the selected candidates is also rendered unsustainable in law.

53. In W.Ps.No.13617-13672/2017 & W.P.No.14529/2017, it is averred that, the State Government have issued an Un- Official Note dated 17.3.2017 (Annexure-N), instructing the heads of the Departments to issue appointment orders to the selected candidates as per the Final Select List dated 21.3.2014 issued by the KPSC. It is also averred that the Director of Municipal Administration has issued appointment orders to as many as 18 selected candidates vide Official Memorandum dated 27.3.2017 (Annexure-O). The 119 WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017 Petitioners, have sought for quashing the said Un-Official Note as also the Official Memorandum issued by the Director of Municipal Administration.

54. The Administrative Tribunal has quashed Government Order dated 14.8.2014, withdrawing the issued to KPSC. We have held that, the said common order is unsustainable in law. As a natural corollary, all appointment orders issued pursuant to Final Select List dated 21.3.2014 issued by the KPSC, are unsustainable liable to be declared as illegal.

55. Resultantly, these writ petitions eminently deserve to be allowed and accordingly:

WPs No.13617-13627/2017 & WP No.14529/2017 c/w WP No.11342/2017

56. In view of disposal of these writ petitions, I.A.No.16/2017 (in W.Ps.No.13617-13627/2017 & 14529/2017) for impleadment, filed by the applicants claiming to be candidates in 2011 selection, does not survive for consideration and is accordingly disposed of.

57. Before parting with the case, we record our appreciation for the able assistance rendered by the learned Advocates, who appeared in these cases.

We make no order as to costs.

JUDGE cp*/Yn.