JUDGMENT B.S. Chauhan, J.
1. All these five Special Appeals have been filed against the common judgment and order of the learned Single Judge dated 25.05.2006, by which large number of writ petitions have been disposed of.
2. The facts and circumstances giving rise to all these Special Appeals are that the new District Kaushambi was carved out from District Allahabad and in District Judgeship Kaushambi, appointments were made on various posts including the posts of Driver, Stenographer in 1998 and 1999. Subsequently, appointments were made on the post of Clerks on 15.01.2001 for a period of three months on ad hoc basis. While making ad hoc appointments for a period of three months, neither the advertisement was issued inviting applications nor names had been requisitioned from the Employment Exchange. There had been no extension of the services of such ad hoc appointees. However, persons appointed for three months vide order dated 15.01.2001 continued to serve for a period of about two years. The District Judge sought permission from the High Court for extension of their services and also for regularization of those persons who had completed three years, vide letter dated 11.12.2002. The Court vide letter dated 01.05.2003 pointed out that no ad hoc appointment would be made nor the period of services of ad hoc appointees would be extended. However, if the ad hoc appointees had been continuing for a long period and regularization is permissible in accordance with the Rules, their cases may be considered. The Court further directed to fill up the then existing vacancies by making regular appointments in accordance with law. In pursuance of the said letter, the services of ad hoc appointees were terminated vide order dated 20.05.2003. The said termination order was challenged by filing Civil Misc. Writ Petition No. 23939 of 2003 before this Court and an interim relief was granted keeping the order of termination dated 20.05.2003 in abeyance, vide order dated 28.05.2003. The said order stood modified by this Court vide order dated 09.07.2003 issuing directions to fill up vacancies by regular selection and the persons working on ad hoc basis were also permitted to participate in the regular selection. For filling up four posts of Stenographers and 19 posts of Clerks on regular basis, an advertisement dated 28.05.2003 was issued. The appointments were to be made under the provisions of the U.P. Subordinate Civil Court Ministerial Establishment Rules, 1947, which provided, for the post of Stenographers, that a candidate must possess the qualification of Intermediate or equivalent examination, Hindi Shorthand speed of 100 words per minute, Hindi Typing speed of 35 words per minute. The knowledge of English Shorthand and English typing was prescribed as an additional qualification. The candidates were also required to possess Diploma or certificate in Hindi Shorthand and Hindi Typing from a recognized institution. For the post of Clerks, minimum qualification was Intermediate or equivalent examination, Hindi and English Typing knowledge was prescribed as an additional qualification. A large number of candidates appeared in the examination and the result was declared on 29th September, 2004. Appointments were made of some of the appellants herein. The said selection was challenged by some unsuccessful candidates including some of the ad hoc appointees, who were continuing in services under the interim order of the Court and had participated in the regular selection, on large number of grounds, and particularly, that there had been no proper examinations; selection stood vitiated because of the illegality and fraud played by the Appointing Authority; answer sheets were not examined properly; if a question carried maximum 10 marks, candidates had been awarded more than 10 marks in that question. Considering the seriousness of the allegations made in the writ petitions, the learned Single Judge summoned the original records, i.e. answer books of the selected candidates and also called the Appointing Authority, i.e. the then District Judge and also the Additional District Judge, who was one of the Members of the Selection Committee. The learned Single Judge took pain to examine the answer sheets and the District Judge, i.e. the Appointing Authority and the Additional District Judge, Member of the Selection Committee were asked to explain their conduct and furnish an explanation as to how such discrepancies and that too on such a large scale, occurred. No satisfactory explanation could be furnished by either of them. The successful candidates, who were duly represented by their Counsel, were also asked to verify the discrepancies, which were apparent on the face of the record and after giving opportunity of hearing to all concerned including the ad hoc appointees, who had challenged the termination order and were seeking regularization, the learned Single Judge disposed of all the writ petitions recording large number of findings of fact including the following:
I. The answer to a particular question had been scored out, yet marks had been awarded on that question.
II. The answers given by the candidates made absolutely no sense but even then marks had been awarded.
III. There were serious discrepancies in the grand total recorded on the first page of the answer sheets and no explanation could be furnished either by the Appointing Authority, the then District Judge or by Member of the Selection Committee for the same.
IV. In some of the copies, marks on particular questions have been awarded double the maximum marks, fixed for the said question.
V. In some of the copies, marks were awarded twice or thrice subsequently, scoring out the initially given marks.
VI. In some of the answer sheets, marks had been awarded in double digits and both the digits had been written in different inks. For example, if 11 marks had been awarded, both figure '1' were found in different inks. The explanation furnished by the Member of the Selection Committee had been that the ink of the Pen might have dried up after recording of the first digit.
VII. Marks in answer sheets had been awarded in different inks. In one case, the total marks was 137 out of 300, however, his grand total had been shown as 146 out of 300 and he stood selected.
VIII. Total number of marks recorded in the first page did not tally with the total marks secured by the candidates, if calculated correctly.
IX. Shorthand answer sheets had been examined without noticing any mistake/error, whatsoever.
X. In one case, zero mark had been given in respect of Shorthand and Typing test, however, figure V was added before the digit 'zero' and while preparing the result, 50 marks in that respect had been taken into consideration and that too without noticing any error therein.
XI. In many cases, candidates had disclosed their identity, in full, while answering the questions. Large number of such candidates, i.e. 800 had been disqualified for disclosing their identities but in some cases not only the answer sheets had been examined but such candidates also stood selected.
XII. In case of some candidates, questions had been assessed giving zero mark, subsequently the digit 'one' had been added in a different ink before the figure 'zero' making it 10 marks though the answers given by the candidate did not make any sense. No explanation could be furnished, either by the then District Judge or the Member of the Selection Committee on such illegalities/irregularities.
XIII. In one copy, five grand totals have been recorded on the first page of the answer sheets and subsequently, two totals had been scored out. No explanation could be furnished for the same either by the then Appointing Authority, or by the Member of the Selection Committee.
XIV. Similar discrepancies were found in the case of answer sheets of Clerks, as in some cases where the candidates even did not make an attempt to solve a large number of questions, full marks, i.e. 50 out of 50 had been awarded.
XV. Where the maximum marks to a particular question were 10, candidates had been awarded 12 or 15 marks.
XVI. In some cases, questions had been answered in different handwritings in different inks scoring out the earlier answers. The scored out answers were admittedly incorrect.
XVII. In some cases, lesser marks had been awarded scoring out the initially awarded marks. No explanation could be furnished by the then Appointing Authority or the Member of the Selection Committee for such an illegality.
XVIII. In one case, the same questions had been answered twice and 50 marks were awarded for that but subsequently, marks stood reduced to 35. No explanation could be furnished for the same.
XIX. In some cases, marks given had been subsequently enhanced by adding some more marks and the explanation furnished by the then Appointing Authority was that re-evaluation was done though he could not furnish any explanation as to who had made the re-evaluation and as to whether re-evaluation was permissible.
XX. In some cases, zero mark had been awarded to a particular question while the answer given by the candidate was correct.
XXI. There were serious interpolations in some of the answer sheets, as answers had been given in different hand-writing and in different inks.
3. All these Special Appeals have been filed challenging the aforesaid findings of fact. Special Appeal No. 614 of 2006 has been filed by the 17 selected candidates for the post of Clerks, whose appointments have been quashed by the learned Single Judge holding that there had been irregularity in awarding marks to them. Special Appeal No. 615 of 2006 has been filed by three duly selected candidates, whose appointment orders have been quashed by the learned Single Judge, though recording a finding of fact that there has been no irregularity or illegality in awarding the marks to them. But as there was irregularity of a very high magnitude, their appointments could not be saved. Special Appeal No. 616 of 2006 has been filed by the Stenographers, whose appointments have been quashed by the impugned judgment and order. Special Appeal No. 640 of 2006 has been filed by the then District Judge upon whom a cost of Rs. 25,000/- has been imposed. A cost of Rs. 25,000/- was also imposed upon the Chairman of the Selection Committee, but he has not filed any appeal against the said order. Special Appeal No. 730 of 2006 has been filed by an ad hoc appointee whose claim for regularisation is also to be considered.
4. Shri Ravi Kiran Jain and Shri R.N. Singh, learned Senior Counsel duly assisted by Shri A.K. Gupta and Shri Shailendra, appearing for the appellants have vehemently submitted that irregularities and illegalities were not of such a nature or of magnitude which could warrant the quashing of the entire selection; where the learned Single Judge recorded a finding of fact, at least in case of appellants in Special Appeal No. 615 of 2006, that there had been no irregularity, their appointments could not have been quashed. In the case of one of the appellants, i.e. a selected candidate, the grand total of marks were lesser than the actual marks awarded to him. The learned Single Judge had examined the original records of selection but had not given an opportunity of hearing to the candidates individually or their counsel to verify the facts of such irregularity. The impugned judgment and order, being in violation of principles of natural justice, is liable to be set aside.
5. Shri Gajendra Pratap Singh, learned Counsel appearing for the appellant in Special Appeal No. 640 of 2006, has submitted that the appellant, the then District Judge, Appointing Authority had constituted a Selection Committee headed by one of the Additional District Judges and, therefore, he could not be held exclusively responsible for any irregularity and there was no justification for imposing the cost upon him. Thus, it is liable to be set aside.
6. Shri V.S. Sinha, learned Counsel appearing in Special Appeal No. 730 of 2006, has submitted that as the appellant had been offered ad hoc appointment and he continued for a long period, he was entitled to be considered for regularisation and the impugned judgment and order suffered from serious infirmities In law and, deserves to be set aside.
7. Shri Yashwant Verma, learned Counsel appearing for the High Court and Shri C.K. Rai, learned Standing Counsel appearing for the respondents/State, have vehemently opposed these Special Appeals contending that in case of mass irregularities of such a high magnitude, where it is not possible to find out as which candidate could have passed, the entire selection stands vitiated. In such an eventuality, once it is proved that there were irregularities of this nature, principles of natural justice are not attracted. However, in the instant case, opportunity had been given to the counsels duly representing the appellants to check the answer sheets etc. The appeals lack merit and are liable to be dismissed.
8. We have considered the rival submissions made by learned Counsel for the parties and perused the material on record.
Special Appeals No. 614 of 2006, 615 of 2006 and 616 of 2006
9. These Special Appeals involve the same controversy and are taken together.
10. The basic contentions raised herein had been that irregularity was not of such a grave magnitude which could warrant quashing of the entire selection. At least the appellants in Special Appeal No. 615 of 2006 were entitled for an appointment as no irregularity had been found in their answer books. None of the learned Counsel appearing for the appellants in any of these cases, have raised the grievance regarding the findings of fact recorded by learned Single Judge, referred to hereinabove.
11. The Hon'ble Supreme Court in Smt. Shrisht Dhawan v. Shaw Brothers observed as follows:
Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence....It has been identified as an act of trickery or deceit. In Webster fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Oxford, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice....
From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true.
12. In Lazarus Estates Ltd. v. Beasley (1956) 1 ALL ER 341 the Court of Appeal stated the law thus:
I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever;
13. In S.P. Chengalvaraya Naidu v. Jagannath and Ors. the Supreme Court stated that fraud avoids all judicial acts, ecclesiastical or temporal.
14. In Union of India and Ors. v. M. Bhaskaran 1995 Suppl. (4) SCC 100, the Supreme Court, after placing reliance upon and approving its earlier judgment in the case of District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Anr. v. M. Tripura Sundari Devi , observed as under:
If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of Law as the employment secured by fraud renders it voidable at the option of the employer.
15. In United India Insurance Co. Ltd. v. Rajendra Singh and Ors. , the Supreme Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.
16. The Hon'ble Supreme Court in The Bihar School Examination Board v. Subhas Chandra Sinha and Ors. , while considering the cancellation of the entire examination because of the use of mass copying, considered the scope of the principles of natural justice in such a matter and observed:
This is not a case of any particular individual who is being charged with adoption of unfair means but of the conduct of all the examinees or at least a vast majority of them at a particular centre. If it is not a question of charging any one individually with unfair means but to condemn the examination as ineffective for the purpose it was held, must the Board give an opportunity to all the candidates to represent their cases? We think not. It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go....
17. After referring to the aforesaid decision, the Supreme Court in Chairman J&K State Board of Education v. Feyaz Ahmed Malik and Ors. emphasised that the Board is entrusted with the duty of proper conduct of examinations.
18. In Krishan Yadav and Anr. v. State of Haryana and Ors. , the Hon'ble Supreme Court observed as follows:
It is highly regrettable that the holders of public offices both big and small have forgotten that the offices entrusted to them are sacred trust. Such offices are meant for use and not abuse. From a Minister to a menial everyone has been dishonest to gain undue advantages. The whole examination and the interview have turned out to be farcical exhibiting base character of those who have been responsible for this sordid episode. It shocks our conscience to come across such a systematic fraud. It is somewhat surprising the High Court should have taken the path of least resistance stating in view of the destruction of records it was helpless. It should have helped itself. Law is not that powerless.
In the above circumstances, what are we to do? The only proper course open to us is to set aside the entire selection. The plea was made that innocent candidates should not be penalised for the misdeeds of others. We are unable to accept this argument When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place as "Fraud unravels everything". To put it in other words, the entire selection is arbitrary. It is that which is faulted and not the individual candidates. Accordingly, we hereby set aside the selection of Taxation Inspectors.
19. In B. Ramanjini and Ors. v. State of Andhra Pradesh and Ors. the Supreme Court enlightened what approach the Courts should adopt while dealing with matters relating to cancellation of examination and after referring to The Bihar School Examination Board (supra) observed:
The facts revealed above disclose not only that there was scope for mass copying and mass copying did take place in addition to leakage of question papers which was brazenly published in a newspaper and the photocopies of the question papers were available for sale at a price of Rs. 2,000/- each. These facts should be alarming enough for any Government to cancel the examinations whatever may be the position in regard to other centres...Further, even if it was not a case of mass copying or leakage of question papers or such other circumstance, it is clear in the conduct of the examination, a fair procedure has to be adopted.... In such matters wide latitude should be shown to the Government and the courts should not unduly interfere with the action taken by the Government which is in possession of the necessary information and takes action upon the same. The courts ought no to take the action lightly and interfere with the same particularly when there was some material for the Government to act one way or the other.
20. In Delhi Development Authority and Anr. v. UEE Electricals Engg. (P) Ltd. and Anr. , the Hon'ble Supreme Court while describing the grounds on which administrative action is subject to control by judicial review observed:
Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill-will is not to be established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It is not law that mala fide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order.
21. A Division Bench of this Court in the case of Union of India and Ors. v. Akchhay Kumar Singh and Ors. 2000 Lab. I.C. 735 considered the scope of interference in such matters and held as follows:
In a matter like the one on hand, the competent authority, in our opinion, does not decide a lis between the complainant on one hand and candidates seeking appointment on the other so as to be obliged to hold an enquiry in consonance with the rules of natural justice. Its decision is not to be judged from judicial or even quasi judicial standards and since exercise of power to scrap recruitment is not regulated by objectively determinable factors, even "reasonable suspicion" as to the process of recruitment being vitiated by malpractices or corrupt means would suffice. Surrounding circumstances e.g. the necessity to scrap the recruitment for preservation of public faith in the recruitment process will also do. The competent authority, in our opinion, is not required to hold a formal enquiry in tune with the principles of natural justice and ascertain the truth or otherwise of the complaints as to malpractice in the recruitment process as condition precedent to cancelling the recruitment process. All that is expected of the competent authority in such a situation is that it would act in 'good faith' and take a 'bona fide' decision whether to scrap or not to scrap the recruitment.... Notings on the original file produced before us would show that the matter was examined and decision to scrap the recruitment was taken after due deliberation. Such decision, in our opinion is not open to challenge under Article 226 of the Constitution of India on the ground that there was no material to substantiate the allegations of malpractice... Learned Single Judge, in our opinion, was not right in judging the impugned decision on the touchstone of the standards meant for judging judicial or quasi-judicial decision affecting vested rights of individuals.
22. In the appeal against the aforesaid decision, the Hon'ble Supreme Court in the case of Union of India and Ors. v. Tarun Kumar Singh and Ors. while upholding the judgment observed as follows:
...in view of the allegation of malpractice, the departmental authorities has held an enquiry into the matter and the result of that enquiry has revealed gross irregularities and illegalities as referred to in the judgment of the Division Bench of Allahabad High Court. Consequently the process of selection which stands vitiated by adoption of large scale malpractice to a public office, cannot be permitted to be sustained by Court of Law.
23. In Union of India v. Joseph P. Cherian , the Hon'ble Supreme Court reconsidered the whole issue and held that in case of mass-malpractice, there could be no scope of examining an individual's case. While deciding the said case, reliance had also been placed on the judgments of the Hon'ble Supreme Court in P. Ratnakar Rao and Ors. v. Government of Andhra Pradesh and Ors. ; Kendriya Vidyalay Sangathan and Ors. v. Ajay Kumar Das and Ors. ; and Union of India and Ors. v. O. Chakradhar .
24. It cannot be doubted that the principles of natural justice cannot be put into a strait-jacket formula and that its application will depend upon the fact situation obtaining therein. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. This is what has been held by the Supreme Court in K.L. Tripathi v. State Bank of India and Ors. ; N.K. Prasada v. Government of India and Ors. ; State of Punjab v. Jagir Singh ; Karnataka SRTC and Anr. v. S.G. Kotturappa and Anr. and in Viveka Nand Sethi v. Chairman, J&K Bank Ltd. and Ors. .
25. In Union of India and Anr. v. Tulsiram Patel Hon'ble Supreme Court held:
Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible.
26. It is equally well settled that the principles of natural justice must not be stretched too far and in this connection reference may be made to the decisions of the Supreme Court in Sohan Lal Gupta and Ors. v. Asha Devi Gupta and Ors. ; Mardia Chemicals Ltd. v. Union of India and Canara Bank v. Debasis Das .
27. In Hira Nath Mishra and Ors. v. The Principal, Rajendra Medical College, Ranchi and Anr. the Hon'ble Supreme Court held as follows:
The High Court was plainly right in holding that principles of natural justice are not inflexible and may differ in different circumstances. This Court has pointed out in Union of India v. P.K. Roy that the doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula and its application depends upon the several factors.... Rules of natural justice cannot remain the same applying to all conditions.
28. It has rightly been observed that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply and nor as to their scope and extent. Everything depends on the subject-matter. The application of principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant; there is no such thing as a mere technical infringement of natural justice. The requirements of natural justice must depend on the facts and the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth. (Wade 'On Administrative Law' 5th Edition).
29. The Constitution Bench of the Supreme Court in Managing Director ECIL, Hyderabad v. B. Karunakar made reference to its earlier decisions and observed:
In A.K. Kraipak v. Union of India it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why, they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasi-judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice.
30. In Chairman, Board of Mining Examination v. Ramjee the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference of the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as a mere artifact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
31. In Biswa Ranjan Sahoo and Ors. v. Sushanta Kumar Dinda and Ors. the Hon'ble Supreme Court had the occasion to examine whether principles of natural justice were required to be followed in a matter where because of mass scale malpractice in the selection process, the selection was cancelled and in this context it was observed:
A perusal thereof would indicate the enormity of mal-practices in the selection process. The question, therefore, is: whether the principle of natural justice is required to be followed by issuing notice to the selected persons and hearing them? It is true, as contended by Mr. Santosh Hegde, learned senior counsel appearing for the petitioners, that in the case of selection of an individual his selection is not found correct in accordance with law, necessarily a notice is required to be issued and opportunity be given. In a case like mass mal-practice as noted by the Tribunal, as extracted hereinbefore, the question emerges: whether the notice was required to be issued to the persons affected and whether they needed to be heard? Nothing would become fruitful by issuance of notice. Fabrication would obviously either be not known or no one would come forward to bear the brunt. Under these circumstances, the Tribunal was right in not issuing notice to the persons who are said to have been selected and given selection and appointment.
32. In Union of India and Ors. v. O. Chakradhar the Hon'ble Supreme Court considered the question whether it was necessary to issue individual show cause notices to each selected person when the entire selection was cancelled because of widespread and all pervasive irregularities affecting the result of selection and it was observed:
All norms are said to have been violated with impunity at each stage viz. right from the stage of entertaining applications, with answer-sheets while in the custody of Chairman, in holding typing test, in interview and in the end while preparing final result. In such circumstances it may not be possible to pick out or choose any few persons in respect of whom alone the selection could be cancelled and their services in pursuance thereof could be terminated. The illegality and irregularity are so intermixed with the whole process of the selection that it becomes impossible to sort out right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable. Guilt of those who have been selected is not the question under consideration but the question is could such selection be acted upon in the matter of public employment? We are, therefore, of the view that it is not one of these cases where it may have been possible to issue any individual notice of misconduct to each selectee and seek his explanation in regard to the large scale widespread and all pervasive illegalities and irregularities committed by those who conducted the selection which may of course possibly be for the benefit of those who have been selected but there may be a few who may have deserved selection otherwise but it is difficult to separate the cases of some of the candidates from the rest even if there may be some.
33. In the case of S.P. Chengalvaraya Naidu (dead) by LRs. V. Jagannath (dead) by L.Rs. and Ors. the Hon'ble Supreme Court refused to interfere on the ground of breach of principles of natural justice by observing:
The court of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
34. Following the aforesaid decision of the Supreme Court, this Court in the case of Bharat and Ors. v. Nagarpalika, Azamgarh and Ors. (1994) 2 UPLBEC 745 observed:
Learned counsel for the appellants also submitted that no opportunity of hearing was given to the appellants before passing the impugned orders. We have seriously considered this aspect of the matter too and, in our opinion, where the benefit accrued to the person complaining breach of the principles of natural justice is the result of fraud, unfairness, arbitrariness or misconduct at the source of such benefit, the principles of natural justice cannot be invoked.... In our opinion, the facts and circumstances of the present case also do not give a different picture. The appellants are in fact beneficiaries of the selection process which has already been held to be unfair and non-existent. In the circumstances, they are not entitled to any relief on the ground of violation of the principles of natural justice which cannot be pressed in service without there being equity on the side of the appellants.
35. Thus, in view of the above, it is not permissible in law to examine the case of an individual person, if it stands established that it was a case of mass-irregularities.
36. Undoubtedly, the learned Single Judge has categorically held that in case of three selected candidates, namely, Ashish Pandey (Roll No. 1413), Chandra Prakash Asthana (Roll No. 1639) and Ravindra Singh (Roll No. 4555), no irregularity has been found. However, the learned Single Judge considered the case of Union of India and Ors. v. Rajesh P.U., Puthuvalnikathu and Anr. , wherein it has been held that where from out of the selectees, it is possible to weed out the beneficiaries of irregularities or illegalities, there could be no justification to deny appointment to those selected candidates whose selection was not vitiated in any manner. The learned Single Judge held that as the mass-irregularities in case of the others was of such a magnitude that it was not possible to find out that if the selection had been held in fairly, these three persons could have been appointed and as such no relief could be granted to them. We agree with the findings recorded by the learned Single Judge on this count as it was not possible in the facts and circumstances of the case to separate truth from falsehood and, thus, the learned Single Judge rightly rejected their claims for appointment.
37. In Balka Singh and Ors. v. State of Punjab 1975 Supp. S.C.R. 129, the Hon'ble Supreme Court considered a similar issue, placing reliance upon its earlier judgment in Zwinglee Ariel v. State of Madhya Pradesh and held as under:
The Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the true is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply.
38. In view of the above, we find no force in the submissions made by Shri R.N. Singh, learned Senior Counsel.
39. The learned Single Judge has taken care while deciding the case that the principles of natural justice be observed strictly and it is evident from the said judgment that selected candidates, who were represented by counsel Shri M.D. Singh Shekhar, were also specifically afforded an opportunity to check the answer sheets, in original, in the Court itself. In this respect and with reference to the discrepancies noticed by the learned Single Judge, it has been observed that counsel appearing for the selected candidates had specifically stated that "records have already been examined by the Court and, therefore, the facts which are apparent on record cannot be explained".
40. In view of the above, there is no scope of any argument that the selected candidates had not been given any opportunity to find out as to whether the discrepancies pointed out by the learned Single Judge were correct or not. In order to do complete justice, we gave full opportunity to Shri Shailendra, learned Counsel appearing for the appellants before us that the records examined by the learned Single Judge was available in the Court and he could inspect the same in the Court and point out any error in respect of the discrepancies recorded by the learned Single Judge. Either Shri Shailendra did not consider it proper to check the record and verify the facts himself or he did not consider it proper to report the matter back to the Court saying that he had seen the records and he had found that the findings recorded by the Court are not in accordance with record available in the Court.
41. Special Appeal No. 616 of 2006 is in respect of appointment on the post of Stenographers. Under the advertisement as well as the procedure prescribed, achievement of the minimum prescribed speed in shorthand and typing was a mandatory condition before which any selection could be made on the post of Stenographers. None of the learned Counsel did attempt to challenge the finding recorded by the learned Single Judge in this regard. The speed of a candidate has to be worked out only after noting the mistakes, half mistakes, error in punctuations and paragraphing etc. Admittedly, the aforesaid procedure has not been followed at all in respect of any of the candidates. We, therefore, affirm the findings recorded by the learned Single Judge in this respect as well.
42. In view of the above, we do not find any merit in the submissions made by learned Counsel for the appellants and the appeals are liable to be dismissed.
Special Appeal No. 730 of 2006
43. Shri V.S. Sinha, learned Counsel appearing for the appellant in this appeal has submitted that the appellant had been appointed on ad hoc basis for a period of 90 days and continued in service for about two years. His services had been dispensed with, though he was entitled to be regularized.
44. The question as to whether the services of certain employees appointed on ad hoc basis should be regularised relates to the condition of service. The power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution of India or any analogous provision and in the absence of such Rules, under the instructions issued in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights and statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rule of Law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the haplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the Directive Principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. A perusal of the authorities would show that appointments are as a rule to be made in accordance with statutory rules, giving equal opportunity to all the aspirants to apply for the posts and following the prevalent policy of reservation in favour of Scheduled Castes/Scheduled Tribes and other backward classes. Whenever the employees are appointed on ad hoc basis to meet an emergent situation, every effort should be made to replace them by the employees appointed on regular basis in accordance with the relevant rules as expeditiously as possible. Where the appointment on ad hoc basis has continued for long and the State has made rules for regularisation, case for regularisation of employee has to be considered in accordance with the said rules. Where, however, no rules are operative, it is open to the employees to show that they have been dealt with arbitrarily and their weak position has been exploited by keeping them ad hoc for a long spell of time. However, it is a question of fact whether in the given situation, they were treated arbitrarily. (Vide Dr. A.K. Jain and Ors. v. Union of India and Ors. (1987) Supp SCC 497; Jacob M. Puthuparambil and Ors. v. Kerala Water Authority and Ors. ; J & K. Public Service Commission etc. v. Dr. Narinder Mohan and Ors. ; E. Ramakrishnan and Ors. v. State of Kerala and Ors. ; and Ashwani Kumar and Ors. v. State of Bihar and Ors. .
45. In Khagesh Kumar v. Inspector General of Registration and Ors. , the Hon'ble Supreme Court did not issue direction for regularisation of employees who had been appointed on ad hoc basis or on daily wages after the cut off date, i.e., 1.10.1986 as was required by the provisions of U.P. regularisation of Ad hoc Appointment (On posts Outside the Purview of the Public Service Commission) Rules, 1979. The same view has been taken by the Supreme Court in Inspector General of Registration, U.P. and Anr. v. Avdesh Kumar and Ors. . Moreover, in the above referred cases it has been laid down that for the purpose of regularisation, various pre-requisite conditions are to be fulfilled, i.e., the temporary/as hoc appointment of the employee should be in consonance with the statutory rules and it should not be a back-door entry. The service record of the employee should be satisfactory; the employee should be eligible and/or qualified for the post at the time of his initial appointment. There must be a sanctioned post against which the employee seeks regularisation and on the said sanctioned post, there must be a vacancy. Moreover, regularisation is to be made according to seniority of the temporary/ad hoc employees. The regularisation should not be in contravention of the State Policy regarding reservation in favour of Scheduled Castes/Scheduled tribes and other backward classes and other categories for which State has enacted any Statute or framed rules or issued any Government Order etc.
46. Similar view has been reiterated by the Hon'ble Supreme Court in Union of India v. Bishamber Dutt ; and State of Uttar Pradesh v. U.P. Madhyamik Shiksha Parishad Shramik Sangh . In the case of State of Himachal Pradesh v. Ashwani Kumar and Ors. , the Apex Court held that if an employment is under a particular Scheme or the employee is being paid out of the funds of a Scheme, in case the Scheme comes to closure or the funds are not available, the Court has no right to issue direction to regularise the service of such an employee or to continue him on some other project, for the reason that "no vested right is created in a temporary employment.
47. In Prabhu Dayal Jat v. Alwar Sahkari Bhumi Vikas Bank 1991 Lab. & IC 944, the Court rejected the case of an employee, for regularisation as his services stood terminated on the ground that he had been appointed without any authorisation of law.
48. The question of regularisation does not arise by merely working for 240 days or any particular number of days, unless it is so long that his continuation on ad hoc basis becomes arbitrary as no such ad hoc employee can derive any benefit for working for particular number of days or even for years under the interim order of the Court. More so, his appointment should be directly in accordance with law. (Vide M.D. U.P. Land Development Corporation v. Amar Singh ; Pankaj Gupta v. State of J & K and Dhampur Sugar Mills Ltd. Bhola Singh .
49. In Vinodan T. v. University of Calicut Mahendra L. Jain and Ors v. Indore Development Authority and Ors. , it has categorically been held by the Hon'ble Apex Court that the appointees appointed irregularly can be regularised but illegally appointed employees cannot be regularised. As illegal appointments are void ab initio being opposed to public policy and violative of Articles 14 and 16 of the Constitution, and all such authorities and instrumentalities which are State within the meaning of Article 12 of the Constitution, must give strict observance to the mandate of the Constitution. Regularisation can never be claimed as a mater of right. A daily wager in absence of statutory provisions in this behalf cannot claim entitlement for regularisation.
50. In A. Umarani v. Registrar, Co-operative Societies and Ors. , a large number of employees of the Co-operative Societies in the State of Tamil Nadu had been appointed without notifying the vacancies through the Employment Exchanges and without following the other mandatory provisions of the Act and the Rules framed thereunder relating to recruitment. With a view to condone the serious lapses on the part of the Co-operative Societies in making such appointments the State Government issued various orders from time to time for regularizing such appointments. The Supreme Court held that such orders could not have been passed with retrospective effect condoning the actions on the part of the Co-operative Societies which were in flagrant violation of the provisions of the Act and the Rules. While holding that the provisions of the Act and the Rules reflect the Legislative Recruitment Policy and the provisions were mandatory in nature, the Supreme Court after referring to a number of earlier decisions held that an appointment made in violation of the mandatory provisions of the Statute would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization. While deciding the said case, reliance was placed on its earlier judgment in State of H.P. v. Suresh Kumar Verma and Anr. .
51. The Supreme Court in R.N. Nanjundappa v. T. Thimmaiah and Anr. (1992) 2 SCR 799 held:
If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regulation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.
52. In Jawaharlal Nehru Technological University v. T. Sumalatha (Smt.) and Ors. , the Supreme Court rejected a similar contention stating:
8. ...The learned Counsel, therefore, contends that there is every justification for absorbing the respondents concerned on regular basis in recognition of their long satisfactory service. The learned Counsel further contends that the ad hoc arrangement to employ them on consolidated pay should not go on forever. The contention of the learned Counsel cannot be sustained for more than one reason and we find no valid grounds to grant the relief of regularisation. There is nothing on record to show that the employees concerned were appointed after following due procedure for selection. Apparently, they were picked and chosen by the University authorities to cater to the exigencies of work in the Nodal Centre.
53. The aforesaid decision in the case of A. Umarani (supra) was approved by the Supreme Court in the case of Executive Engineer, Z. P. Engg. Divn. and Anr. v. Digambara Rao etc. etc. 2004 AIR SCW 5546.
54. In State of West Bengal and Anr. v. Alpana Roy and Ors. (2005) AIR SCW 4920, the Hon'ble Supreme Court held that if someone's name is included in the list of unapproved employees for a long time, mere empanelment would not give any right of regularisation in service if the appointment at the initial stage had been made de hors the recruitment rules.
55. In State of U.P. v. Neeraj Awasthi , the Hon'ble Apex Court considered a similar case and held that the expression "regularization" has a definite connotation. Regularisation of services must be preceded by a legislative act or in the absence of legislation, Rules framed in terms of the proviso appended to Article 309 of the Constitution of India. The concept of regularization presupposes irregular appointments at the first instance so as to enable the employer to regularize the same.
56. In State of Bihar and Ors. v. Project Uchcha Vidya Shikshak Sangh and Ors. , the Hon'ble Apex Court held that question of regularization of services does not arise if the appointment has been made at initial stage in violation of the provisions of Article 14 and 16 of the Constitution of India.
57. It is also settled legal proposition that a retrenched employee cannot claim the relief of regularisation unless his termination from service is found to be illegal. Thus, only an employee who is continuing in service for a long time is eligible for seeking such a relief. (Vide H.P. Housing Board v. Om Pal and Ors. Ramchander and Ors. v. Additional District Magistrate and Ors. .
58. Thus, it is evident from the above settled legal proposition that a person who had been appointed on daily wages and worked for a period of 1 or 2 years, cannot claim regularisation in absence of any statutory provisions. He must possess the eligibility for the post on the date of initial appointment and the appointment should be made in consonance with the statutory provisions. Regularisation is not permissible ignoring the policy framed by the State providing for reservation in favour of certain classes. A retrenched employee cannot claim regularisation without asking for quashing his termination order. More so, regularisation may be either under a scheme framed by the employer or under the statutory provision framed by the State for this purpose.
59. In the instant case, it has fairly been conceded by Shri V.S. Sinha, learned Counsel appearing for the appellant that his appointment had been made initially for a period of 90 days without advertising any vacancy or calling for names from the Employment Exchange. No order had ever been passed extending his services after expiry of 90 days. However, he was allowed to continue in service till it stood terminated vide order dated 1st May, 2003. He along with others filed the writ petition and obtained an interim order. Shri Sinha could not point out any provision or any Government Order providing for regularization of services of employees appointed illegally nor could he satisfy us that even if he had been illegally appointed, he had completed the period which might warrant consideration for regularization of his services. Contrary to this, the High Court had clarified, its position vide letter dated 20th May, 2003 that no extension was permissible to the services of such persons nor appointment could be made on ad hoc basis and the District Judge was directed to initiate proceedings for regular appointment. Shri Sinha could not assail the findings recorded by the learned Single Judge on any ground, whatsoever, and miserably failed to establish that any right had accrued in favour of such an illegally appointed person, which may warrant consideration for regularisation of his services.
60. It is a settled legal proposition that appointment to any public post is to be made by advertising the vacancy and any appointment made without doing so violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered.
61. In Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi and Ors. , the Hon'ble Apex Court held that calling for names from Employment Exchange may curb to certain extent the menace of nepotism and corruption in public employment.
62. In State of Haryana v. Piara Singh , the Hon'ble Supreme Court held as under:
Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
63. Any appointment made on temporary or ad hoc basis in violation of the mandate of Articles 14 and 16 of the Constitution of India is not permissible, and thus void as the appointment is to be given after considering the suitability and merit of all the eligible persons who apply in pursuance of the advertisement In Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and Ors. , the larger Bench of the Hon'ble Supreme Court reconsidered its earlier judgment in Union of India and Ors. v. N. Hargopal and Ors. , wherein it had been held that insistence of requirement through employment exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution, and held that any appointment even on temporary or ad hoc basis without inviting application is in violation of the provisions of Articles 14 and 16 of the Constitution and even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from open market as merely calling the names from the Employment Exchange does not meet the requirement of the said Articles of the Constitution. Same view has been reiterated in Arun Tewari and Ors. v. Zila Mansavi Shikshak Sangh and Ors. AIR 1998 SC 331; Kishore K. Pati v. District Inspector of Schools, Midnapore and Ors. (2000) 9 SCC 405 and Subhash Chand Dhrupta and Anr. v. State of H.P. and Ors. . Therefore, it is settled legal proposition that no person can be appointed even on temporary or ad hoc basis without inviting applications from all eligible candidates and if any such appointment has been made or appointment has been offered merely inviting names from the Employment Exchange that will not meet the requirement of Articles 14 and 16 of the Constitution.
64. In view of the fact that the Hon'ble Apex Court has consistently been reiterating that even ad hoc appointments are to be made in accordance with the mandate of Articles 14 and 16 of the Constitution of India and even where the names are being requisitioned from the Employment Exchange, the advertisement in the newspapers having wide circulation is mandatory, we are of the considered opinion that no relief can be granted to the appellant herein nor there is any occasion for the Court to save such an illegal appointment. The appeal is liable to be dismissed.
Special Appeal No. 640 of 2006
65. This Special Appeal has been filed by the then District Judge, the Appointing Authority for setting aside the cost imposed upon him to the tune of Rs. 25,000/-.
66. Shri Gajendra Pratap Singh, learned Counsel for the appellant has submitted that the appellant has constituted a Selection Committee making one of the Additional District Judges as Member. Therefore, he cannot be fastened with any liability, whatsoever and the cost so imposed is unreasonable and is liable to be set aside.
67. On the one hand, Shri Yashwant Verma, learned Counsel appearing for the High Court and Shri C.K. Rai, learned Standing Counsel appearing for the State have opposed the Special Appeal contending that even if the appellant has not committed any error or even if he was not involved in any fraud, he was solely responsible being the Appointing Authority and was guilty of supervisory negligence. Thus, the relief claimed cannot be granted.
68. In the writ petitions pending before learned Single Judge, appellant had been impleaded by name and was present in the Court on 4th April, 2006 and made a statement that he had not examined any of the answer sheets and, thus, was not in a position to explain the discrepancies noticed by the Court. He further suggested to the Court that the Chairman of the Selection Committee be asked to explain the aforesaid discrepancies and on his request Shri Vijay Kumar Agrawal, who had been one of the Members of the Selection Committee had filed an affidavit stating that "the entire records pertaining to the selections, after the examination, were kept under the direction of the District Judge at his residence, till the declaration of the result, i.e. 29th September, 2004". There is no rebuttal by the appellant to this affidavit filed by Shri Vijay Kumar Agrawal. The appellant was given time to produce the original cross-list prepared in respect of the selection and for that purpose, the matter had been adjourned but the same was not produced nor any explanation was furnished by the appellant as to why the same was not produced by him. However, the appellant produced a Photostat copy of the cross-list which had been prepared by the Chairman of the Committee. No explanation was furnished regarding the non availability of the original cross-list on record by the appellant. Therefore, the authenticity of the Photostat copy of the cross-list produced by the appellant was also doubted. The original cross-list could have given a clue for arriving at a conclusion as to whether interpolation in the marks of the selected candidates had been done subsequent to the preparation of the original cross-list or not and as to what were the original marks awarded to the selected candidates. Shri Gajendra Pratap Singh was not in a position to rebut the statement made by the Member of the Selection Committee that the entire record of the examinations including the answer sheets was kept at the residence of the appellant from the date of the examinations nor could he furnish any explanation as to who had examined the copies and why the original cross-list was not available. The aforesaid facts not only raise a clear presumption against the appellant but also establish that the appellant has failed to dislodge the same and as such the only inference that can be drawn is that the findings recorded by the learned Single Judge cannot be doubted and deserve to be affirmed. Considering the magnitude of the malpractice in this case, there can be no justification for any indulgence, whatsoever, in this appeal. The learned Single Judge has been lenient while dealing with the appellant as we are of the considered opinion that it was a fit case for issuing directions for his criminal prosecution. At this juncture, Shri Verma suggested that this Court may even issue such directions. Considering the facts and circumstances of the case and taking into account the subsequent developments that the appellant has already been put under suspension and the disciplinary proceedings have been initiated against him, we are not inclined to issue direction for his criminal prosecution. However, it will be open for the High Court on the administrative side to take recourse to such proceedings.
69. In view of the above, we do not find any force in these Special Appeals. They are accordingly dismissed. Interim order passed in Special Appeal No. 640 of 2006, staying the recovery of the cost stands vacated.