# Chandrika v. M. Vijaykumar (1996-1)

- **Citation:** (2006) 2 ILRA 865
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-07-19
- **Case number:** Special Appeal No.614 of 2006
- **Bench:** Dr. B.S. Chauhan, Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandrika-v-m-vijaykumar-1996-1-40668
- **Pages:** 22

## Headnote

Sri K.R. Sirohi
Sri Anurag Pathak
Sri Yashwant Varma
Sri C.K. Rai
S.C.

Constitution of India-Art.-226-Right to
appointment-Selection of 4 Posts of
Stenographer and 19 posts of Clerk in
Judgeship
Kaushambi-great
irregularities committed-not possible to
find
out
the
beneficiaries
of
such
illegalities-although
four
candidates
found fairly selected-but considering the
impossibilities of separation of truth
from falsehood-No direction can be given
for appointment.

Held: Para 31

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.
AIR 1992 SC-1555, 1996 (1) AER-341, 1994
(1) SCC-I, 1995 SCC (Suppl) 4-100, 1990 (3)
SCC-655,
AIR 2000 SC-1165, AIR 1970 SC-1269, AIR
2000 SC-1039, AIR 1994 SC-2166, AIR 2002
SC-2023, AIR 2004 SC-2100, 2000 Lab.I.C.-
735, AIR 2001 SC-2196, 2005 (8) SCC-180,
AIR 1996 SC-2523, 2002 (4) SCC-503, 2004
(6) SCC-299, 2004 (8) SCC-129, 2005 (3) SCC409, 2005 SCC (5) 337, AIR 2004 SC-2371,
AIR 2003 SC-2041, AIR 1994 SC-1074, AIR
2002 SC-1119, AIR 1996 SC-2552, 1994 (2)
UPLBEC 745,
2003 (7) SCC-284
1975 (Suppl) SCR-129

(B)
Constitution
of
India-Art.
226Regularisation-appointment purely on
Ad-hoc basis for specified period of 89
days-continued for more than 3 years
without
extension
order-appointment
that
without
made
without
advertisement-without
following
the
procedure for selection-in contravention
of service Rules-No statutory provision
for regulation nor any scheme produced
held-can not be regularised.

Held: Para 55

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.
Case law discussed:
1987 (Suppl) SCC-497, 1991 SCC (1) 28, AIR
1996 (10 SC-565, AIR 1997 SC-1628, 1996 (9)
SCC-217, 1996 (11) SCC-341, AIR 1996 SC708, 1996 (1) SCC-793, 1991 LIC-944, 2004
(8) SCC-353, 2005 (2) SCC-470, 2002 (4) SCC726, 1992 (2) SCR-799, 2003 (10) SCC-405,

## Text

_Characters 0–39,849 of 72,426. This is a partial read: ask again with offset=39849 for what follows._

2 All] Rajesh Singh and others V. Vidyadhiraj Pandey and others
865
respondent on the contrary says that his
salary Rs. 7800/- per month. The trial
court accepted the wife's contention that
his salary is Rs. 7800/- and that seems to
be
the
right
in
view
of
these
circumstances.
Without
any
specific
percentage or proportion been prescribed
the fixing of the amount of maintenance
has, of necessity to be a little arbitrary.

13. In the other First Appeal No. No.
182 of 2001 (Vinod Kumar Rai Vs. Smt.
Manju Rai) by the husband which has
been allowed by this Court, a decree of
divorce has already been granted in his
favour. It is now well settled that a Court
may suo-moto grant maintenance, even if
it has not been claimed. Reference may be
made in this connection of the case of
Chandrika Vs. M. Vijaykumar (1996-1)
117 Mad. L.W., 695 where it has been so
held. There is as such, no legal bar in the
court raising the amount of maintenance.
In a case one judge may grant Rs.5000/-
per month while another judge may grant
Rs.10,000/- per month and both may be
right because no specific guidelines for
determination of quantum have been
provided in the Act. In the case in hand,
we have to notice that the girl is around
16-17years old and the provision has to be
made for her marriage also besides her
education and other living expenses. The
amount granted by the trial court is,
therefore, manifestly meager and needs to
be multiplied 5 times, amounting to
Rs.25,00/-
per
month.
The
amount
granted to the wife also needs to be raise a
little so as to Rs.2500/- per month instead
of Rs.15,00/-. The husband/ appellant will
ofcourse bear the expenses of the
marriage of his daughter when the time
comes.

O R D E R

The result is that the appeal of the
husband-appellant stands dismissed and
he is directed to pay Rs.25,00/- per month
as maintenance to the respondent- Manju
Rai till she survives and Rs.25,00/- per
month to his daughter till she is married
by him. The amount, at this rate, shall be
deducted, from his monthly salary from
the date of this order because fixation of
any earlier date for the same will cause
adjustment problem. Necessary directions
shall
be
issued
to
the
authorities
responsible for the payment of salary to
the appellant-husband.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2006

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Special Appeal No.614 of 2006

Rajesh Singh and others
...Appellants
Versus
Vidyadhiraj Pandey & others ...Respondents
With
Special Appeal No. 615 of 2006, Special
Appeal No.616 of 2006,Special Appeal
No. 640 of 2006, Special Appeal No.730
of 2006

Counsel for the Appellants:
Sri A.K. Gupta
Sri R.K. Jain
Sri G.P. Singh
Sri N.K. Rastogi
Sri R.N. Singh
Sri V.S. Sinha
Sri Abhishek Mayank
Sri Shailendra
866 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Counsel for the Respondents:
Sri K.R. Sirohi
Sri Anurag Pathak
Sri Yashwant Varma
Sri C.K. Rai
S.C.

Constitution of India-Art.-226-Right to
appointment-Selection of 4 Posts of
Stenographer and 19 posts of Clerk in
Judgeship
Kaushambi-great
irregularities committed-not possible to
find
out
the
beneficiaries
of
such
illegalities-although
four
candidates
found fairly selected-but considering the
impossibilities of separation of truth
from falsehood-No direction can be given
for appointment.

Held: Para 31

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.
AIR 1992 SC-1555, 1996 (1) AER-341, 1994
(1) SCC-I, 1995 SCC (Suppl) 4-100, 1990 (3)
SCC-655,
AIR 2000 SC-1165, AIR 1970 SC-1269, AIR
2000 SC-1039, AIR 1994 SC-2166, AIR 2002
SC-2023, AIR 2004 SC-2100, 2000 Lab.I.C.-
735, AIR 2001 SC-2196, 2005 (8) SCC-180,
AIR 1996 SC-2523, 2002 (4) SCC-503, 2004
(6) SCC-299, 2004 (8) SCC-129, 2005 (3) SCC409, 2005 SCC (5) 337, AIR 2004 SC-2371,
AIR 2003 SC-2041, AIR 1994 SC-1074, AIR
2002 SC-1119, AIR 1996 SC-2552, 1994 (2)
UPLBEC 745,
2003 (7) SCC-284
1975 (Suppl) SCR-129

(B)
Constitution
of
India-Art.
226Regularisation-appointment purely on
Ad-hoc basis for specified period of 89
days-continued for more than 3 years
without
extension
order-appointment
that
without
made
without
advertisement-without
following
the
procedure for selection-in contravention
of service Rules-No statutory provision
for regulation nor any scheme produced
held-can not be regularised.

Held: Para 55

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.
Case law discussed:
1987 (Suppl) SCC-497, 1991 SCC (1) 28, AIR
1996 (10 SC-565, AIR 1997 SC-1628, 1996 (9)
SCC-217, 1996 (11) SCC-341, AIR 1996 SC708, 1996 (1) SCC-793, 1991 LIC-944, 2004
(8) SCC-353, 2005 (2) SCC-470, 2002 (4) SCC726, 1992 (2) SCR-799, 2003 (10) SCC-405,
AIR 2004 SCW 5546, 2006 (2) SCC-545, 1997
SC-2685, 1998 (1) SCC-183

(Delivered by Hon'ble Dr. 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
2 All] Rajesh Singh and others V. Vidyadhiraj Pandey and others
867
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
868 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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 ''5' was added
before the digit ''zero' and while
2 All] Rajesh Singh and others V. Vidyadhiraj Pandey and others
869
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 reevaluation 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
870 INDIAN LAW REPORTS ALLAHABAD SERIES [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
2 All] Rajesh Singh and others V. Vidyadhiraj Pandey and others
871
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.

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.

The Hon'ble Supreme Court in Smt.
Shrisht Dhawan Vs. M/s. Shaw Brothers
AIR 1992 SC 1555 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."

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;"

10. In S.P. Chengalvaraya Naidu V.
Jagannath & Ors., (1994) 1 SCC 1 the
Supreme Court stated that fraud avoids all
judicial acts, ecclesiastical or temporal.

In Union of India & Ors. Vs. M.
Bhaskaran, 1995 Suppl. (4) SCC 100, the
Supreme Court, after placing reliance
872 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
upon and approving its earlier judgment
in the case of District Collector &
Chairman, Vizianagaram Social Welfare
Residential School Society, Vizianagaram
& Anr. Vs. M. Tripura Sundari Devi,
(1990) 3 SCC 655, 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."

11. In United India Insurance Co.
Ltd. Vs. Rajendra Singh & ors., AIR 2000
SC 1165, 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.

12. The Hon'ble Supreme Court in
The Bihar School Examination Board Vs.
Subhas Chandra Sinha & Ors., AIR 1970
SC
1269,
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............"

13. After referring to the aforesaid
decision, the Supreme Court in Chairman
J&K State Board of Education Vs. Feyaz
Ahmed Malik & Ors., AIR 2000 SC 1039
emphasised that the Board is entrusted
with the duty of proper conduct of
examinations.

14. In Krishan Yadav & Anr. Vs.
State of Haryana & Ors., AIR 1994 SC
2166,
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
2 All] Rajesh Singh and others V. Vidyadhiraj Pandey and others
873
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."

15. In B. Ramanjini & Ors. Vs. State
of Andhra Pradesh & Ors., AIR 2002 SC
2023 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."

16. In Delhi Development Authority
& Anr. Vs. M/s. UEE Electricals Engg.
(P) Ltd. & Anr. AIR 2004 SC 2100, 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."

17. A Division Bench of this Court
in the case of Union of India & Ors. Vs.
Akchhay Kumar Singh & Ors., 2000 Lab.
I.C.
735
considered
the
scope
of
874 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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. ................
Noting 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."

18. In the appeal against the
aforesaid decision, the Hon'ble Supreme
Court in the case of Union of India & Ors.
Vs. Tarun Kumar Singh & Ors., AIR
2001 SC 2196 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."

19. In Union of India Vs. Joseph P.
Cherian, (2005) 8 SCC 180, the Hon'ble
Supreme Court reconsidered the whole
issue and held that in case of massmalpractice, 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 & Ors. Vs. Government of Andhra
Pradesh & Ors., AIR 1996 SC 2523;
Kendriya Vidyalay Sangathan & Ors. Vs.
Ajay Kumar Das & Ors., (2002) 4 SCC
503; and Union of India & Ors. Vs. O.
Chakradhar, AIR 2002 SC 1119.

20. 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
2 All] Rajesh Singh and others V. Vidyadhiraj Pandey and others
875
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 Vs. State
Bank of India & Ors. AIR 1984 SC 273;
N.K. Prasada Vs. Government of India &
Ors. (2004) 6 SCC 299; State of Punjab
Vs. Jagir Singh (2004) 8 SCC 129;
Karnataka SRTC & Anr. Vs. S.G.
Kotturappa & Anr., (2005) 3 SCC 409
and in Viveka Nand Sethi Vs. Chairman,
J&K Bank Ltd. & Ors., (2005) 5 SCC
337.

21. In Union of India & Anr. Vs.
Tulsiram Patel AIR 1985 SC 1416 the
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."

22. 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 &
Ors. Vs. Asha Devi Gupta & Ors., (2003)
7 SCC 492; Mardia Chemicals Ltd. Vs.
Union of India AIR 2004 SC 2371 and
Canara Bank Vs. Debasis Das AIR 2003
SC 2041.

In Hira Nath Mishra & Ors. Vs. The
Principal, Rajendra Medical College,
Ranchi & Anr. AIR 1973 SC 1260 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 Vs. P.K.
Roy, (1968) 2 SCR 186 at page 202 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."

23. 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).

24. The Constitution Bench of the
Supreme Court in Managing Director
ECIL, Hyderabad Vs. B. Karunakar AIR
876 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
1994 SC 1074 made reference to its
earlier decisions and observed:-

"In A.K. Kraipak v. Union of India,
AIR 1970 SC 150 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."

25. In Chairman, Board of Mining
Examination Vs. Ramjee AIR 1977 SC
965 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.

26. In Biswa Ranjan Sahoo & Ors.,
Vs. Sushanta Kumar Dinda & Ors,. AIR
1996 SC 2552 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
2 All] Rajesh Singh and others V. Vidyadhiraj Pandey and others
877
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."

27. In Union of India & Ors. Vs.