# SACHIN KUMAR & ORS v. DELHI SUBORDINATE SERVICE SELECTION BOARD

- **Citation:** [2021] 2 S.C.R. 1073
- **Court:** Supreme Court of India
- **Decided:** 2021-03-03
- **Case number:** Civil Appeal Nos. 639-640 of 2021
- **Bench:** Dr. Dhananjaya Y Chandrachud, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sachin-kumar-ors-v-delhi-subordinate-service-selection-board-34817
- **Pages:** 58

## Headnote

Service Law - Recruitment - Examination - Irregularities in
- An advertisement dated 26.12.2009 issued for 231 vacancies for
the post of Head Clerk [(Grade 2) (DASS)] in GNCTD - 62,056
application received - 8,224 appeared in Tier-I Examination -
Results were declared in 2014 - Shortlisted candidates appeared in
Tier-II Examination in the year 2015 - Several complaints were
received regarding leakage of question papers, mass cheating,
allotment of common examination centre and rooms to members of
the same family, in the conduct of both the Tier-l and Tier-ll
examinations - Two Committees were constituted to enquire into the
irregularities, both found serious irregularities in the examination
- An FIR was registered at Anti-Corruption Branch (ACB) u/s.
13(1)(d) of Corruption Act r/w. s.120B of IPC - Dy. CM
recommended for the cancellation of exam and a notification was
issued for cancellation of exam - Central Administrative Tribunal
set aside the said cancellation notification holding that the
appointments would be subject to ACB Investigation - High Court
while upholding the order of the Tribunal, confined the relief to
only six applicants who approached the Tribunal - On appeal, held:
A fair and reasonable process of selection to posts subject to the
norm of equality of opportunity u/Art. 16(1) is a constitutional
requirement - Where the recruitment to public employment stands
vitiated as a consequence of systemic fraud or irregularities, the
entire process becomes illegitimate - The requirement that a public
body must act in fair and reasonable terms animates the entire
process of selection - Recruitment to public service must command
public confidence - In the present case, the report of the Committee
dwells on: (i) The delay of five years in holding the Tier-I examination
after the advertisement was released in 2009; and (ii) The issuance
[2021] 2 S.C.R. 1073
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of admit cards only through the electronic mode, which was not
prescribed in the advertisement - Besides other irregularities,
Committee also noted that there was a racket which had led to the
impersonation of candidates - There was absence of randomization,
many cases had emerged where two or more members of a single
family sat in consecutive order and were falling under the zone of
probable selection - The Committee found that the videography
was blurred, thumb impressions were unrecognizable, jammers were
not working properly and candidates were allowed to appear
irrespective of their educational qualifications - Further, it was noted
that allegations of flying squad members passing answers onto
candidates - Considering all the irregularities, the Secretary
Vigilance also opined that the entire process of recruitment appeared
to be vitiated - There was a denial of equal access to the Tier-l
examination and the allegations showed that the credibility of the
process itself had been eroded - In such a situation, where a decision
is taken by the Government to cancel the entire process, it cannot
be held to be irrational or arbitrary, applying the yardstick of fair
procedure and proportionality to the decision-making process - Both
the judgments of High Court and the Tribunal are unsustainable.
Constitution of India - Article 16(1) - Equality of opportunity
- Public Employment - irregularities - Held: A fair and reasonable
process of selection to posts subject to the norm of equality of
opportunity u/Art. 16(1) is a constitutional requirement - Where the
recruitment to public employment stands vitiated as a consequence
of systemic fraud or irregularities, the entire process becomes
illegitimate.
Constitution of India - Article 14 - Right To Equality -
Recruitment - Held: The constitutional values which undergird
Articles 14 and 16 mandate that selection processes conducted by
public authorities to make recruitments have to be fair, transparent
and accountable - A fair and reasonable process is a fundament

## Text

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1073
SACHIN KUMAR & ORS.
v.
DELHI SUBORDINATE SERVICE SELECTION BOARD
(DSSSB) & ORS.
(Civil Appeal Nos. 639-640 of 2021)
MARCH 03, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Service Law - Recruitment - Examination - Irregularities in
- An advertisement dated 26.12.2009 issued for 231 vacancies for
the post of Head Clerk [(Grade 2) (DASS)] in GNCTD - 62,056
application received - 8,224 appeared in Tier-I Examination -
Results were declared in 2014 - Shortlisted candidates appeared in
Tier-II Examination in the year 2015 - Several complaints were
received regarding leakage of question papers, mass cheating,
allotment of common examination centre and rooms to members of
the same family, in the conduct of both the Tier-l and Tier-ll
examinations - Two Committees were constituted to enquire into the
irregularities, both found serious irregularities in the examination
- An FIR was registered at Anti-Corruption Branch (ACB) u/s.
13(1)(d) of Corruption Act r/w. s.120B of IPC - Dy. CM
recommended for the cancellation of exam and a notification was
issued for cancellation of exam - Central Administrative Tribunal
set aside the said cancellation notification holding that the
appointments would be subject to ACB Investigation - High Court
while upholding the order of the Tribunal, confined the relief to
only six applicants who approached the Tribunal - On appeal, held:
A fair and reasonable process of selection to posts subject to the
norm of equality of opportunity u/Art. 16(1) is a constitutional
requirement - Where the recruitment to public employment stands
vitiated as a consequence of systemic fraud or irregularities, the
entire process becomes illegitimate - The requirement that a public
body must act in fair and reasonable terms animates the entire
process of selection - Recruitment to public service must command
public confidence - In the present case, the report of the Committee
dwells on: (i) The delay of five years in holding the Tier-I examination
after the advertisement was released in 2009; and (ii) The issuance
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of admit cards only through the electronic mode, which was not
prescribed in the advertisement - Besides other irregularities,
Committee also noted that there was a racket which had led to the
impersonation of candidates - There was absence of randomization,
many cases had emerged where two or more members of a single
family sat in consecutive order and were falling under the zone of
probable selection - The Committee found that the videography
was blurred, thumb impressions were unrecognizable, jammers were
not working properly and candidates were allowed to appear
irrespective of their educational qualifications - Further, it was noted
that allegations of flying squad members passing answers onto
candidates - Considering all the irregularities, the Secretary
Vigilance also opined that the entire process of recruitment appeared
to be vitiated - There was a denial of equal access to the Tier-l
examination and the allegations showed that the credibility of the
process itself had been eroded - In such a situation, where a decision
is taken by the Government to cancel the entire process, it cannot
be held to be irrational or arbitrary, applying the yardstick of fair
procedure and proportionality to the decision-making process - Both
the judgments of High Court and the Tribunal are unsustainable.
Constitution of India - Article 16(1) - Equality of opportunity
- Public Employment - irregularities - Held: A fair and reasonable
process of selection to posts subject to the norm of equality of
opportunity u/Art. 16(1) is a constitutional requirement - Where the
recruitment to public employment stands vitiated as a consequence
of systemic fraud or irregularities, the entire process becomes
illegitimate.
Constitution of India - Article 14 - Right To Equality -
Recruitment - Held: The constitutional values which undergird
Articles 14 and 16 mandate that selection processes conducted by
public authorities to make recruitments have to be fair, transparent
and accountable - A fair and reasonable process is a fundamental
requirement of Article 14 - Where it is possible to segregate persons
who have indulged in mal-practices and to penalise them for their
wrong- doing, it would be unfair to impose the burden of their wrongdoing on those who are free from taint - To treat the innocent and
the wrong-doers equally by subjecting the former to the consequence
of the cancellation of the entire process would be contrary to Article
14 because unequals would then be treated equally.
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Service Law - Recruitment - Irregularities in Examination -
Position in Law - discussed.
Disposing of the appeals, the Court
HELD: 1. Over the last five decades, several decisions of
this Court have dealt with the fundamental issue of when the
process of an examination can stand vitiated. Essentially, the
answer to the issue turns upon whether the irregularities in the
process have taken place at a systemic level so as to vitiate the
sanctity of the process. There are cases which border upon or
cross-over into the domain of fraud as a result of which the
credibility and legitimacy of the process is denuded. This
constitutes one end of the spectrum where the authority
conducting the examination or convening the selection process
comes to the conclusion that as a result of supervening event or
circumstances, the process has lost its legitimacy, leaving no
option but to cancel it in its entirety. Where a decision along
those lines is taken, it does not turn upon a fact-finding exercise
into individual acts involving the use of mal-practices or unfair
means. Where a recourse to unfair means has taken place on a
systemic scale, it may be difficult to segregate the tainted from
the untainted participants in the process. Large scale irregularities
including those which have the effect of denying equal access to
similarly circumstanced candidates are suggestive of a malaise
which has eroded the credibility of the process. At the other end
of the spectrum are cases where some of the participants in the
process who appear at the examination or selection test are guilty
of irregularities. In such a case, it may well be possible to
segregate persons who are guilty of wrong-doing from others
who have adhered to the rules and to exclude the former from
the process. In such a case, those who are innocent of wrongdoing should not pay a price for those who are actually found to
be involved in irregularities. By segregating the wrong-doers,
the selection of the untainted candidates can be allowed to pass
muster by taking the selection process to its logical conclusion.
This is not a mere matter of administrative procedure but as a
principle of service jurisprudence it finds embodiment in the
constitutional duty by which public bodies have to act fairly and
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reasonably. A fair and reasonable process of selection to posts
subject to the norm of equality of opportunity under Article 16(1)
is a constitutional requirement. A fair and reasonable process is
a fundamental requirement of Article 14 as well. Where the
recruitment to public employment stands vitiated as a
consequence of systemic fraud or irregularities, the entire process
becomes illegitimate. On the other hand, where it is possible to
segregate persons who have indulged in mal-practices and to
penalise them for their wrong- doing, it would be unfair to impose
the burden of their wrong-doing on those who are free from taint.
To treat the innocent and the wrong-doers equally by subjecting
the former to the consequence of the cancellation of the entire
process would be contrary to Article 14 because unequals would
then be treated equally. The requirement that a public body must
act in fair and reasonable terms animates the entire process of
selection. The decisions of the recruiting body are hence subject
to judicial control subject to the settled principle that the
recruiting authority must have a measure of discretion to take
decisions in accordance with law which are best suited to preserve
the sanctity of the process. Now it is in the backdrop of
these principles, that it becomes appropriate to advert to
the precedents of this Court which hold the field. [Para 33]
[1106-F-H; 1107-A-H]
2. The Committee noted that there was a delay of almost
five years in conducting the Tier-I examination. As a result, of
the 62,056 applicants only 8224 had appeared at the Tier-I
examination giving rise to an apprehension that adequate
information had not been furnished to candidates. The Committee
furnished examples of candidates who had secured high marks
in Tier - I examination but extremely low marks in the Tier-II
exam. Candidates also appeared to be concentrated from a
particular area of Delhi. The Committee found it "astonishing
that the whole marks lists is dominated by a particular section of
society" based on their surnames. There were instances of
candidates who had secured high marks in Tier-I failing to appear
at the Tier-II examination. The Committee was critical of the
role of DSSSB in failing to devote serious attention to the
irregularities which had taken place during the course of the
examination. [Para 49][1122-G-H; 1123-A-B]
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3. The Committee had representations before it from
candidates as well. The Committee found that members of the
same family were found to be sitting in close proximity both in
the Tier-I and Tier-II examinations of which details were tabulated
in the report. The Committee noted that it had addressed a
questionnaire to the officials of DSSSB in regard to the alleged
irregularities but they expressed their inability to answer the
queries. The Committee found that in the absence of
randomization, many cases had emerged where two or more
members of a single family sat in consecutive order and were
falling under the zone of probable selection. A majority of
candidates falling in the zone of selection appeared to belong to
the same geographical area. In this backdrop and considering
the voluminous nature of the documentary material, the
Committee was of the view that either the CBI or the Crime
Branch would be able to investigate into the matter. The matter
did not rest there. In its report, the first Committee found that
there were serious irregularities in the examinations conducted
by DSSSB for the post of Grade-II DASS. The report of the
Committee dwells on: (i) The delay of five years in holding the
Tier-I examination after the advertisement was released in 2009;
and (ii) The issuance of admit cards only through the electronic
mode, which was not prescribed in the advertisement.
[Para 50][1123-B-F]
4. The Committee was of the view that one of the main
reasons for the appearance of a small proportion of candidates as
compared to the applications was the inability of candidates to
access the internet to download the e-admit cards. This, in the
view of the Committee, prima facie vitiated the selection process.
DSSSB in its reply had noted that it would earlier remit the admit
cards by post but this gave rise to administrative difficulties as a
result of postal delays, changes in address and the issuance of
duplicate cards in place of those lost or damaged in transit.
[Para 51][1123-F-H]
5. On 5 June 2013, the Board had followed the pattern of
the UPSC and Railway Board and decided to also issue e-admit
cards which was to be given a wide publicity. On this aspect the
Committee noted that the advertisement had not mentioned that
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admit cards shall be issued through the electronic medium only.
A period of five years had elapsed since the date of the
advertisement. It was not possible for the candidates to keep a
vigil on the notifications of a single examination. In this backdrop,
the decision of DSSSB, during the course of the process, to allow
only e-admit cards was a deviation which resulted in a small
number of candidates appearing in the Tier-I examination. This
was clearly a pointer to the denial of equal access and opportunity
to all candidates in the selection process. The Committee
buttressed this finding by observing that there was a wide variation
between the marks obtained in the Tier-I and Tier-II
examinations. In the absence of randomization, it was found that
members of a family and close relatives sat in the same room and
details of these candidates were duly tabulated. The Committee
dealt with the explanation of DSSSB that the software for
randomization was not available prior to 28 June 2015 and that
steps have been taken for reshuffling candidates. The Committee
did not accept the explanation of the Board, noting that if
randomisation had been done in the Tier-I examination, it was
then inconceivable as to how family members and close relatives
sat in the same room. Moreover, it found it surprising that
randomisation had been done in Tier-I and not in Tier-II. Though,
according to DSSSB, manual reshuffling had been done for the
Tier- II examination, even then a considerable number of closely
related persons sat in proximity at the Tier-II examination.
Besides these irregularities, the Committee noted that there was
a racket which had led to the impersonation of candidates. This
racket involved a person who was the Chief Invigilator at a
particular centre. It was alleged that he was connected with a
coaching centre which was also involved in the leakage of the
question papers. The Committee noted the allegation that this
person had repeatedly fixed his duties in a choice of his own
centres with the help of DSSSB staff and there were instances of
impersonation which had emerged. The Committee proceeded
to tabulate these instances. Apart from this, the Committee found
that the videography was blurred, thumb impressions were
unrecognizable, jammers were not working properly and
candidates had been allowed to appear irrespective of their
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educational qualifications. Further, it was noted that allegations
of flying squad members passing answers onto candidates could
not be ruled out. Now, in this backdrop, the Secretary Vigilance
opined that the entire process of recruitment appeared to be
vitiated. [Para 52][1124-A-H; 1125-A]
6. The complaints were carefully analysed by the first
Committee and as noted earlier serious irregularities were found.
The irregularities were not confined to acts of mal-practice or
unfair means on the part of a specific group of persons. On the
contrary, the report of the Committee found deficiencies of a
systemic nature which cast serious doubts on the legitimacy of
the entire process of recruitment involving both the Tier-I and
Tier-II examinations. The order of the Deputy Chief Minister
dated 23 December 2015 did not differ with the conclusions of
the first Committee. In fact, the said order refrained from
commenting on the findings of the first Committee. All that the
Deputy Chief Minister's order directed was the narrowing of the
scope of further investigation to one of the irregularities, that is,
impersonation. In directing that a verification be carried out on
whether any of the candidates in the zone of selection had been
guilty of impersonation, the Deputy Chief Minister's order did
not wipe out the irregularities in the entire examination process.
It is not possible to accept the submission that after ordering a
verification on impersonation, nothing further remained to be done
and that there could be no further rejection of the sanctity of the
process on the basis of the report of the first Committee. It is
quite possible that the Deputy Chief Minister directed a further
investigation into the allegations of impersonation only to lend
credibility to the ultimate decision which he would take. Mr
Patwalia has made a strenuous effort to read from the explanation
submitted by DSSSB, urging that as many as three IAS officers
and other officers who had appended their signatures to the
explanatory note provided a justification to the defence that the
Tier-I and Tier-II examinations did not suffer from flaws. It must
be noted that the conduct of DSSSB and its officials was itself
under a cloud. Their explanation could by no means be regarded
as conclusive or binding upon the authorities of GNCTD. The
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Deputy Chief Minister in recommending that the entire process
be cancelled emphasised the systemic nature of the violations
which had taken place. These violations may or may not involve
all of the candidates within the ultimate zone of selection but that
in our view is beside the point for the simple reason that the
gravamen of the charge in the present case is not in regard to
the taint which attaches to a specific group of persons but to the
sanctity of the recruitment process as a whole. The precedents
of this Court sufficiently demonstrate that when the credibility of
an entire examination stands vitiated by systemic irregularities,
the issue then is not about seeking to identify the candidates
who are tainted. In the present case, as we have seen, there was
a basic denial of equal access to the Tier-I examination. The
nature of the allegations which were found to be substantiated
upon a careful examination by the first Committee showed that
the credibility of the process itself had been eroded. In such a
situation, where a decision is taken by the Government to cancel
the entire process, it cannot be held to be irrational or arbitrary,
applying the yardstick of fair procedure and proportionality to
the decision-making process. [Para 55][1126-B-H; 1127-A-D]
7. Recruitment to public services must command public
confidence. Persons who are recruited are intended to fulfil public
functions associated with the functioning of the Government.
Where the entire process is found to be flawed, its cancellation
may undoubtedly cause hardship to a few who may not specifically
be found to be involved in wrong-doing. But that is not sufficient
to nullify the ultimate decision to cancel an examination where
the nature of the wrong-doing cuts through the entire process so
as to seriously impinge upon the legitimacy of the examinations
which have been held for recruitment. Both the High Court and
the Tribunal have, in our view, erred in laying exclusive focus on
the report of the second Committee which was confined to the
issue of impersonation. The report of the second Committee is
only one facet of the matter. The Deputy Chief Minister was
justified in going beyond it and ultimately recommending that
the entire process should be cancelled on the basis of the findings
which were arrived at in the report of the first Committee. Those
findings do not stand obliterated nor has the Tribunal found any
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fault with those findings. In this view of the matter, both the
judgments of the Tribunal and the High Court are unsustainable.
[Para 57][1127-G-H; 1128-A-C]
8. The Tribunal while setting aside the decision to cancel
the recruitment process directed the Government to process the
appointments of all 281 candidates who were found to be within
the zone of selection though as a matter of fact only 6 of them had
moved the Tribunal. After DSSSB and GNCTD moved the High
Court in proceedings under Article 226 to challenge the decision
of the Tribunal, intervention applications were moved by several
candidates. These interventions were rejected by the High Court
and we have also extracted from the order passed during the
pendency of the proceedings on 15 December 2017 . The High
Court while dismissing the applications for intervention noted
that the cause of action had accrued on 15 March 2016 when the
entire examination had been cancelled, in spite of which none of
the intervening candidates had challenged the decision. The
judgment of the High Court in the present case was delivered on
13 January 2020 and it is only thereafter that this Court has been
moved under Article 136 of the Constitution. Some of the
petitioners who instituted Special Leave Petitions before this
Court had not even moved applications for intervention before
the High Court. Others did not pursue their remedies against
the order of the High Court dated 15 December 2017 for over 2
years. They have taken no steps to challenge the decision for
the cancellation of the examination. In view of the fact that this
Court has upheld the submissions of DSSSB and GNCTD and
proceed to set aside the judgment of the High Court, the SLPs
filed by the candidates would have to stand rejected, in any event.
[Para 59][1128-E-H; 1129-A-B]
9. For the above reasons, this Court order and direct:
(I) The facts which have come to light during the course of
the hearing of this batch of SLPs reflect on the serious flaws in
the process which was conducted by DSSSB. DSSSB and GNCTD
must now take adequate measures to ensure against the
recurrence of such instances which erode the credibility of and
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public confidence in the recruitment process. This court directs
that a comprehensive exercise to re-visit the modalities and
safeguards be carried out within a period of two months to ensure
that the probity of the recruitment process in future is maintained;
(ii) The notification dated 15 March 2016 of GNCTD cancelling
the Tier-I and Tier-II examinations held for recruitment to the
post of Head Clerk [(Grade II (DASS)] under post code 90/09 is
upheld. [Para 60][1129-B-E]
Bihar School Examination Board v. Subhas Chandra
Sinha & Others (1970) 1 SCC 648 : [1970] 3 SCR 963;
Anamica Mishra v. UP Public Service Commission,
Allahabad (1990) Supp. SCC 692: [1989] Suppl. SCR
124; Madhyamic Shiksha Mandal, MP v. Abhilash
Shiksha Prasar Samiti (1998) 9 SCC 236; Union of
India v. Rajesh P U Puthuvalnikathu (2003) 7 SCC 285
: [2003] 1 Suppl. SCR 883; Inderpreet Singh Kahlon
v. State of Punjab (2006) 11 SCC 356 : [2006] 1 Suppl.
SCR 772; Joginder Pal v. State of Punjab (2014) 6 SCC
644 : [2014] 6 SCR 383; Chairman All India Railway
Recruitment Board v. K Shyam Kumar (2010) 6 SCC
614 : [2010] 6 SCR 291; State of Tamil Nadu v. A
Kalaimani 2019 SCC Online 1002; Gohil Vishvaraj
Hanubhai v. State of Gujarat (2017) 13 SCC 621 :
[2017] 3 SCR 401 - relied on.
Case Law Reference
[1970] 3 SCR 963
relied on
para 34
[1989] Suppl. SCR 124
relied on
para 35
(1998) 9 SCC 236
relied on
para 36
[2003] 1 Suppl. SCR 883
relied on
para 37
[2006] 1 Suppl. SCR 772
relied on
para 38
[2014] 6 SCR 383
relied on
para 43
[2010] 6 SCR 291
relied on
para 44
[2017] 3 SCR 401
relied on
para 46
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CIVIL APPELLATE JURISDICTION:Civil Appeal Nos. 639640 of 2021
From the Judgment and Order dated 13.01.2020 of the High Court
of Delhi at New Delhi in WP(C) No. 5756 of 2017 and WP(C) No.
13373 of 2018.
With
Civil Appeal Nos. 643-644 of 2021, 641-642 of 2021, 645-646 of
2021, 649-650 of 2021, 647-648 of 2021, 651 of 2021, 653-654 of 2021,
652 of 2021, 655-656 of 2021, 657-658 of 2021, 659-660 of 2021.
Ms. Madhavi Divan, ASG, Ritin Rai, P.S. Patwalia, Sr. Advs.,
Sibo Sankar Mishra, Piyush Beriwal, Ahush Puri, B. V. Balaram Das,
Rajnish Kumar Jha, Parveen Kumar, Pulkit Tare, Sandeepan Pathak,
Ms. Malvika Trivedi, Aditya Shekhar, Chandra Shekhar, Prashant
Shekhar, Ashwani Saini, Kameshwar Nath Mishra, Sanjay Kumar Tyagi,
Sahil Tagotra, Salvador Santosh Rebello, Raghav Sharma, Ishant Arora,
Ms. Mitali Gupta, Advs. for the appearing parties.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J
This judgment has been divided into the following sections:
A Broad contours of the litigation
B Factual background
C Proceedings before the Tribunal
D Proceedings before the Delhi High Court
E Submissions
F The position in law
G The present case
A Broad contours of the litigation
1. Leave granted.
2. This judgment visits a familiar conundrum in service
jurisprudence. The constitutional values which undergird Articles 14 and
16 mandate that selection processes conducted by public authorities to
make recruitments have to be fair, transparent and accountable. All too
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often, human fallibility and foibles intrude into the selection processes.
Selection involves intense competition and there is no dearth of individuals
who try and bend the rules to gain an unfair leap in the race. Irregularities
in the process give rise to misgivings over whether the process has denied
equal access to all persons. The sanctity of the selection process comes
under a cloud. The detection of individual wrongdoing by candidates
may result in action being taken to exclude those whose credentials or
performance is tainted. But when the entire process is tainted, the
authority in charge of conducting it may decide to cancel the selection
as a whole. Judicial review is then invoked to challenge the decision to
cancel the entire process. The guiding principles have evolved over the
past five decades as new challenges emerged and novel attempts to
suborn the legitimacy of recruitment processes have come to the fore.
The Delhi High Court in the present case upheld the view of the Central
Administrative Tribunal ("Tribunal") that the cancellation of the entire
process was invalid but it confined the relief to six candidates who had
moved the proceedings before the Tribunal in the first instance. Like
other cases of its genre, this batch of appeals calls the court to balance
two competing considerations : the need to preserve public confidence
in and the sanctity of selection to public posts and the requirement of
observing fairness to candidates who invest time and resources in
attempting to clear through a selection. Both these considerations have
a constitutional foundation going beyond service and administrative law
principles. The issue has travelled to the court for resolution and the
path ahead requires us to revisit and evolve the law on the subject.
3. This batch of twelve appeals arises from a judgment of a Division
Bench of the High Court of Delhi dated 13 January 2020. Two petitions
under Article 226 of the Constitution were instituted by the Delhi
Subordinate Services Selection Board ("DSSSB") in order to question
the legality of the orders of the Tribunal dated 1 February 2017 and 27
February 2017. The Tribunal annulled the decision of the Government of
the National Capital Territory of Delhi ("GNCTD") to cancel the
recruitment process conducted for appointments to the post of Head
Clerk [(Grade 2) (DASS)] in the GNCTD. As a consequence, the Tribunal
directed the DSSSB to conclude the selection process for which the
Tier-I and Tier-II examinations had been conducted. The proceedings
before the Tribunal in two OAs1 were instituted by a total of six applicants,
three in each of the OAs. The Tribunal's decision entails that the benefit
1 OA No. 3941 of 2015 and OA No.1578 of 2016
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of its order setting aside the recruitment process would enure not only to
the six applicants who had moved it but to others as well though they
had not challenged the cancellation of the recruitment process. The High
Court by its judgment held that
(i)
The orders of the Tribunal dated 1 February 2017 and 27
February 2017 setting aside the cancellation of the
recruitment process were in accord with the legal position;
(ii)
The relief would stand confined to the six applicants who
had moved the Tribunal; and
(iii)
Each of the six applicants, who were Respondents before
the High Court would need to take the Tier-II examination
afresh within a stipulated period and the appointment process
would be taken to its logical conclusion for them.
4. The batch of SLPs which arises from the judgment of the High
Court can, for convenience of exposition, be bifurcated into three
categories :
(i)
GNCTD and DSSSB challenged the decision of the High
Court affirming the orders of the Tribunal which had set
aside the annulment of the recruitment process;
(ii)
The six candidates who succeeded before the Tribunal and
the High Court in regard to the setting aside of the decision
to cancel the recruitment process are aggrieved by the
direction of the High Court requiring them to appear in the
Tier-II examination afresh; and
(iii)
Candidates who had not challenged the annulment of the
recruitment process before the Tribunal but were the
beneficiaries of the decision of the Tribunal to set aside the
cancellation of the recruitment process are aggrieved by
the grant of relief by the High Court only to the six
candidates who had moved OAs before the Tribunal.
5. Category (iii) noted above consists in turn of the following :
(i)
persons whose intervention applications before the High
Court were dismissed during the pendency of the
proceedings inter alia by an order dated 15 December 2017;
and
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(ii)
persons who had neither moved the Tribunal in the first
instance nor had attempted intervention in the High Court
but have filed Special Leave Petitions under Article 136 of
the Constitution before this Court.
6. Having set out the broad contours of the path which the litigation
has followed, it is necessary now to turn to the specifics.
B Factual background
7. On 26 December 2009, DSSSB issued an advertisement2 inviting
applications for various posts among them being the post of [(Grade 2
(DASS)]/Head Clerk (post code 90/09) for a total of 231 vacancies in
Services Department - II, GNCTD. 62,056 applications were received,
and 61,179 were found eligible. The scheme of the examination comprised
of :
(i)
Tier-I - a preliminary examination for shortlisting candidates
for the main examination. This was an objective type test
carrying 200 marks and for a duration of 2.5 hours; and
(ii)
Tier-II - the main examination which was of a descriptive
type carrying 200 marks for a duration of 2.5 hours.
8. The Tier-I examination was conducted by DSSSB on 29 June
2014. 8,224 candidates appeared at the Tier-I examination. Notably 4,712
candidates (approximately 55 per cent) were drawn from 22 pin codes
of Delhi as against a total of 609 pin codes.
9. Between 14 October 2014 and 27 March 2015, complaints were
received by the DSSSB as to serious irregularities in the conduct of
Tier-I examination alleging:
(i)
leakage of question papers;
(ii)
mass cheating;
(iii)
allotment of common examination centres and rooms to
members of the same family; and
(iv)
impersonation of candidates.
10. The results of the Tier-I examination were declared on 21
October 2014 and 2,415 candidates were shortlisted. The Tier-II
examination was conducted on 29 March 2015 and its results were
declared on 15 July 2015.
2 Advertisement No.004/2009
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First Committee
11. Between 30 July 2015 and 1 February 2016, several complaints
were received in regard to alleged irregularities in the conduct of both
the Tier-I and Tier-II examinations. The Deputy Chief Minister of Delhi
constituted a committee on 22 August 2015 consisting of the Director
(Vigilance) and District Magistrate (East) to enquire into the complaints
regarding irregularities in the conduct of the Tier-I and Tier-II
examinations. The Committee, in its report dated 10 September 2015
and 18 September 2015, arrived at the prima facie conclusion that there
were serious irregularities, including cheating and impersonation both in
the course of the Tier-I screening examination and Tier-II main
examination. The Committee opined that the examination should have
been cancelled at the stage of declaring the Tier-I result and the matter
should be referred to the Economic Offences Wing / Crime Branch of
Delhi Police for a thorough investigation. The salient findings of the
Committee are extracted below:
"35. On preliminary investigation of the case, based on some
documents/information received from DSSSB and inputs given
by the complainant, prima facie it appears that huge irregularities
have been committed in Tier-I and Tier-II Examination.
Randomization is a basis component of any competitive examination
for selecting suitable candidates. However, in the instant case
whether randomization of the application in Tier-I &Tier-II have
been done or not, the outcome of basic investigation is that so
many cases emerged .where two or more members of a single
family sat in the examination one after the other (consecutively)
and they are also coming under zone of probable selection, this
defeat [defeats] purpose of fair practice of recruitment procedure.
36. Besides, the complainant in their complaint time and again
levelled allegation that majority of candidates coming under zone
of selection appears having definite geographical reason [region].
This has been verified from the available documents provided by
DSSSB and found prima facie substantiated.
37. Occurrence of similar malpractices in the previous exams
conducted by DSSSB may also not be ruled out.
38. The documents required in the matter are of voluminous nature
and each document needs full attention and thorough investigation
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accordingly for which huge man-powers [man-power] is required.
The thorough investigation will require approaching doubtful
candidates, their interrogation, trapping of culprits, linking various
clues etc. Only CBI or Crime branch can deal with this [these]
kind of cases as they have proper manpower, investigation
techniques, police powers for investigation and enormous
experience in cracking such cases."
Based on the preliminary findings of the first Committee, a
questionnaire was prepared by the Directorate of Vigilance and was
addressed to the Chairperson of DSSSB on 24 September 2015 for his
comments. The questions which were posed included the following:
"(i) What was the reason for the delay of nearly 5 years in holding
the Tier-I Exam?
(ii) Was there scrutiny of the applications to ascertain the eligibility
of candidates in terms of the Recruitment Rules ('RRs')? Who
were the Officers/officials engaged in that exercise'?
(iii) Since a number of candidates did not have easy access to
internet facility, were admit cards sent to all eligible candidates
through speed post as well? Who was the officer who had taken
the decision to inform the candidates by e-mail/online?
(iv) Was there a randomization of roll numbers of candidates for
the Tier-I and Tier-II exams and if not, what were the reasons for
the same? Who were the officers/officials responsible for the
failure to conduct randomization?
(v) What are the names and designations of officers responsible
for allocation of exam centres to candidates and for deployment
of Chief Invigilators, Observers and Assistant Observers at such
exam centres? The names of the offices involved in the process
of finalising the papers. What was the procedure /policy for setting
papers and who was the competentauthority for that purpose?
(vi) What is the procedure/policy for selecting printing process
for printing the question papers? What are the names of the officers
involved in its supervision'?
(vii) What is the procedure for getting printed papers in 'the
premises and in whose custody they remained?
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(viii) What is the action taken by the DSSSB on the complaints in
relation to the conduct of Tier-I exam, on the allegations of
impersonation, cheating and leakage of exam papers prior to
conducting the Tier-II exam? What action was taken against the
specific officials who were named in complaints?
(ix) Whether there was any mal-functioning of the jammer and
videography at the Shakarpur Exam Centre and what action was
taken by the DSSSB against such officials?"
12. On 1 October 2015, DSSSB provided its comments stating
that
(i)
No record was available to explain why the examination
for which an advertisement was issued in 2009 was not
conducted until 2014. By 2013 over 25,000 vacancies had
to be filled and DSSSB has been conducting regular
examinations to clear the backlog;
(ii)
On 1 June 2013, a meeting was convened by DSSSB to
discuss sending physical admit cards by post. Following the
example of UPSC and the Railway Board, a decision was
taken to issue e-admit cards which could be downloaded
by candidates from anywhere and wide publicity was given
of the procedure in the newspaper apart from the DSSSB
website. The recourse to e-admit cards was taken because
of the considerable delay since the issuance of the
advertisement in 2009, having regard to the fact that there
could be changes of addresses, postal delays and difficulties
in issuing duplicate cards in the event of loss or damage;
(iii)
For the Tier-II examination, randomisation was done. Before
28 June 2015, no software was available for randomisation.
However, by way of abundant precaution, in view of the
complaints which had been received, a manual reshuffling
of the sitting arrangements for candidates fetching the
highest marks was done so as to ensure the maintenance
of adequate distance. The roll numbers of candidates against
whom some complaints were received were highlighted in
the sitting plan for all invigilators. Moreover, the question
papers were printed in four series as a result of which
candidates sitting in proximity would not necessarily have
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the same question paper. There was, in any event, a natural
randomization on account of absentees and failed
candidates;
(iv)
There was no substance in the allegation of impersonation
since invigilators at the examination centres were required
to determine the identity of each candidate on the basis of
details, photographs in the attendance sheet and admit card
of each candidate;
(v)
There was no mal-functioning of the jammers and
videography; and
(vi)
DSSSB did not carry out any scrutiny of the eligibility of
candidates at the initial stage and this was done only for
candidates who were able to finally get through the selection
procedure.
13. The response to the questionnaire was placed before the first
Committee which submitted a detailed report dated 12 October 2015.
The principal findings in the report of the Committee were:
(i)
There was no justification for the delay of five years in
conducting the Tier-I examination after the issuance of the
advertisement;
(ii)
The advertisement did not stipulate that admit cards would
be issued in the electronic form. Failure to send admit cards
through speed post to each of the applicants resulted in a
sharp decline in the number of candidates who appeared
for the Tier-I examination;
(iii)
DSSSB had either not commented upon or had given vague
responses to the allegations of serious irregularities.