Adequate measures to be taken to avoid instances that erode credibility in the recruitment process

Sachin Kumar & Ors. v. Delhi Subordinate Services Selection Board (DSSSB) & Ors.

Civil Appeal Nos 639-640 of 2020 @ SLP ©Nos 5785-5786 of 2020

Decided on March 3, 2021.

Counsel for Appellants: Mr P S Patwalia, Mr. Chandra Shekar, Mr Ritin Rai

Counsel for Respondents: Ms Madhavi Divan

A two judge bench of the Supreme Court consisting of Justice D.Y. Chandrachud and Justice M.R. Shah decided the present case. The Court in the current case reviewed the decision of the Delhi High court affirming the judgment of the Central Administrative tribunal annulling the cancellation of the validity of the examination process. The Court held that the judgments of both the tribunal and the Delhi High court were not sustainable. The Court also addressed the conundrum faced by the six applicants who approached the tribunal.

Applications were invited by the Delhi Subordinate Services Selection Board (DSSSB) for various posts among them 231 being vacancies in the Services Department- II, GNCTD. The examination consisted of two rounds, Tier-1 preliminary examination consisting of objective type questions and Tier-2 a descriptive exam. The Tier-1 examination was held in June of 2014. Complaints arose regarding the systematic irregularities in the conduct of the Tier-1 exam alleging malpractices. A committee was established to look into these complaints of alleged irregularity in the conduct of both rounds of the examination. The First Committee opined that the examination should have been cancelled at the stage of declaring the Tier-I result. Based on the findings of the First Committee a questionnaire was formulated by the directorate of vigilance and was addressed to the Chairperson of DSSSB in September of 2015.

On the basis of the response by the DSSSB the secretary of vigilance submitted a report to the Deputy Chief Minister of Delhi. The deputy chief minister issued an order directing that all candidates who were in the zone of eligibility after the examination be checked for impersonation before the declaration of the results. A second committee was set up to look into the identity and eligibility of the qualified applicants, further on the recommendation of the deputy chief minister that the selection process was considered vitiated and cancelled. An appeal before the tribunal by three candidates contended that allegations as to irregularities were made by unsuccessful candidates hoping to get a second chance. Further on March 2016 three more candidates filed an appeal before the tribunal, subsequent to the issuance of the order of cancellation of the recruitment process. The tribunal found the appellants “free from blame’ on the basis of the findings of the second committee report.

The tribunal set aside the order dated 15th March 2016 cancelling the selection process, clarifying that the appointments must be offers to the candidates would be subject to investigation in its decision on 1st February 2017. The principal findings of the tribunal were that the cancellation of the election process must be last resort and that efforts must be made to separate the candidates who were truly untainted and eligible to occupy the vacancies, the cancellation of the entire examination would be arbitrary and unjustified. The tribunal’s judgment was questioned before the High Court in writ petitions instituted by DSSSB and GNCTD under Article 226 of the Constitution. During the pendency of the petitions, intervention applications were moved before the High Court by candidates who had not instituted proceedings before the tribunal. The High Court dismissed the intervention application .On 13th January 2020 the division bench of the High Court upheld the tribunal’s judgment. The review of this judgment was sought before the Supreme Court.

The Additional Solicitor General appearing on behalf of DSSSB and GNCTD pleaded that the entire recruitment process was found to be tainted by fraud as a consequence of which it became impossible to disentangle the tainted from the untainted candidates. She urged that the order by the deputy chief minister was based on an extensive process of investigation by the established committees and its findings. Reasons demonstrating that the process stood entirely vitiated was submitted and that the first committee concluded there was a much larger impersonation, randomization was not achieved, serious doubts in regard to whether arrangements for installing jammers were found, etc. The learned counsel also established that the examination was found to suffer from serious irregularities and the fact that some amongst the candidates are untainted does not negate the decision of the government to scrap the decision.

Senior Advocate P S Patwalia appearing on behalf of the candidates urged the court to set aside the cancellation of the selection of the entire process, as it was eminently proper. He urged the six candidates to whom the relief was granted and confirmed by the High court need not be required to appear at the Tier-2 examinations once the cancellation of the result was set aside. Mr. Chandra Shekar, appeared on behalf of the candidates who had filed the dismissed interventions. Mr Ritin Rai, learned Senior Counsel elaborated upon the fact that DSSSB had in its recommendation indicated that there was no systematic flaw or irregularity in the recruitment process.

The Court reasoned that where unfair means has taken place on a systematic scale it may be difficult to segregate the tainted from the untainted:

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 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. (Para 33)

The Court also highlighted the importance of equality and fairness in the procedure of selection as guaranteed under Article 14 of the Constitution:

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. (Para 33)

The Court placed heavy reliance on the judgment in Inderpreet Singh Kahlon v. State of Punjab, (2006) 11 SCC 356, wherein the Court highlighted the need for maximum efforts in differentiating between the tainted and the innocent to ensure equality to all. Keeping in view the findings of the said case, the Court set aside the judgment of the High Court by stating:

The Court held that the issue of the entire selection process being vitiated would have arisen only if the findings of the Committee were that it was not possible to distinguish the cases of the tainted from the non-tainted candidates. The Court held that the reasons for holding the entire process should be vitiated were the same as those which had been urged before the High Court earlier. Moreover, a crucial development which had taken place after the remand was that the State had come forward and indicated its willingness to take back candidates who were not tainted and were selected on the basis of merit. In this backdrop, the order passed by the High Court was set aside. (Para 43)

The Court noted:

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. (Para 55)

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)

The Court further opined that both the tribunal and the High Court laid emphasis on the second report which dealt with a single faceted problem:

Recruitment to public services must command public confidence. Persons who are recruited are intended to fulfill 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. (Para 57)

The Court allowed the appeals filed by the Respondents and set aside the judgment of the High Court.

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Shreya Shetty