JOGINDER PAL Vs STATE OF PUNJAB
Bench: B.S. CHAUHAN,A.K. SIKRI
Case number: C.A. No.-005589-005605 / 2014
Diary number: 26619 / 2013
Advocates: KAVEETA WADIA Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 5589-5605 of 2014
JOGINDER PAL & ORS. ETC. .....APPELLANT(S)
VERSUS
STATE OF PUNJAB & ORS. .....RESPONDENT(S)
W I T H
CIVIL APPEAL NOS. 5606-5608 OF 2014
CIVIL APPEAL NOS. 5609-5611 OF 2014
CIVIL APPEAL NO. 5612 OF 2014
CIVIL APPEAL NO. 5613 OF 2014
CIVIL APPEAL NOS. 5614-5621 OF 2014
CIVIL APPEAL NO. 5622 OF 2014
CIVIL APPEAL NO. 5623 OF 2014
CIVIL APPEAL NO. 5624 OF 2014
J U D G M E N T
A.K. SIKRI, J.
One Mr. Ravinderpal Singh Sidhu
was the Chairman of the Punjab Public Service Commission (for
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short, 'PSC') between 1996-2002. During his tenure as the
Chairman, some appointments were made in the Executive
Class–I between 1998-2001, by way of direct recruit as well as by
nomination, as provided in the Rules. Appointments of judicial
officers were also made in four batches within the same period.
On getting tip to the effect that for making such appointments Mr.
Sidhu had received bribe from many people, raids were conducted
in his house sometime in the year 2002, on more than one
occasion. A huge sum of money, i.e., Rs. 16 crores
(approximately), was recovered from his custody and from other
relatives of Mr. Sidhu. This led to lodging of the First Information
Reports (FIRs) against him, leading to criminal prosecution
primarily under the provisions of the Prevention of Corruption Act,
1988. In these FIRs, some of the officers of the Executive Branch
and Allied Services of the Punjab Civil Service (for short, ‘PCS’)
were also implicated. Smelling rat in the appointments in the PCS
Executive Branch and Allied Services Branch, as well as judicial
appointments, result sheets of the nominated candidates and the
answer sheets of PCS Executive Branch and Allied Services
Branch were seized. On going through the same, Vigilance
Bureau of the State of Punjab informed the Chief Secretary,
Punjab that most of the examinations held during the tenure of Mr.
Sidhu were tainted. This led to spate of actions taken by the State
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Government. In the first instance, the services of all officers in the
category of Nominated Executive Officers, who were about to
complete their period of probation, were terminated on May 23,
2002. This was done by passing orders of termination simpliciter
purporting to be in terms of Rules, i.e., by terminating the
probation. Thereafter, vide orders dated August 24, 2002,
services of the direct recruits, Executive Class-I and II were
terminated by way of dismissal on the premise that criminal
prosecution had been launched against Mr. Sidhu. So far as
judicial officers are concerned, the Chief Justice of the High Court
constituted a Committee to go into the allegations and also the
news items appearing in the media alleging that wards of some
sitting Judges of the Punjab and Haryana High Court had been
favoured by the Chairman of the PSC. The said Committee
submitted its report recommending cancellation of all the
appointments of the judicial officers who were recruited in four
batches from 1998 till 2002. This report was accepted by the Full
Court and was sent to the Government. Initially, the Government
of Punjab raised a query as to what was the basis for
recommendation of cancellation of appointments of the 1998
batch candidates, as selection of that batch was not in question.
Another Committee was constituted and on the basis of report,
which was approved by the Full Court, recommendation was
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reiterated. As a consequence, the services of all these judicial
officers also came to be terminated.
2)All these persons, who services had been terminated, belonging
to Executive, Allied Services as well as Judicial Branches,
challenged these actions by filing writ petitions in the High Court.
We describe hereinbelow the manner in which the cases of
Executive and Allied Services Branches were dealt with and the
outcome thereof, as in the present case we are concerned with
the officers of PCS Executive Branch and Allied Services Branch.
However, since the judgment rendered by this Court in respect of
termination of judicial officers has some bearing on the present
case, we shall take note of the outcome of the cases filed by the
judicial officers as well.
3)Insofar as PCS Executive Branch and Allied Services Branch
are concerned, a large number of writ petitions were filed by
almost all the officers whose services were terminated; be it direct
recruits or nominated officers. The matter was referred to the Full
Bench, having regard to the importance of the question of law
involved. The Full Bench presided by the then Chief Justice of the
High Court and two senior most Judges, after hearing these
petitions at length, decided those writ petitions by judgment dated
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July 07, 2003, which is reported as Amarbir Singh & Ors. v.
State of Punjab & Ors., 2003 (5) SLR 398. By means of this
judgment, the Full Bench dismissed all the writ petitions, thereby
confirming the action of the State Government terminating the
services of all the officers of PCS Executive Branch and Allied
Services Branch as well as the judicial officers. As per the High
Court, the decision of the Government to terminate the services
was because of the reason that the entire selection process in
respect of PCS Executive Branch and Allied Services Branch was
so tainted and vitiated, the Government was left with no alternative
but to declare the entire selection as null and void. The case set
up by the State of Punjab was that during his tenure as Chairman
of PSC from September 1996 to March 26, 2002, Mr. Sidhu
completely usurped the powers of the Commission unto himself,
to the exclusion of all other members, and manipulated the system
for ensuring the selection of those who had paid money or came
with the recommendations. It had relied upon the statements of
Mr. Jagman Singh, a confident and tout of Mr. Sidhu (who had
become approver in the criminal case), who disclosed the modus
operandi adopted by Mr. Sidhu. It was pointed out that during the
investigation it was revealed that question papers and answer
scripts were smuggled out of the headquarters of the PSC. At
times, blank answer sheets were given to the prospective
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candidates and special instructions were given to the examiners
towards higher marks to favoured candidates and at the same
time less marks were awarded to more meritorious candidates.
By accepting the bribes to favour such persons, Mr. Sidhu had
amassed assets worth Rs. 22 crores. It was averred that the
entire selection process was completely vitiated and it was not
possible to separate the meritorious candidates from others and,
therefore, a decision was taken to terminate all the appointments.
4)The High Court, after examining the matter, accepted the
aforesaid argument of the State Government to the effect that it
was not possible to segregate the tainted candidates from
untainted ones, leaving no option for the State Government but to
cancel the entire selection process. Few judgments of this Court
were relied upon to hold that in such circumstances, when the
selection process is found to be vitiated, the Administration had a
right to cancel the selection process and while doing so it was not
necessary to adhere to the principles of natural justice, which had
no role to play in matters like these.
5)Aggrieved by the aforesaid judgment in Amarbir Singh’s case
(supra), all these officers whose services were terminated
approached this Court. Special leave was granted in all these
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petitions and civil appeals were heard and decided by this Court,
with lead case known as Inderpreet Singh Kahlon & Ors. v.
State of Punjab, (2006) 11 SCC 356. Since this judgment is
sheet anchor of the appellants before us, in the second round of
litigation, we would like to take note of this judgment in some
detail.
6)It can be easily guessed, as it is so obvious, that the case of the
appellants in Inderpreet Singh Kahlon’s case (supra) was that
the action of the State Government and the stamp of approval of
the High Court in cancelling the entire selection process was
impermissible. The appellants therein had argued that there was
no basis for such a finding, namely, the entire selection process
had been vitiated and it was necessary for the Government to
separate cases of tainted persons from non-tainted ones and to
take action against only those who were tainted. It was argued
that by not undertaking such an exercise and clubbing together
tainted as well as non-tainted persons, two unequal classes were
clubbed together thereby meting out discriminatory treatment qua
those who were without blemish and it amounted to violation of
Articles 14 and 16 of the Constitution of India. The appellants in
the said case had also argued that while holding that entire
selection process was vitiated by corruption and cancelling the
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same after appointees had put in few years of service, the High
Court had applied the principle of ‘mass cheating cases’, which
principle was applicable only in the cases of examination in
academic institutions and not the examination for the purpose of
public employment. Pertinently, this Court generally accepted the
aforesaid submissions of the appellants. From the reading of the
judgment, one can discern the following principles:
(a) An appointment made in violation of
Articles 14 and 16 of the Constitution of India would be void. It
would be a nullity. Since the services of the appellants were
terminated not in terms of the rules but in view of the commission
of illegality in the selection process involved, the applicability of
the relevant provisions of the statutes as also the effect of the
provisions of Article 311 of the Constitution need not be
considered.
(b) Before a finding that an appointment has
been made in violation of Articles 14 and 16 of the Constitution
can be arrived at, the appointing authority must take into
consideration the foundational facts. Only when such foundational
facts are established, can the legal principles be applied. When
the services of employees are terminated inter alia on the ground
that they might have aided and abetted corruption and, thus, either
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for the sake of probity in governance or in public interest their
services should be terminated, the court must satisfy itself that
conditions therefor exist. The court while setting aside a selection
may require the State to establish that the process was so tainted
that the entire selection process is liable to be cancelled. In a
case of this nature, thus, the question which requires serious
consideration is as to whether due to the misdeed of some
candidates, honest and meritorious candidates should also suffer.
(c) A distinction exists between a proven case
of mass cheating for a board examination and an unproven
imputed charge of corruption where the appointment of a civil
servant is involved. Only in the event it is found to be impossible
or highly improbable that the tainted cases can be separated from
the non-tainted cases could en masse orders of termination be
issued. Both the State Government as also the High Court in that
view of the matter should have made all endeavours to segregate
the tainted from the non-tainted candidates.
(d) Cases which may arise where the
selection process is perceived to be tainted may be categorised in
the following manner:
(i) Cases where the “event” has been investigated.
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(ii) Cases where CBI inquiry took place and was
completed or a preliminary investigation was
concluded.
(iii) Cases where the selection was made but
appointment was not made.
(iv) Cases where the candidates were also ineligible
and the appointments were found to be contrary to
law or rules.
If the services of appointees who had put
in a few years of service were terminated, compliance with three
principles at the hands of the State was imperative viz.: (1) to
establish satisfaction in regard to the sufficiency of the materials
collected so as to enable the State to arrive at its satisfaction that
the selection process was tainted; (2) to determine the question
that the illegalities committed went to the root of the matter, which
vitiated the entire selection process. Such satisfaction as also the
sufficiency of materials were required to be gathered by reason of
a thorough investigation in a fair and transparent manner; (3)
whether the sufficient material present enabled the State to arrive
at a satisfaction that the officers in majority had been found to be
part of the fraudulent purpose or the system itself was corrupt.
(e) Once the necessary factual findings as
enumerated above are arrived at, or it is found impossible or
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highly improbable to separate tainted from untainted cases, all
appointments traceable to the officers concerned could be
cancelled. But admittedly, in the present case, although there had
been serious imputations against Ravinderpal Singh Sidhu being
at the helm of the affairs of the State Public Service Commission,
all decisions made by the Commission during his tenure are yet to
be set aside.
7)Applying these principles to the facts of the case, the Court
found that no candidate for the year 2001 had been appointed
and, therefore, persons who were selected in that year were on a
different footing as merely a person comes in the selected list, he
has no right to be appointed on that ground. However, held the
Court, those who had already been appointed and had completed
about three years of service, some of them had even passed
departmental test and some were given higher responsibilities and
had even completed the period of probation or nearing the
completion thereof and were working to the satisfaction of the
authorities concerned, different yardsticks were to be applied while
terminating their services. As a matter of fact, the Court found
that apart from inferences drawn on certain facts and in particular
the circumstances enumerated by the High Court, it was difficult to
accept the contention of the State Government that it was
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absolutely impossible for it to separate the innocent candidates
from the tainted ones. In the opinion of the Court, by appointing
an independent scrutiny committee it was still possible to sift the
evidence and separate tainted candidates from the innocent ones.
The Court also recorded that relevant records were still available
and had not been destroyed, which included question papers,
answer sheets and other documents. Since these records were
still available, a fair investigation into the whole affair was still
possible. Such an exercise was, therefore, needed when it had
not been found that all the appointments were made on
extraneous considerations, including monetary consideration. It
was, thus, held that the High Court was not right in applying the
principle of ‘mass cheating cases’ in the instant case. The Court
concluded the matter in the following manner:
(a) If services of appointees who had put in a
few years of service are to be terminated, compliance with
following principles by State is imperative: (1) sufficient materials
are to be collected, to be gathered by thorough investigation in fair
and transparent manner; (2) illegalities committed must go to the
root of the matter, vitiating entire selection process; and (3) the
appointees/officers in majority must be found to be part of the
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fraudulent purpose or the system itself must be found to be
corrupt.
(b) In the present case, above principles not
having been adhered to and since it could not be said that a fair
investigation into the suspected selection process to the Punjab
PCS for the years 1998-2001 was an impossible task, or despite
availability of a large part of the records a thorough investigation
had been made so as to arrive at a satisfaction that the entire
selection process suffered from a large-scale fraud, High Court
was not right in applying the principle of mass cheating cases in
the instant case and approve the en masse termination of services
of the appellants by the State.
(c) Impugned orders of State Government and
High Court were set aside. Matters were remitted to High Court
for consideration afresh, status quo to be maintained in the
meantime. High Court was directed to constitute two independent
Scrutiny Committees, one relating to the executive officers and the
other to the judicial officers. Various directions were given for
functioning of said Committees and expeditious disposal of the
matters, and State was directed to file report in this Court in each
individual case. It was further directed to unearth the scam and
spare no officer involved in wrongdoing, howsoever high he may
be.
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8)Dealing with the case of judicial officers whose services were
terminated, the Court took the view that they had not been fairly
treated by the High Court and deserved better treatment. In their
cases also the Court directed fresh inquiry. That aspect we would
discuss in detail at the appropriate stage as in the present case
we are not concerned with the cases of judicial officers.
9)After the judgment in Inderpreet Singh Kahlon’s case (supra),
a Committee of three Judges of the High Court was constituted
with the specified task to separate the tainted candidates from the
non-tainted candidates selected to the executive post by the PSC.
The said Committee undertook the mammoth and painstaking
task with deep scrutiny of the case of each and every candidate.
This Committee submitted its report dated February 08, 2007. It is
pertinent to note that the Committee could achieve the task of
segregating tainted candidates from the innocent ones, meaning
thereby the Committee could pinpoint those candidates who had
got selected were selected for oblique considerations. It meant
that others against whom no such taint was found had been
selected on their own merit and performance in the written
examination as well as viva voce. That is the reason that these
candidates were put in non-tainted category. However, even when
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the Committee was able to achieve this result, as mandated by
this Court in Inderpreet Singh Kahlon’s case (supra), the
Committee also went into another aspect, namely, whether it could
be stated that the process of selection could be described as
fraudulent, tainted and arbitrary. Looking into the matter from this
angle, the Committee came to the conclusion that the entire
processes of selections to the premier executive post was carried
out by a well-planned scheme of deception, forgery and fraud and,
therefore, deserved to be set aside in their entirety. The final
analysis of the report dated February 08, 2007 is as under:
“Firstly, it is possible to infer that in the processes of selection to which the present investigation is limited, there were 40 tainted candidates. This inference would, however, be subject to an opportunity to be afforded to them during the course of re-hearing of the matter on the judicial side, in terms of the direction of the Apex Court in Inderpreet Singh Kahlon’s case (supra).
Secondly, the process of selection under reference (within the ambit of investigation of the Vigilance Department), can be described as fraudulent, tainted and arbitrary. The said processes of selection were clearly rifle and abounding with manipulations, carried out by a well planned scheme of deception, forgery and fraud; executed for showing favour, or for consideration. And as such, the entire processes of selection, to the premier executive posts, which were subject matter of investigation at the hands of the Vigilance Department, deserve to be set aside in their entirety.”
10)In the light of this report, the original writ petitions were
reheard, as a result of remand of these cases to the High Court,
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as directed in Inderpreet Singh Kahlon’s case (supra). Matter
was referred to the five Judge Bench of the High Court. The High
Court has accepted the report thereby giving its approval to that
part of the report as well which has treated the entire selection
process to be vitiated. As a result, all the writ petitions are
dismissed again vide judgment of the Full Bench rendered on May
31, 2013.
11)Insofar as those cases wehre the petitioners were found to be
tainted candidates, after the scrutiny by the Committee, the
obvious result was that the writ petitions were dismissed on this
ground. However, even in respect of non-tainted candidates, the
High Court has held that it was permissible for the Government to
cancel the entire selection process, once it is found that the
process of selection itself is a result of manipulations carried out
by a well-planned scheme of deception, forgery and fraud.
12)We will proceed to discuss the cases of tainted and non-tainted
candidates seperately.
TAINTED CANDIDATES
13)The particulars of candidates who are facing criminal trial are
as under:
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S.No. Case No. Name Remarks 1. CA Nos. 5606-5608/2014 Jiwan Kumar GargKamal Kumar PCS (EB) Direct 2. CA No. 5622/2014 P.S. Sodhi PCS Nominated
3. CA Nos. 5614-5621/2014
O.P. Verma Inderdeep Kahlon Jasbir Singh Toor H.L. Bansal Parvinderpal Singh Jarnail Singh Balraj Kaur Rajinder Sidhu
PCS Nominated
4. CA No. 5623/2013 Bhupinderjit Singh PCS Nominated
14)As far as these cases are concerned, they hardly pose any
challenge. As it is specifically found that the aforesaid persons
have indulged in unfair means and have been selected either by
paying bribe or because of other extraneous reasons and not on
their merit, their writ petitions have been rightly dismissed by the
High Court. It was argued by Mr. Manoj Swarup, learned counsel
appearing for these appellants, that those who are facing trial may
be acquitted after investigation. Likewise, some of those who are
even convicted, their appeals are pending and there is a possibility
that their appeals are allowed thereby setting aside the conviction.
Therefore, such a decision to terminate their services could not
have been taken at this stage.
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This argument is totally unimpressive
and does not hold any water. Such candidates who were selected
with unfair and illegal means cannot have the audacity to say that
they should be reinstated in service and allowed to continue till
their appeals are decided. In any case, having found that they are
tainted candidates and their entry into public service was soiled,
the decision to terminate their services becomes perfectly justified.
In respect of these appellants, the High Court has found that FIRs
have been registered against them and they definitely carry a
trace, stain or blemish that they were tainted. FIRs were
registered when during investigation the Vigilance Bureau
recorded statements of Mr. Sudhu, Jagman Singh and Randhir
Singh Gill under Sections 161 and 164 Cr.P.C. The modus
operandi of conducting the manipulations in the written
examination was disclosed by them. Question papers were given
to Mr. Jagman Singh to be shown to the candidates who were to
appear in the written examination conducted by the PSC. The
same were to be collected from the official residence of Mr. Sidhu,
i.e. House No. 914, Sector-39, Chandigarh, and some times to be
collected from Mrs. Pritpal Kaur, the mother of Mr. Sidhu from
House No. 549, Sector-10, Chandigarh. Candidates were then
shown these question papers during the night preceding the
examination at the residence of Mr. Jagman Singh. The above
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procedure was also followed at the residence of the mother of Mr.
Sidhu. Mr. Jagman Singh was deputed to the residences of
influential persons for showing the question papers to the
concerned candidates.
In this backdrop, the High Court rightly
covered these persons as tainted persons, ascribing following
meaning to the expression 'taint':
“The word 'taint' as per the New Shorter Oxford English Dictionary (Vol.-II) can be expressed to mean a trace, 'stain' or a 'blemish'. It denotes some evil quality, a contaminating or corrupting influence. It can lead to mean an imbue with any thing objectionable or to contaminate or infect. The word 'taint' when used as a verb means dishonest, destroy integrity, vitiate, tarnish and degenerate morally.”
Therefore, all these appeals are
dismissed, except Civil Appeal No. 5606 of 2014 filed by one
Randeep Singh, inasmuch as against him no case is registered as
he is ultimately found innocent. We shall deal with his case along
with non-tainted candidates.
NON-TAINTED CANDIDATES/DIRECT RECRUITMENT
15)The particular of those appellants who fall in this category of
non-tainted candidates are as under:
S.No. Case No. Name Remarks 1. CA No. 5589/2014 Joginder Pal
Balkaran Singh Shishpal Mandeep Singh
Tehsildar
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Baljinder Singh Gurdev Singh Ramesh Kumar
2. CA No. 5590/2014 Sarabjot Singh Sidhu ETO 3. CA No. 5591/2014 Harcharan Singh PCS (EB) 4. CA No. 5592/2014 Amarjit Singh PCS (EB) 5. CA No. 5593/2014 Gurjit Singh PCS (EB) 6. CA No. 5594/2014 Jagjit Singh PCS (EB) 7. CA No. 5595/2014 Anita Darshi PCS (EB) 8. CA No. 5596/2014 Jaspal Singh Gill PCS (EB)
9. CA No. 5597/2014 Rajan Sharma Prabhjot Singh Dilbagh Singh
EO
10. CA No. 5598/2014 Balwinder Singh AR 11. CA No. 5599/2014 Raj Singh DFSO 12. CA No. 5600/2014 Rupinder Pal Singh PCS (EB) 13. CA No. 5601/2014 Monish Kumar PCS (EB) 14. CA No. 5602/2014 Rajesh DhimanHarsuhinder Pal Singh PCS (EB) 15. CA No. 5603/2014 Paramjit Singh PCS (EB) 16. CA No. 5604/2014 Surinder Kaur PCS (EB) 17. CA No. 5605/2014 Manpreet Kaur ETO 18. CA No. 5612/2014 Rubinderjit Singh Brar PCS (EB) 19. CA No. 5613/2014 Sukhpreet Singh Sidhu PCS (EB)
20. CA No. 5609-5611/2014 Amit Talwar Rajdeep Brar Gaurav Duggal Ramandeep Pandher
PCS (EB) PCS (EB)
AR AR
21 CA No. 5624/2014 Bikramjit Shergill PCS (EB)
Before discussing these cases, we would
like to have a peek into the Report of the Committee dated
February 08, 2007, which is placed on record.
REPORT OF THE COMMITTEE DATED FEBRUARY 08, 2007
16)The report starts with noticing the directives of this Court in
Inderpreet Singh Kahlon’s case (supra). It specifically mentions
that to implement the directions contained in the said judgment,
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the then Acting Chief Justice had constituted a Committee of three
Judges “to submit a report, on the basis of investigations carried
out by officers of the State Government, so as to separate the
tainted candidates from the non-tainted candidates, selected to
executive posts by the Punjab Public Service Commission, during
the Chairmanship of Shri Ravinderpal Singh Sidhu”. Thus, the
Committee knew the scope of exercise which it was to carry out,
namely, to separate the tainted candidates from the non-tainted
candidates. This aspect is thereafter gone into in detail with in-
depth scrutiny and analysis of the records and material placed
before it, which not only pertained to the selection process, i.e.
question and answer sheets, etc., but also records which surfaced
during investigation into the FIRs filed against Mr. Sidhu and other
persons, including some of those who were the selected
candidates. No doubt, it was a mammoth task and it goes to the
credit of the Committee that it could successfully achieve the
same. After detailed and thorough analysis of all cases
individually, the Committee was able to separate grain from the
chaff, notwithstanding some handicaps which came its way and
are specifically pointed out in the Report.
17)The following observations, after noticing and examining each
case individually and separately, need a reproduction as it depicts
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the state of mental and physical exercise carried out by the
Committee:
“8. Having narrated and summarized the factual sequence emerging from the investigation carried out by the officers of the Vigilance Department, the next step is to record conclusions. Before attempting to record our conclusions, we have considered it appropriate to deal with. (sic) The veracity of the statements of Shri Jagman Singh son of Shri Autar Singh Sekhon, and Shri Randhir Singh Gill son of Shri Kirpal Singh as their statements are likely to have a strong bearing on the eventual outcome of the task entrusted to us. Accordingly, we have examined the veracity of their statements in sub-paragraph (A), hereunder. In this paragraph, it is also necessary to examine the handicaps, which confronted the Investigating Agency during the course of its deliberation. The Committee on several occasions felt that on some aspects, further material should have been collected during the course of investigation. These handicaps have been summarized in sub-paragraph (B) hereunder. In rendering our conclusions, based on the investigation process carried on by the Vigilance Department of the State Government we have in sub-paragraph (C), hereunder, carried out the task of identifying the tainted candidates i.e. the candidates who, according to the Investigating Agency, are shown to have managed and manipulated their recommendations at the hands of the Punjab Public Service Commission, for reasons other than, or in addition to their own merit. In sub-paragraph (D), we have recorded our conclusions in terms of the parameters expressed in Inderpreet Singh Kahlon’s case (supra) i.e.: whether or not it is possible to separately identify the tainted candidates from the untainted candidates, and if not, whether there is sufficient material gathered by the Investigating Agency to conclude, that the entire process of selection was bad, as such, deserved to be set aside in terms of the parameters laid down in Inderpreet Singh Kahlon’s case (supra).”
18)Further discussion ensued on the aforesaid parameters and in
para 8(C) appears the list of 40 persons who, as per the
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investigation carried out by the Vigilance Department and the
compilation made by the Committee, ensured their selection by
way of manipulation. Out of these who have approached this
Court, their cases have already been dealt with in the first
category resulting in the dismissal of their appeals. The
Committee, thus, found that others, namely, the appellants herein,
were not tainted. It thereafter proceeded further to deal with
another aspect, namely, whether the entire selection process
could be said to be vitiated.
19)The Committee has recorded its reasons for the aforesaid
answer/conclusion and concluded at the end that the processes of
selection were clearly rife and abounding with manipulations,
carried out by a well-planned scheme of deception, forgery and
fraud; executed for showing favour or for consideration. As such,
the Committee opined that the entire processes of selection
deserved to be set aside in their entirety.
IMPUGNED JUDGMENT
20)After taking note of the seminal facts relating to the raids on Mr.
Sidhu, the judgment discusses the importance of PSCs, their role
and their duties, responsibilities as well as expectation of a
common man who is, as per the Preamble to the Constitution of
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India, entitled to equality of status and opportunities. Thereafter, it
poses three questions which needed consideration by the Court as
under:
“1) Whether 23 selected candidates who are facing criminal trial can be described to be tainted:?
2) Whether the selection of other candidates who are not facing criminal trial can be described to be vitiated, in view of the detailed investigation carried out by Punjab Vigilance Bureau?
3) Whether the State Government was fair in giving chance of second examination in 2003 to all the candidates?”
Insofar as the first question is
concerned, we have already dealt with and discussed the same
while dealing with the first category of cases. It is the second
question which concerns this Court at this juncture.
21)After taking note of and discussing various judgments where
the Court upheld the action of the Government in cancelling the
selection process when found to be vitiated on account of not
following the procedure of selection, smacks of mala fides and
malpractices, the Full Bench held that here also the entire process
suffered from manipulations and was to be treated as vitiated.
OUR CONCLUSION AND REASONS IN SUPPORT
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22)From the Report of the Committee dated February 08, 2007,
constituted on the directions of this Court in the case of
Inderpreet Singh Kahlon (supra), which has been accepted by
the High Court, it is apparent that the Committee has not found
anything against these 21 persons, in respect of whom we are
deliberating on the issue involved. At the same time, on going
through the process, the Committee was of the view that the
selection process was vitiated and, therefore, the result warranted
to be cancelled in its entirety, including that of these non-tainted
persons as well.
23)The question that falls for consideration is as to whether the
entire process could be labelled as vitiated because of purported
manipulations, forgery and fraud? Or, to put it otherwise, once the
non-tainted persons are segregated from tainted ones, would it
still be justified to quash the entire selection, even when non-
tainted made into the service because of their merit?
24)It was argued by Mr. Raju Ramachandran and Mr. Gurminder
Singh, learned senior counsel appearing for the appellants, that
the mandate of Inderpreet Singh Kahlon (supra) was limited to
one aspect only, namely, to segregate the cases of tainted
candidates from non-tainted ones, if it was possible. It was their
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submission that after this task was successfully accomplished by
the Committee, there was no occasion to go into the second
aspect, which was not part of any direction of this Court in
Inderpreet Singh Kahlon (supra). It was further argued that the
findings on two aspects are self-contradictory. Once it was
accepted that some of the candidates were innocent, who entered
the service by virtue of their merit and not because of any
extraneous considerations and these candidates should be
segregated as well, such a finding to the effect on the second
aspect that the entire selection process was vitiated could not be
arrived at.
25)We find force in the aforesaid argument advanced by the
learned senior counsel appearing for the appellant in these set of
appeals.The two conclusions of the High Court appear to be
antithetical. Once it is found that segregating tainted from non-
tainted is possible and is achieved also, other conclusion is
incompatible with the first one.
26)We have already narrated the background in which judgment in
Inderpreet Singh Kahlon (supra) was rendered by this Court.
Those were the appeals filed against the Full Bench judgment in
Amarbir Singh (supra) where the Court had held that the action
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of the Government in cancelling the entire selection process was
justified. This very conclusion of the Full Bench was challenged
by the appellants in Inderpreet Singh Kahlon (supra) with
specific plea that it was not a case for cancelling the entire
selection process and, in the first instance, the Court should have
attempted to find out as to whether cases of the candidates who
were tainted could be segregated from those who were
unblemished. The court was convinced with the submission. While
setting aside the judgment and remanding the case back, the
Court went to the extent of holding that by clubbing together
tainted as well as non-tainted persons, two unequal classes were
clubbed together and it amounted to violation of Articles 14 and 16
of the Constitution of India. It was also held that no attempt was
made in this direction, namely, whether there was a possibility of
segregating the two classes of persons. The Court found that as
the relevant records were still available a fair investigation into the
whole affair was possible. We would like to reproduce hereunder
some portions of the judgment of S.B. Sinha, J. in Inderpreet
Singh Kahlon (supra) touching upon this aspect:
“43. Apart from inferences drawn on certain facts and in particular the circumstances enumerated by the High Court which have been repeated by the learned counsel for the State before us, it is difficult to accept that it was demonstrated by the State that it was absolutely impossible for it to separate the innocent people from the tainted ones.
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xx xx xx
45. If fraud in the selection process was established, the State should not have offered to hold a reselection. Seniority of those who were reselected ordinarily could not have been restored in their favour. Such an offer was evidently made as the State was not sure about the involvement of a large number of employees.
46. A distinction moreover exists between a proven case of mass cheating for a board examination and an unproven imputed charge of corruption where the appointment of a civil servant is involved.
xx xx xx 50. In those cases also tainted cases were separated from the non-tainted cases. Only, thus, in the event it is found to be impossible or highly improbable, could en masse orders of termination have been issued.
51. Both the State Government as also the High Court in that view of the matter should have made all endeavours to segregate the tainted from the non- tainted candidates.
xx xx xx 59. In a case of this nature, thus, the question which requires serious consideration is as to whether due to the misdeed of some candidates, honest and meritorious candidates should also suffer.”
27)After noticing the aforesaid features, the directions which are
given for setting up of the Committee to go into the issue are
contained in para 94, which reads as under:
“94. The impugned judgment as also the orders of the State Government and the High Court are, thus, liable to be set aside and directions are issued. Although the impugned judgments cannot be sustained, we are of the opinion that the interest of justice would be subserved if the matters are remitted to the High Court for consideration of the mattes afresh. However, with a view to segregate the tainted from the non-tainted, and
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that in the interest of justice the High Court should be requested to constitute two independent Scrutiny Committees – one relating to the executive officers and the other relating to the judicial officers.”
28)It becomes crystal clear that the concern of the Court was that
for the misdeeds of some candidates, honest and meritorious
candidates should not suffer. Therefore, endeavour should be
made to segregate the tainted candidates from those who were
without any stigma and had been selected because of their sheer
merit and not on account of any illegal considerations. We would
also like to reproduce some of the parts of the concurring
judgment authored by Justice Dalveer Bhandari (as His Lordship
then was) with the aforesaid message, eloquently and impeccably:
“118. Undoubtedly, in the selection process, there have been manipulations and irregularities at the behest of R.S. Sidhu, the then Chairman, Punjab Public Service Commission. On careful scrutiny of the facts and circumstances of the case, in my considered opinion, the High Court ought to have made a serious endeavour to segregate the tainted from the non-tainted candidates. Though the task was certainly difficult, but by no stretch of imagination, it was not an impossible task.
xx xx xx
124. The High Court has not considered the case in the proper perspective. The consequences of en masse cancellation would carry a big stigma particularly on cancellation of the selections which took place because of serious charges of corruption. The question arises whether for the misdeeds of some candidates, honest and good candidates should also suffer on en masse cancellation leading to termination of their services? Should those honest candidates be compelled to suffer
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without there being any fault on their part just because the respondents find it difficult to segregate the cases of tainted candidates from the other candidates? The task may be difficult for the respondents, but in my considered view, in the interest of all concerned and particularly in the interest of honest candidates, the State must undertake this task. The unscrupulous candidates should not be allowed to damage the entire system in such a manner where innocent people also suffer great ignominy and stigma.
125. This Court had an occasion to examine a similar controversy in the case of Onkar Lal Bajaj's case (supra). In that case, there were serious allegations of political patronage in allotment of retail outlets of petroleum products, (LPG distributorships and SKO- LDO dealerships). This Court laid down that how could a large number of candidates against whom there was not even insinuation be clubbed with handful of those who were said to have been allotted dealerships/distributorships on account of political connection and patronage? This Court clearly stated that the two were clearly unequals. Equal treatment to unequals is nothing but inequality. This is the most important principle which has been laid down in this case by this Court. The Court further observed that to put both the categories, tainted and the rest, on par is wholly unjustified, arbitrary and unconstitutional, being violative of Article 14 of the Constitution. In somewhat similar circumstances, in this case, the Government, instead of discharging its obligation, unjustly resorted to the cancellation of all the allotments en masse by treating unequals as equals without even prima facie examining their cases. Those officers whose services were affected because of en masse cancellation have not been given an opportunity to represent before the concerned authorities. In the case of Onkar Lal Bajaj there were 413 cases and the task was indeed difficult to segregate the cases of political connection and patronage with other cases. But, even then, this Court while, setting aside the order of the Government cancelling the allotment, appointed a Committee of two retired Judges, one of this Court and another from the Delhi High Court, and they were requested to examine all 413 cases and decide the matter after getting the report from that Committee appointed by the Court.”
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29)In view of the above, the issue of entire selection process
having been vitiated would have arisen only if the findings of the
Committee were that it was not possible to distinguish the cases
of tainted from the non-tainted ones and there was a possibility
that all of them would have got the benefit of wrong doings of Mr.
Sidhu and his accomplices. Fortunately for these appellants, it is
not so as they have been found innocent. The appellants get
ensconced, earning a safe place, once they are removed from the
category of nefarious persons. Though the tainted candidates
have rightly received their comeuppance, but the innocent persons
cannot be punished with them. Thus, it is difficult to accept the
fallibilistic conclusion of the High Court.
30)We have also gone through the reasons given by the High
Court in the impugned judgment, in support of the conclusion that
the entire process is to be treated as vitiated. We find that reasons
are the same which were placed earlier before the High Court by
the Government in Amarbir Singh's case (supra) and they were
very much before this Court as well when the judgment in
Inderpreet Singh Kahlon (supra) was rendered. Without alluding
to them in detail, we may say in nutshell that the reasons given
pertain to the conduct and role of Mr. Sidhu and his accomplices
who had taken money/bribes from some of the candidates or had
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given undue favour to some other candidates because of other
influences. The material discussed is the allegations in various
FIRs and statements of Mr. Jagman Singh, a confident and tout of
Mr. Sidhu (who had become approver in the criminal case), and
others recorded under Section 161 of the Code of Criminal
Procedure, 1973 and the cases in the criminal trial. However,
even after noticing these very reasons, this Court had held that
those who are innocent cannot be punished because of the
misdeeds of Mr. Sidhu in showing favour to other tainted
candidates.
31)There is yet another reason to hold that these persons who
have come up clean, meaning thereby, who have entered the
service by passing the examination on their own merits, should be
allowed to continue in the Government service. We have already
mentioned in the earlier part of the judgment, while discussing the
case of Inderpreet Singh Kahlon (supra), that the Court had not
approved the recommendation of the High Court, on the basis of
which the Government had acted, in respect of the judicial officers
whose services were also terminated. It is not necessary to state
in detail the reasons given by the Court while condemning the
action of terminating the services of the judicial officers, which was
taken in undue haste. The Court had also remarked that all these
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judicial officers were subjected to viva voce/interview test as well,
which was conducted as per Rule 17(a)(iii) of the Punjab Civil
Services (Punishment and Appeal) Rules, 1970, and no breach of
the aid Rule had been pointed out. The Committee which
interviewed these judicial officers included a Judge of the High
Court as well. The Court categorically observed that there may be
some cases where marks had been given for extraneous
considerations, but only because there was such a possibility, the
same by itself, without analysing more, may not be a ground for
arriving at a conclusion that the entire selection process was
vitiated. The direction was, accordingly, given to consider the
entire matter afresh.
32)After remand the Writ petitions of these judicial officers were
decided by the High Court in the case titled as Sirandip Singh
Panag v. State of Punjab, 2008 (4) RSJ 288. The High Court
had allowed those petitions. The said judgment of the High Court
was challenged before this Court in the matter of High Court of
Punjab and Haryana at Chandigarh v. State of Punjab & Ors.,
(2010) 11 SCC 684. This Court, by means of the aforesaid
judgment, upheld the decision of the High Court. The Court
specifically noted that after the directions in Inderpreet Singh
Kahlon (supra), a Committee of three Judges was constituted
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which undertook this exercise and submitted its report. It was a
fractured report where two learned Judges of the Committee were
of the view that entire selection process was vitiated and one
Judge had appended his dissent thereto on the ground that only
those who were found to be tainted and were segregated by the
Committee should be dismissed from service and not the non-
tainted officers. No doubt, while upholding the directions of the
High Court, this Court made it clear that it was not to be construed
as giving seal of approval to the judgment of the High Court. At
the same time, the Court also stated, in so many words, that in
order to work out the equities and to do complete justice, that it
was proper to allow those judicial officers to continue in service
who were found to be untainted. It would be apposite to quote the
following portion of the said judgment in this behalf:
“26. It is not in dispute any more that the candidates were given fresh opportunity to appear for selection for the aforesaid post in the exams exclusively held for them in the year 2004. Out of 57 such candidates, 20 candidates were reslected and they were given benefit of original appointment. As many of these candidates are the respondents and have worked as judicial officers for some period and it has also not been proved or established completely against them that they had indulged in malpractice in examinations, we are of the view that they should also be given reappointment and posting orders to the existing vacancies in the State of Punjab and if no vacancy exists, Mr. Sharan has assured the court that the State will create supernumerary posts for them but they would not be entitled to get all the benefits as have been granted to them vide the impugned judgment.
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27. However, it should not be construed that our judgment is giving seal of approval to the judgment of the Full Bench of the Punjab and Haryana High Court but with an intention to work out the equities and to do complete justice between the parties and in view of the earlier judgment of his Court in Kahlon case that tainted candidates be separated from untainted, meaning thereby that this Court did not accept the submission that it was not practically possible to do so; and further this Court had taken note of reselection held in 2004 in para 92 of the judgment, but held that the effect thereof would be subject to this case, this is the only via media, through which the respondents could also be granted relief as it could not be established that even otherwise, they would have been declared as unsuccessful candidates. Precisely, that is the reason we have moulded the reliefs granted to the respondents by the High Court as our order is not likely to affect seniority of any of the judicial officers, who had already been working prior to the respondents. We are conscious of the fact that by this procedure, there is no likelihood of any offshoots of the said order and hopefully the whole controversy triggered in the year 1998, would stand settled for all times to come.”
33)There is yet another crucial development which needs to be
mentioned here. In the first instance, it is the State which had
taken a decision to cancel the entire selection process. However,
after the remand order passed in Inderpreet Singh Kahlon’s
case (supra), in the exercise done by the Committee screening out
the tainted from non-tainted candidates, the State came forward
and showed its willingness to take back these candidates who
were non-tainted and were selected on the basis of their merit. A
specific affidavit to this effect was filed in the High Court. To the
same effect the affidavit has been filed before us also. We are of
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the opinion that once those untainted officers, who were appointed
under the same environment, have been allowed to continue,
there is no reason to deprive this benefit of such recourse to the
PCS (Executive Branch) and Allied Services. We may note that
the High Court has recorded in the impugned judgment that 66%
cases were found to be of the persons given appointment who
were tainted, which influenced the entire selection process.
However, during the course of arguments, it was placed before us
that the aforesaid percentage is worked out by taking the cases of
direct recruits and nominated candidates together. If the figures
are separately taken, out of 93 direct recruits, 76 have joined and
only 10 are found to be tainted. In fact, the percentage of such
tainted candidates in nominated category was much higher, i.e.
80%. It was, thus, argued that the cases of direct recruits cannot
be taken along with those in nominated category, who influenced
the decision in their matter as well. This is also a supportive and
important fact which goes in favour of these appellants viz. the
non-tainted direct recruits.
34)The aforesaid discursive exercise prompt us to set aside the
judgment of the High Court in respect of these persons with the
direction that the appellants be allowed to join the duties forthwith.
It is, however, made clear that the intervening period during which
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they remained out of service shall not count for seniority or any
other benefit. However, these persons shall be given the benefit
of service rendered by them earlier viz. from September 1999 till
May 22, 2002, when they actually worked, for the purpose of
seniority and future promotion, etc. These appeals are partly
allowed to the aforesaid extent.
There shall, however, be no order as to costs.
.............................................J. (DR. B.S. CHAUHAN)
.............................................J. (A.K. SIKRI)
NEW DELHI; MAY 23, 2014.
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