C.G.M.,Cal.Tel.Dist.,B.S.N.L.& Ors vs Surendra Nath Pandey & Ors

1st September, 2009, in F.M.A. No. 807 of 2009. The

Division Bench of the High Court in the impugned

order dismissed the appeal of the appellants thereby

affirming the order passed by the Learned Single Judge

in W.P. No. 18313 of 2004, directing the appellants

1

herein, to inform the respondents about the marks

obtained by them in the examination in question and

grant promotion to the respondents pursuant to the

result of the departmental examination.

3. The respondents are employees of the appellants, i.e.,

Department of Telecommunication within the

Department of Post & Telegraph, Government of India,

now renamed Bharat Sanchar Nigam Limited. They

appeared in an examination for being promoted to

Junior Accounts Officers. Junior Accounts Officers

Service Postal Wing (Group C) Recruitment Rules,

1977 regulate recruitment and conditions of service for

this post. The rules provided for a two stage

departmental examination for appointment to this

post.

4. The appellants conducted the aforementioned

departmental examination on 20th February, 1999,

21st February, 1999 & 22nd February, 1999 for

appointing Junior Accounts Officers in the Department

2

of Telecommunication under the Ministry of

Communication. The respondents appeared in the said

examination; however, when the result consisting of

lists featuring names of both successful and

unsuccessful candidates was displayed, their names

did not appear in either of the lists.

5. The respondents in order to know their result

deposited Rs. 25/- each for being apprised of the

marks secured by them along with a representation

before the appropriate authority. The respondent's

request was in accordance with Rule 13 of the (Rules

Relating to Departmental Examination, Part I General)

of Post & Telegraph Manual, Volume IV. Rule 13

states:

"Communication of Marks: (a) After the result

of an examination has been announced, the

marks obtained in such paper by a candidate

maybe communicated to him, and to him alone,

on application, and on payment of a fee of

Re.1/- per examination per candidate.....

(d) Application for supply of marks should be

given priority at all stages."

Thereafter, the Assistant General Manager, Recruitment &

Establishment, Calcutta Telephones wrote a letter to the

3

Assistant Director General (Departmental Examination),

New Delhi on 9th February, 2000 requesting disclosure of

marks obtained by the respondents in the said examination.

6. The respondents' request for being intimated of the

marks secured was not acceded to, nor did the

authorities reply to the representation.

7. Thereafter, the respondents filed O.A. No. 629 of 2000

before the Central Administrative Tribunal seeking

disclosure of marks and disposal of the representation

by the respondents. Vide its order dated 26th July,

2000 the tribunal directed the appellants to publish

the result of the said examination, dispose off the

representation and allow the respondents to appear in

the examination next year.

8. The Chief General Manager, Calcutta Telephones

complying with the order of the tribunal disposed of

the respondent's representation by means of a

speaking order. It was stated therein, that the

4

respondent's candidature was cancelled on account of

some irregular practices having been noticed on their

part. It was further stated that on account of

cancellation of candidature, it was not permissible to

communicate the marks obtained by the respondents

in the said examination contemplating disciplinary

proceedings for adopting unfair means.

9. Challenging the abovementioned order passed by the

Chief General Manager, Calcutta Telephones, the

respondents filed W.P. No. 18313 of 2004 in the

Calcutta High Court. The writ petition was allowed,

quashing the order of cancellation of candidature of

the respondents. The learned Single Judge held that

the appellants had failed to establish their claim

wherein the respondents were accused of mass

copying and were, therefore, obliged to intimate to the

respondents, the marks secured by them in the

examination. The learned counsel for the appellants

had alleged before the learned Single Judge that the

syllabus for the examination prescribed the books

5

allowed to be used by the candidates for answering

questions however; the respondents had used guide

books for answering questions in the examination. Use

of guide books was not permissible. The Learned

Single Judge observed that, the allegation was

unfounded since the supervising officers in the

examination hall did not prevent the respondents from

using the guide books. Moreover, no disciplinary

action was initiated against the respondents. On the

other hand, the respondents were awarded ad hoc

promotion to the post of Junior Accounts Officer; an

unmarred vigilance report is a pre-requisite for the

same. The reports submitted by the vigilance wing

stated that the examination was conducted in a fair

and peaceful manner. The appellants were, therefore,

directed to inform the respondents of the marks

obtained by them and to consider them for promotion

if successful in the examination. They were also held

entitled to the financial benefits that would have

accrued to them since the date of adhoc promotion.

6 10. The appellants aggrieved by the order and judgment of

the learned Single Judge, filed appeal before the

Division Bench of the Calcutta High Court vide FMA

No. 807 of 2009. The Division Bench dismissed the

appeal by affirming the decision of the learned Single

Judge. The Division Bench has observed that the

appellants' contention of there being no scope for

disciplinary action against the erring employees could

not be accepted, especially since the respondents had

been granted ad-hoc promotion. The Division Bench

stated that it is well settled that promotion wipes out

all past alleged misconduct. It was also observed that

the respondent's decision not to appear in the

examination in the subsequent year could not act as

an estoppel for challenging the action of the appellants.

Hence, the present appeal.

11. We have heard the learned counsel for the parties.

12. Ms. Pinki Anand, learned senior counsel appearing for

the appellants submitted that both the learned Single

7

Judge as well as the Division Bench have erred in

coming to the conclusion that the decision for

cancellation of the examination was in breach of rules

of natural justice. She submits that this is a case of

mass-copying; therefore, the question of giving

opportunity of hearing to each individual candidate did

not arise. Rule 18 is applicable in the case of

individual candidate who is found to have used unfair

means. In this case, mass-copying was discovered only

because the answers given to some of the questions

were identical. Subsequently, it was discovered that

answers to questions in Paper X given by 66

candidates was so much similar as to indicate

suspected mass-copying. Consequently, a three

member committee was constituted to examine the

issues. Upon examination of the relevant material, the

committee concluded that it was a case of mass-

copying. On the basis of their report, the candidature

of 66 candidates including the respondents herein was

cancelled. Learned senior counsel further submitted

that the candidates had copied the answers from guide

8

book which was not permissible. They were only

entitled to make the use of the books which was on the

list of the prescribed books. It is further submitted that

undoubtedly the candidates had been given ad-hoc

promotion. However, for regular promotion, it was

necessary for the candidates to pass the departmental

examination. She further submits that CAT in its order

dated 26th July, 2000 had directed the appellants to

allow the respondents and all other candidates to

appear in the examination, if they were otherwise

eligible or if they wish to appear. Taking advantage of

this direction, 42 candidates, who were similarly

situated as the respondents, appeared in the

subsequent examination. They were duly given regular

promotion. However, the respondents did not avail of

the chance. Therefore, they can not claim promotion

on regular basis. In support of her submissions,

learned senior counsel relied on the judgments in the

case of The Board of High School & Intermediate

Education U.P. Vs. Bagleshwar Prasad1, Union

1 (1962 3 SCR 767)

9

Public Service Commission Vs. Ja gannath Mishra 2 ,

Madhyamic Shiksha Mandal, M.P. Vs. Abilash

Shiks ha Prasar Samiti 3 , Chairman J & K State

Board Education Vs. Feyaz Ahmed Malik & Ors. 4 ,

and Chairman, All India Railway Recruitment

Board Vs. K. Shyam Kumar & Ors. 5

13. Mr. Bidyut Kumar Mukherjee, learned senior counsel

appearing for the respondents submits that the SLP

does not involve any substantial question of law. The

learned Single Judge as well as the Division Bench has

only redressed the injustice that had been done to the

respondents. Learned senior counsel submits that this

plea of mass-copying is an afterthought; initially when

the respondents had approached the CAT, the

appellants did not take any plea with regard to the

cancellation of the whole examination. The

respondents only came to know about it when they

received the speaking order. Learned senior counsel

2 2009 (9) SCC 237

3 (1998 (9) SCC 236,

4 (2000 (3) SCC 59)

5 (2010 (6) SCC 614).

10 further submitted that during the proceeding before

the learned Single Judge, the appellants did not

produce the original record, therefore, the question

would arise as to `how' and `who' cancelled the result

of the entire examination. It is submitted by Mr.

Mukherjee that the report of the three member

departmental committee was available with the

department on 3rd January, 2000. The same was not

brought to the notice of the CAT when it delivered its

order on 26th July, 2000. It is further submitted that

there is no provision under the rules for constituting a

three member committee. In any event, the

proceedings before the committee are shrouded in

mystery. None of the candidates was asked to appear

before the committee, even the examiners and/or the

supervising staff were not called for questioning. By

his letter dated 14th October, 1999, DGM (Admn.)

Calcutta Telephones forwarded the report of DE

(Vigilance)/CTD to ADG (DE), New Delhi. In this report,

it was stated that the examination was conducted in a

fair and peaceful manner on all the three dates as per

11

the report of the Officers of the Vigilance Wing.

Making a reference to the rules relating to the

departmental examination, Part III of the rules relates

to instructions for the supervising officers. Rule 4C

requires that the supervising officer should make

certain announcements before the commencement of

the examination. These are that: candidates should

make sure that they have no unauthorized books or

paper with them; they should carefully read and follow

the instructions on the cover of the answer book as

also on the question paper and they will be expelled

from the examination hall for resorting to unfair means

and subjected to departmental proceedings. Rule 4E

provides that supervision must be effective and active.

It is not sufficient for them to be merely present in the

examination hall. Referring to Rule 26, learned senior

counsel submits that on conclusion of the examination

after the last paper, the supervising officer is required

to give a very comprehensive certificate in the form

prescribed in the aforesaid rules. According to the

learned senior counsel, once the certificate was issued

12

by the supervising staff, a presumption would arise

that the candidates had not used any books of

reference except those authorised for answering

papers. Learned senior counsel further submitted that

action against the departmental candidates is to be

taken under Rule 18 contained in Part I of the Rules

relating to departmental examination. Under this rule,

there is no provision for cancellation of the report.

Under Rule 14 of Part IV, disciplinary proceedings

have to be initiated against the candidate for using

unfair means. None of the candidates were proceeded

against, departmentally. It is submitted that the result

could be cancelled only after the candidate is found

guilty. This can only be on the basis of a finding of

unfair means given by a properly constituted

committee. Without completing the proceeding under

the aforesaid rules, 42 candidates were permitted to

take the examination on the basis of the order passed

by the CAT on 26th July, 2000. Those candidates had

been given regular promotion on the basis of the

subsequent examination. The respondents have been

13

denied the promotions as they have not appeared in

the examination. According to the learned senior

counsel, the action of the respondents in not

permitting the respondents promotion on a regular

basis is violative of Articles 14 and 16 of the

Constitution. It is emphasised by Mr.Mukherjee that

all the respondents have been given ad-hoc promotion

and are continuing on the promoted post. Since the

ad-hoc promotion can be given only with the clearance

from the vigilance department, according to the

learned senior counsel, the respondents are entitled to

be regularized on the post on which they have been

promoted on ad-hoc basis on numerous occasions.

Finally, it is submitted by Mr.Mukherjee that, in fact,

there is no conclusive proof that the respondents have

indulged in mass copying from the guide book which

had not even been published at the time of the

examination. It is pointed out that the guide book was

published in December, 1999 whereas the examination

had been held on 18th, 19th & 20th of February, 1999.

According to the learned senior counsel the judgment

14

of the Division Bench correctly recorded the conclusion

that since the respondents have been given ad-hoc

promotion in the next higher rank, any past alleged

misconduct is wiped out.

14. In reply, Ms. Pinki Anand, learned senior counsel

reiterated that rule 18 has no application in the facts

and circumstances of this case. There is no provision

under the rules specifically dealing with cases of mass-

copying. The rule only deals with the cases of

individual use of unfair means. Learned senior counsel

further submitted that the respondents have not

pleaded either in the OA or in reply to the writ petition

in the High Court that the cancellation of the

examination was in breach of rules of natural justice.

Even the submissions with regard to breach of rules of

natural justice are made for the first time in this

Court.

15. We have considered the submissions made by the

learned counsel for the parties at length. The

15

undisputed facts are that all the respondents had

participated in the departmental examination. The

respondents were permitted the use of books

specifically prescribed for the purpose of answering the

question paper. The books that are prescribed do not

include the guide book which was used by all the

candidates. Upon completion of the examination, the

supervisor undoubtedly gave a report that the

examination has been held peacefully and in a fair

manner.

16. On this basis, Mr. Mukherjee has submitted that this

would lead to a presumption that no unfair means had

been used. We are unable to accept such a

submission. The report at best indicates that the

examination was not disrupted by any untoward

incident. It has been rightly pointed out by Ms. Pinki

Anand that the use of unfair means was not detected

in the examination centre. It was detected by the

examiner of the answer books of Paper X. It was

noticed that the answers written by 66 candidates at

16

the centre at which the respondents along with other

candidates had taken the examination were so similar

as to indicate that this case is a suspected mass

copying. The examiner, therefore, did not evaluate the

answer books of the candidates allegedly involved in

mass-copying. With a view to look into the

observations of the examiner, it was decided by the

Adviser (Finance), DOT that the answer books of the

candidates suspected to have indulged in mass-

copying be gone through by three high ranking officers

of the department. Therefore a three member

committee was constituted to submit its report on the

following points :

(a) Whether the observation of the examiner is

correct that the answers written by the

candidates tally word for word with those given in

the key and therefore full marks would have to be

awarded to all these candidates suspected to

have indulged in mass-copying;

b) Whether the observation of the examiner

regarding suspected mass-copying is reasonably

17

substantiated on the basis of the review of the

answer-books; and

c) In case the inference of mass-copying is not

reasonably established, the committee should

also suggest guidelines, if any, considered

necessary for evaluating these answer-books.

17. The aforesaid committee examined all the 66 answer

books through evaluated answer books which were

supplied for comparison and review. The Committee

observed as follows:

1. The observation of the examiner is correct.

This is an established case of mass copying.

2. The mass copying was made easy because the

paper was set from one guide book only and

all answers were available in the same book.

3. Co-incidentally guide book is written by the

officer stationed at Calcutta so it is presumed

that this guide book might be readily available

with candidates.

18 4. Though guide is not authorised as a reference

book it seems that the centre supervisor has

not taken proper care and because of his

negligence the guide book might be available

in the examination hall.

18. We are of the considered opinion that the procedure

adopted by the appellants can not be said to be unfair

or arbitrary. It was a reasonable and fair procedure

adopted in the peculiar circumstances of the case. It

can not be said to be in breach of rules of Natural

Justice. It must be remembered that rules of Natural

Justice are not embodied rules. They can not be put

in a strait-jacket. The purpose of rules of Natural

Justice is to ensure that the order causing civil

consequences is not passed arbitrarily. It is not that

in every case there must be an opportunity of oral

hearing. We may notice here the observations made by

this Court in the case of Bihar School Education

Board Vs. Su bhas Chandra Sinha 6 , wherein a

similar plea with regard to breach of rules of Natural

6 (1970 (1) SCC 648)

19

Justice was examined. In this case, the appellant

board had cancelled the examination upon detection of

mass copying without affording the affected candidates

the right to be heard. This Court rejected the plea of

breach of rules of Natural Justice, as follows:-

"This is not a case of any particular individual who is

being charged with adoption of unfair means but of

the conduct of all the examinees or at least a vast

majority of them at a particular centre. If it is not a

question of charging any one individually with unfair

means but to condemn the examination as ineffective

for the purpose it was held. Must the Board give an

opportunity to all the candidates to represent their

cases? We think not. It was not necessary for the

Board to give an opportunity to the candidates if the

examinations as a whole were being cancelled. The

Board had not charged any one with unfair means so

that he could claim to defend himself. The examination

was vitiated by adoption of unfair means on a mass

scale. In these circumstances it would be wrong to

insist that the Board must hold a detailed inquiry into

the matter and examine each individual case to satisfy

itself which of the candidates had not adopted unfair

means. The examination as a whole had to go."

(emphasis supplied)

19. In the present case, there is not even a denial that the

answers have been taken from the guidebook. Mass

copying is accepted on the plea that it was permissible

to take books into the examination. This plea was

rejected by the Expert Committee, as the candidates

were only allowed to use the books prescribed in the

20

syllabus. The guidebook used by the candidates was

not permitted to be taken into the examination centre.

Given the fact situation in the present case, the

appellant constituted a three members Committee of

high ranking officers to enquire into the matter. Since

there is no provision under the rules with regard to

mass copying, the appellants were fully justified in

constituting a Committee to enquire into the matter.

20. We may also make a reference here to the observations

made by this Court in the case of Union of India &

Ors. Vs. An and Kumar Pandey & Ors. 7 In this case,

the Railway Recruitment Board, Patna invited

applications for selection and recruitment of various

posts of Non-technical Popular categories in the

Eastern Railway. The selection was to be made on the

basis of a written examination followed by a viva-voce

test. A large number of candidates appeared in the

written test from various centres in the city of Katihar.

The respondents in the appeal had appeared in the

written examination and duly qualified. They had also

7 1994(5) SCC 663

21

qualified in the viva-voce test and their names were

included in the panel of selected candidates, which

was published. On a complaint of mass copying at

Centre No. 115, the Railway Authorities conducted an

enquiry and found the complaint to be correct. The

Railway Authorities decided to subject the 35

candidates, who had qualified the written test from

Centre No. 115, to a fresh examination. The CAT set

aside this decision of the Railway Authorities as being

violative of rules of Natural Justice. It was held that a

panel of selected candidates having been prepared and

published, the same could not be cancelled without

assigning any reason and without affording

opportunity to the empanelled candidates. On appeal

by the Union of India, this Court set aside the decision

of the Tribunal. It was held that the Tribunal was

wholly unjustified in interfering the order of the

appellants, calling on the respondents to sit in the

written examination again. In Paragraph 9 of the

aforesaid judgment, it is observed as follows:-

"This Court has repeatedly held that the rules of

natural justice cannot be put in a strait-jacket.

22

Applicability of these rules depends upon the facts

and circumstances relating to each particular given

situation. Out of the total candidates who appeared in

the written test at the Centre concerned only 35

candidates qualified the test. In that situation the

action of the railway authorities in directing the 35

candidates of Centre No. 115 to appear in a fresh

written examination virtually amounts to cancelling

the result of the said centre. Although it would have

been fair to call upon all the candidates who appeared

from Centre No. 115 to take the written examination

again but in the facts and circumstances of this case

no fault can be found with the action of the railway

authorities in calling upon only 35 (empanelled

candidates) to take the examination afresh. The

purpose of a competitive examination is to select the

most suitable candidates for appointment to public

services. It is entirely different than an examination

held by a college or university to award degrees to the

candidates appearing at the examination. Even if a

candidate is selected he may still be not appointed for

a justifiable reason. In the present case the railway

authorities have rightly refused to make appointments

on the basis of the written examination wherein unfair

means were adopted by the candidates. No candidate

had been debarred or disqualified from taking the

exam. To make sure that the deserving candidates are

selected the respondents have been asked to go

through the process of written examination once again.

We are of the view that there is no violation of the

rules of natural justice in any manner in the facts and

circumstances of this case."

21. As noticed earlier, in the present case, the appellants

had adopted a very reasonable and a fair approach. A

bonafide enquiry into the fact situation was conducted

by a Committee of high ranking officers of the

department. In our opinion, the High Court was

23

wholly unjustified in interfering with the decision

taken by the appellants in the peculiar circumstances

of the case. It is settled beyond cavil that the decisions

taken by the competent authority could be corrected

provided it is established that the decision is so

perverse that no sensible person, who had applied his

mind to the question to be decided could have arrived

at it. The aforesaid principle is based on the ground of

irrationality and is known as Wednesbury Principle.

The Court can interfere with a decision, if it is so

absurd that no reasonable authority could have taken

such a decision. In our opinion, the procedure

adopted by the appellants can not be said to be

suffering from any such irrationality or

unreasonableness, which would have enabled the High

Court to interfere with the decision.

22. It is perhaps keeping in mind the aforesaid principles

that this Court in the case of B. Ramanjini & Ors. Vs.

St ate of A.P . & Ors. 8, indicated that a decision taken

by the competent authority on the basis of relevant

8 2002(5) SCC 533

24

material ought not to be lightly interfered with by the

Court in exercise of its power of judicial review. In

Paragraph 8 of the aforesaid judgment, this Court

observed as follows:

"Further, even if it was not a case of mass copying or

leakage of question papers or such other

circumstance, it is clear that in the conduct of the

examination, a fair procedure has to be adopted. Fair

procedure would mean that the candidates taking

part in the examination must be capable of

competing with each other by fair means. One cannot

have an advantage either by copying or by having a

foreknowledge of the question paper or otherwise. In

such matters wide latitude should be shown to the

Government and the courts should not unduly

interfere with the action taken by the Government

which is in possession of the necessary information

and takes action upon the same. The courts ought

not to take the action lightly and interfere with the

same particularly when there was some material for

the Government to act one way or the other."

(emphasis supplied)

23. In view of these observations, we are of the considered

opinion that the High Court ought not to have

interfered with the decision taken by the appellants

requiring the candidates, who appeared in the

cancelled examination, to reappear in the subsequent

examination, in order to qualify for regular promotion.

25 24. We also do not find any merit in the submissions of

Mr.Mukherjee that all cases of unfair means have to be

examined on the basis of Rule 18 of Part I of the rules.

The aforesaid rule deals with the situation where a

candidate is found or discovered to be using unfair

means in the examination itself. It is only in these

circumstances that the candidate has to be subjected

to disciplinary proceeding which has to be conducted

on the basis of the report submitted under Rule 14(4).

Since this is a case of mass- copying, which was

discovered only at the time of the review of the answer

books, Rule 18 would have no relevance. Rule 14

would not, in any manner, improve the case of the

respondents as it merely enables the disciplinary

authority to impose major penalty on a candidate who

is found to have used unfair means. Merely because no

disciplinary proceedings have been initiated against

the respondents, it would not be a justification to hold

that the cancellation of the result is in any manner,

impermissible.

26 25. We are also of the considered opinion that the Division

Bench was not justified in holding that merely because

the respondents had been given ad-hoc promotion, the

previous alleged misconduct stands wiped out. The

respondents were given equal opportunity to compete

in the examination subsequent to the cancellation of

their examination result. It is a matter of record that

42 candidates who were similarly placed took

advantage of the order passed by the CAT on 26th July,

2000 and appeared in the subsequent examination.

They have been promoted in accordance with the rule

to the next higher post. The respondents, however,

chose not to appear in the examination. They cannot

at this stage be permitted to complain that they have

been treated unfairly.

26. In view of the above, we are of the opinion, that the

judgment of the learned Single Judge and the Division

Bench impugned herein are not sustainable.

Consequently, the appeal is allowed and the judgments

27

of the learned Single Judge as well as the Division

Bench are hereby set aside.

...................................J.

[Altamas Kabir]

...................................J.

[Surinder Singh Nijjar]

...................................J.

[Gyan Sudha Misra]

New Delhi;

November 03, 2011.

28