Recruitment To Public Services Must Command Public Confidence: SC

It is most refreshing, most rejuvenating and most reasonable that the Supreme Court has most recently on March 3, 2021 in a learned, latest, laudable and landmark judgment titled Sachin Kumar & Ors. vs. Delhi Subordinate Service Selection Board (DSSSB) & Ors. in Civil Appeal Nos. 639-640 of 2021 @ SLP (C) Nos. 5785-5786 of 2020 along with others has rightly, robustly and remarkably held that recruitment to public services must command public confidence. This was held so while upholding the cancellation of the Tier-I and Tier-II examinations held in 2009 for recruitment to the post of Head Clerk [(Grade II (DASS)] Delhi Subordinate Services Selection Board. Very rightly so!

To start with, this brilliant, brief, bold, blunt and balanced 66-page judgment authored by Justice Dr Dhananjaya Y Chandrachud for himself and Justice MR Shah sets the ball rolling by first and foremost observing in para 2 that, “This judgment visits a familiar conundrum in service jurisprudence. The constitutional values which undergird Articles 14 and 16 mandate that selection processes conducted by public authorities to make recruitments have to be fair, transparent and accountable. All too often, human fallibility and foibles intrude into the selection processes. Selection involves intense competition and there is no dearth of individuals who try and bend the rules to gain an unfair leap in the race. Irregularities in the process give rise to misgivings over whether the process has denied equal access to all persons. The sanctity of the selection process comes under a cloud. The detection of individual wrongdoing by candidates may result in action being taken to exclude those whose credentials or performance is tainted. But when the entire process is tainted, the authority in charge of conducting it may decide to cancel the selection as a whole. Judicial review is then invoked to challenge the decision to cancel the entire process. The guiding principles have evolved over the past five decades as new challenges emerged and novel attempts to suborn the legitimacy of recruitment processes have come to the fore. The Delhi High Court in the present case upheld the view of the Central Administrative Tribunal (“Tribunal”) that the cancellation of the entire process was invalid but it confined the relief to six candidates who had moved the proceedings before the Tribunal in the first instance. Like other cases of its genre, this batch of appeals calls the court to balance two competing considerations : the need to preserve public confidence in and the sanctity of selection to public posts and the requirement of observing fairness to candidates who invest time and resources in attempting to clear through a selection. Both these considerations have a constitutional foundation going beyond service and administrative law principles. The issue has travelled to the court for resolution and the path ahead requires us to revisit and evolve the law on the subject.”

To put things in perspective, the Bench then elucidates in para 3 stating that, “This batch of twelve appeals arises from a judgment of a Division Bench of the High Court of Delhi dated 13 January 2020. Two petitions under Article 226 of the Constitution were instituted by the Delhi Subordinate Services Selection Board (“DSSSB”) in order to question the legality of the orders of the Tribunal dated 1 February 2017 and 27 February 2017. The Tribunal annulled the decision of the Government of the National Capital Territory of Delhi (“GNCTD”) to cancel the recruitment process conducted for appointments to the post of Head Clerk [(Grade 2) (DASS)] in the GNCTD. As a consequence, the Tribunal directed the DSSSB to conclude the selection process for which the Tier-I and Tier-II examinations had been conducted. The proceedings before the Tribunal in two OAs (OA No. 3941 of 2015 and OA No. 1578 of 2016) were instituted by a total of six applicants, three in each of the OAs. The Tribunal’s decision entails that the benefit of its order setting aside the recruitment process would enure not only to the six applicants who had moved it but to others as well though they had not challenged the cancellation of the recruitment process. The High Court by its judgment held that

(i) The orders of the Tribunal dated 1 February 2017 and 27 February 2017 setting aside the cancellation of the recruitment process were in accord with the legal position;

(ii) The relief would stand confined to the six applicants who had moved the Tribunal; and

(iii) Each of the six applicants, who were Respondents before the High Court would need to take the Tier-II examination afresh within a stipulated period and the appointment process would be taken to its logical conclusion for them.”

Quite remarkably, the Bench after hearing both the parties minces no words to observe in para 33 that, “In deciding this batch of SLPs, we need not re-invent the wheel. Over the last five decades, several decisions of this Court have dealt with the fundamental issue of when the process of an examination can stand vitiated. Essentially, the answer to the issue turns upon whether the irregularities in the process have taken place at a systemic level so as to vitiate the sanctity of the process. There are cases which border upon or cross-over into the domain of fraud as a result of which the credibility and legitimacy of the process is denuded. This constitutes one end of the spectrum where the authority conducting the examination or convening the selection process comes to the conclusion that as a result of supervening event or circumstances, the process has lost its legitimacy, leaving no option but to cancel it in its entirety. Where a decision along those lines is taken, it does not turn upon a fact-finding exercise into individual acts involving the use of mal-practices or unfair means. Where a recourse to unfair means has taken place on a systemic scale, it may be difficult to segregate the tainted from the untainted participants in the process. Large scale irregularities including those which have the effect of denying equal access to similarly circumstanced candidates are suggestive of a malaise which has eroded the credibility of the process. At the other end of the spectrum are cases where some of the participants in the process who appear at the examination or selection test are guilty of irregularities. In such a case, it may well be possible to segregate persons who are guilty of wrong-doing from others who have adhered to the rules and to exclude the former from the process. In such a case, those who are innocent of wrong-doing should not pay a price for those who are actually found to be involved in irregularities. By segregating the wrong-doers, the selection of the untainted candidates can be allowed to pass muster by taking the selection process to its logical conclusion. This is not a mere matter of administrative procedure but as a principle of service jurisprudence it finds embodiment in the constitutional duty by which public bodies have to act fairly and reasonably. A fair and reasonable process of selection to posts subject to the norm of equality of opportunity under Article 16(1) is a constitutional requirement. A fair and reasonable process is a fundamental requirement of Article 14 as well. Where the recruitment to public employment stands vitiated as a consequence of systemic fraud or irregularities, the entire process becomes illegitimate. On the other hand, where it is possible to segregate persons who have indulged in mal-practices and to penalise them for their wrongdoing, it would be unfair to impose the burden of their wrong-doing on those who are free from taint. To treat the innocent and the wrong-doers equally by subjecting the former to the consequence of the cancellation of the entire process would be contrary to Article 14 because unequals would then be treated equally. The requirement that a public body must act in fair and reasonable terms animates the entire process of selection. The decisions of the recruiting body are hence subject to judicial control subject to the settled principle that the recruiting authority must have a measure of discretion to take decisions in accordance with law which are best suited to preserve the sanctity of the process. Now it is in the backdrop of these principles, that it becomes appropriate to advert to the precedents of this Court which hold the field.”

Needless to say, it cannot be lost on us that it is then envisaged in para 48 that, “On 22 August 2015, following the receipt of “serious complaints” in the office of the Chief Minister, GNCTD regarding irregularities in the conduct of the examinations conducted by DSSSB for the post of Grade-II DASS, a Committee consisting of the Director (Vigilance) and District Magistrate (East) was appointed to enquire into the matter and submit its report. The Committee upon a preliminary examination noted the gravamen of the complaints which involved allegations that:

(i) As many as 50 candidates who had high marks in the Tier-I test (e.g. 170 out of 200) secured less than 50 marks in the Tier-II test and some candidates had obtained zero marks;

(ii) The absence of randomization enabled candidates who were closely related to sit in a sequence; and

(iii) A significant proportion of the candidates belonged to a concentrated geographical area.”

More tellingly, the Bench then observes in para 49 that, “The Committee noted that there was a delay of almost five years in conducting the Tier-I examination. As a result, of the 62,056 applicants only 8224 had appeared at the Tier-I examination giving rise to an apprehension that adequate information had not been furnished to candidates. The Committee furnished examples of candidates who had secured high marks in Tier – I examination but extremely low marks in the Tier-II exam. Candidates also appeared to be concentrated from a particular area of Delhi. The Committee found it “astonishing that the whole marks lists is dominated by a particular section of society” based on their surnames. There were instances of candidates who had secured high marks in Tier-I failing to appear at the Tier-II examination. The Committee was critical of the role of DSSSB in failing to devote serious attention to the irregularities which had taken place during the course of the examination.”

While continuing in a similar vein, the Bench then holds in para 50 that, “The Committee had representations before it from candidates as well. The Committee found that members of the same family were found to be sitting in close proximity both in the Tier-I and Tier-II examinations of which details were tabulated in the report. The Committee noted that it had addressed a questionnaire to the officials of DSSSB in regard to the alleged irregularities but they expressed their inability to answer the queries. The Committee found that in the absence of randomization, many cases had emerged where two or more members of a single family sat in consecutive order and were falling under the zone of probable selection. A majority of candidates falling in the zone of selection appeared to belong to the same geographical area. In this backdrop and considering the voluminous nature of the documentary material, the Committee was of the view that either the CBI or the Crime Branch would be able to investigate into the matter. The matter did not rest there. In its report, the first Committee found that there were serious irregularities in the examinations conducted by DSSSB for the post of Grade-II DASS. The report of the Committee dwells on:

(i) The delay of five years in holding the Tier-I examination after the advertisement was released in 2009; and

(ii) The issuance of admit cards only through the electronic mode, which was not prescribed in the advertisement.”

Of course, the Bench then adds in para 51 that, “The Committee was of the view that one of the main reasons for the appearance of a small proportion of candidates as compared to the applications was the inability of candidates to access the internet to download the e-admit cards. This, in the view of the Committee, prima facie vitiated the selection process. DSSSB in its reply had noted that it would earlier remit the admit cards by post but this gave rise to administrative difficulties as a result of postal delays, changes in address and the issuance of duplicate cards in place of those lost or damaged in transit.”

More damningly, the Bench then goes on to observe in para 52 stating that, “On 5 June 2013, the Board had followed the pattern of the UPSC and Railway Board and decided to also issue e-admit cards which was to be given a wide publicity. On this aspect the Committee noted that the advertisement had not mentioned that admit cards shall be issued through the electronic medium only. A period of five years had elapsed since the date of the advertisement. It was not possible for the candidates to keep a vigil on the notifications of a single examination. In this backdrop, the decision of DSSSB, during the course of the process, to allow only e-admit cards was a deviation which resulted in a small number of candidates appearing in the Tier-I examination. This was clearly a pointer to the denial of equal access and opportunity to all candidates in the selection process. The Committee buttressed this finding by observing that there was a wide variation between the marks obtained in the Tier-I and Tier-II examinations. In the absence of randomization, it was found that members of a family and close relatives sat in the same room and details of these candidates were duly tabulated. The Committee dealt with the explanation of DSSSB that the software for randomization was not available prior to 28 June 2015 and that steps have been taken for reshuffling candidates. The Committee did not accept the explanation of the Board, noting that if randomisation had been done in the Tier-I examination, it was then inconceivable as to how family members and close relatives sat in the same room. Moreover, it found it surprising that randomisation had been done in Tier-I and not in Tier-II. Though, according to DSSSB, manual reshuffling had been done for the TierII examination, even then a considerable number of closely related persons sat in proximity at the Tier-II examination. Besides these irregularities, the Committee noted that there was a racket which had led to the impersonation of candidates. This racket involved a person by the name of Anil Kumar Malik who was the Chief Invigilator at a particular centre. It was alleged that he was connected with a coaching centre which was also involved in the leakage of the question papers. The Committee noted the allegation that this person had repeatedly fixed his duties in a choice of his own centres with the help of DSSSB staff and there were instances of impersonation which had emerged. The Committee proceeded to tabulate these instances. Apart from this, the Committee found that the videography was blurred, thumb impressions were unrecognizable, jammers were not working properly and candidates had been allowed to appear irrespective of their educational qualifications. Further, it was noted that allegations of flying squad members passing answers onto candidates could not be ruled out. Now, in this backdrop, the Secretary Vigilance opined that the entire process of recruitment appeared to be vitiated.”

As it turned out, it is then stated in para 53 that, “On 23 December 2015, the Deputy Chief Minister noted, on the basis of the recommendations of the DSSSB on the alleged irregularities in the examination, that all candidates who were in the zone of consideration may be scrutinised to check for impersonation “before the decision of the Board regarding declaration of the results”. Candidates in the zone of consideration who would fail to attend the process of verification would stand disqualified from the examination. The second Committee was then constituted to check the credentials of all candidates falling in the zone of consideration. This led to the report of the second Committee. The Committee noted that out of 290 candidates who were called, 270 remained present and another lot of 11 candidates came forth upon being granted a further opportunity. After conducting a process of verification the Committee observed that “no irregularity is found in the documents of the 281 present candidates”. However, in the meantime, an FIR was lodged on 18 January 2016 by the Anti-Corruption Branch, Delhi; the files in original were seized on 19 February 2016 and certified copies of the dossier were subsequently seized on 26 February 2016. The Deputy Chief Minister on 2 March 2016, was apprised of the report of the second Committee. The Deputy Chief Minister noted that verification had been carried out in respect of the candidates who were in the zone of consideration. At the same time, the report of the Directorate of Vigilance indicated that the examination process had been vitiated and “there are far serious complaints about the conduct of Tier-I examination for the same post code”. Noting that there should be “zero tolerance towards corruption and officials who may join government through improper examination are just not acceptable”, a decision was taken to cancel the entire examination. However, an age relaxation was provided for candidates to appear in the new examination.”

As we see, it is then mentioned in para 54 that, “The drift of the submissions which have been urged by Mr PS Patwalia, learned Senior Counsel is that when the Deputy Chief Minister directed that a Committee be constituted to check for impersonation from amongst candidates within the zone of selection, by his noting dated 23 December 2015, this would necessarily mean that the explanation which was tendered by DSSSB in regard to whether any irregularities had taken place in the examination stood accepted and nothing further remained except to check for impersonation. Hence, it has been submitted that once the second Committee came to the conclusion that none of the 281 candidates in the zone of selection were found to be engaged in impersonation, there was no basis thereafter to cancel the examination. On the other hand, Ms Madhavi Divan, learned ASG has submitted that the remit of the second Committee was narrow in scope, which was to verify only the aspects of impersonation. This did not efface the findings in the report of the first committee and the deputy Chief Minister could have legitimately decided to cancel the entire process.”

As a corollary, the Bench then holds in para 55 that, “We find on the basis of the record that there is substance in the submission which has been urged by the ASG. The complaints in regard to the recruitment process related both to the Tier-I and Tier-II examinations. The complaints were carefully analysed by the first Committee and as noted earlier serious irregularities were found. The irregularities were not confined to acts of mal-practice or unfair means on the part of a specific group of persons. On the contrary, the report of the Committee found deficiencies of a systemic nature which cast serious doubts on the legitimacy of the entire process of recruitment involving both the Tier-I and Tier-II examinations. The order of the Deputy Chief Minister dated 23 December 2015 did not differ with the conclusions of the first Committee. In fact, the said order refrained from commenting on the findings of the first Committee. All that the Deputy Chief Minister’s order directed was the narrowing of the scope of further investigation to one of the irregularities, that is, impersonation. In directing that a verification be carried out on whether any of the candidates in the zone of selection had been guilty of impersonation, the Deputy Chief Minister’s order did not wipe out the irregularities in the entire examination process. It is not possible to accept the submission that after ordering a verification on impersonation, nothing further remained to be done and that there could be no further rejection of the sanctity of the process on the basis of the report of the first Committee. It is quite possible that the Deputy Chief Minister directed a further investigation into the allegations of impersonation only to lend credibility to the ultimate decision which he would take. Mr Patwalia has made a strenuous effort to read from the explanation submitted by DSSSB, urging that as many as three IAS officers and other officers who had appended their signatures to the explanatory note provided a justification to the defence that the Tier-I and Tier-II examinations did not suffer from flaws. It must be noted that the conduct of DSSSB and its officials was itself under a cloud. Their explanation could by no means be regarded as conclusive or binding upon the authorities of GNCTD. The Deputy Chief Minister in recommending that the entire process be cancelled emphasised the systemic nature of the violations which had taken place. These violations may or may not involve all of the candidates within the ultimate zone of selection but that in our view is beside the point for the simple reason that the gravamen of the charge in the present case is not in regard to the taint which attaches to a specific group of persons but to the sanctity of the recruitment process as a whole. The precedents of this Court sufficiently demonstrate that when the credibility of an entire examination stands vitiated by systemic irregularities, the issue then is not about seeking to identify the candidates who are tainted. In the present case, as we have seen, there was a basic denial of equal access to the Tier-I examination. The nature of the allegations which were found to be substantiated upon a careful examination by the first Committee showed that the credibility of the process itself had been eroded. In such a situation, where a decision is taken by the Government to cancel the entire process, it cannot be held to be irrational or arbitrary, applying the yardstick of fair procedure and proportionality to the decision-making process.”

What’s more, the Bench then observes in para 56 that, “During the course of his submissions, Mr PS Patwalia has sought to provide explanations for each of the systemic irregularities pointed out by the first Committee, including the drastic reduction in the number of candidates who appeared for the Tier-I examination, non-issuance of hard copies of admit cards, shortlisting of candidates belonging to a certain geographical area, lack of randomization in the examination centres, among others. In response to this, the learned ASG has pointed out that while assessing whether the recruitment process has been compromised, the factors (or irregularities) must be looked at cumulatively to ascertain whether they are sufficiently grave to cancel the recruitment. We find ourselves in agreement with the learned ASG. So long as there is sufficient basis to contend that mass-scale irregularities have occurred, this Court need not indulge in a roving inquiry to rule out all possible explanations and alternative scenarios where such irregularities would be justified.”

Most significantly, what forms the cornerstone of this brilliant judgment is thus stated in para 57 as:

“Recruitment to public services must command public confidence. Persons who are recruited are intended to fulfil public functions associated with the functioning of the Government. Where the entire process is found to be flawed, its cancellation may undoubtedly cause hardship to a few who may not specifically be found to be involved in wrong-doing. But that is not sufficient to nullify the ultimate decision to cancel an examination where the nature of the wrong-doing cuts through the entire process so as to seriously impinge upon the legitimacy of the examinations which have been held for recruitment. Both the High Court and the Tribunal have, in our view, erred in laying exclusive focus on the report of the second Committee which was confined to the issue of impersonation. The report of the second Committee is only one facet of the matter. The Deputy Chief Minister was justified in going beyond it and ultimately recommending that the entire process should be cancelled on the basis of the findings which were arrived at in the report of the first Committee. Those findings do not stand obliterated nor has the Tribunal found any fault with those findings. In this view of the matter, both the judgments of the Tribunal and the High Court are unsustainable.”

For the sake of clarity, the Bench then clarifies in para 58 that, “During the course of her submissions, the ASG has placed on record the fact that in the subsequent recruitment processes a number of the 281 candidates participated afresh. An age relaxation had been granted. In 2017, 133 out of 281 candidates participated and 13 were selected. In 2020, 87 out of the 281 participated, and 3 of them were short-listed. During the course of her submissions, the ASG has also submitted that even among the 281 candidates, it is not possible to conclude that all of them are untainted. In the view which we have taken it is not necessary to dwell on this aspect of the matter once the Court has arrived at the conclusion that the entire process was vitiated and that the cancellation was proper.”

More significantly, the Bench then goes on to add in para 59 that, “The Tribunal while setting aside the decision to cancel the recruitment process directed the Government to process the appointments of all 281 candidates who were found to be within the zone of selection though as a matter of fact only 6 of them had moved the Tribunal. After DSSSB and GNCTD moved the High Court in proceedings under Article 226 to challenge the decision of the Tribunal, intervention applications were moved by several candidates. These interventions were rejected by the High Court and we have also extracted from the order passed during the pendency of the proceedings on 15 December 2017 in para 20 of this judgment. The High Court while dismissing the applications for intervention noted that the cause of action had accrued on 15 March 2016 when the entire examination had been cancelled, in spite of which none of the intervening candidates had challenged the decision. The judgment of the High Court in the present case was delivered on 13 January 2020 and it is only thereafter that this Court has been moved under Article 136 of the Constitution. Some of the petitioners who instituted Special Leave Petitions before this Court had not even moved applications for intervention before the High Court. Others did not pursue their remedies against the order of the High Court dated 15 December 2017 for over 2 years. They have taken no steps to challenge the decision for the cancellation of the examination. In view of the fact that we have upheld the submissions of DSSSB and GNCTD and proceed to set aside the judgment of the High Court, the SLPs filed by the candidates would have to stand rejected, in any event.”

Finally, it is then held in para 60 that, “For the above reasons, we order and direct:

(i) The facts which have come to light during the course of the hearing of this batch of SLPs reflect on the serious flaws in the process which was conducted by DSSSB. DSSSB and GNCTD must now take adequate measures to ensure against the recurrence of such instances which erode the credibility of and public confidence in the recruitment process. We direct that a comprehensive exercise to re-visit the modalities and safeguards be carried out within a period of two months to ensure that the probity of the recruitment process in future is maintained;

(ii) The notification dated 15 March 2016 of GNCTD cancelling the Tier-I and Tier-II examinations held for recruitment to the post of Head Clerk [(Grade II (DASS)] under post code 90/09 is upheld;

(iii) The appeals filed by DSSSB (arising from Special Leave Petition (C) No. 11940 of 2020) and GNCTD (arising from Special Leave Petition (C) No. 12066 of 2020) are allowed;

(iv) The judgment of the Division Bench of the Delhi High Court dated 13 January 2020 (and in consequence the judgment of the Tribunal) are set aside; and

(v) The companion appeals arising out of the SLPs (SLP(C) No. 5785-5786/2020 SLP(C) No. 5783-5784/2020 SLP(C) No. 5370-5371/2020 SLP(C) No. 8811-8812/2020 SLP(C) No. 11443-11444/2020 SLP(C) No. 11441-11442/2020 SLP(C) No. 12410-12411/2020 SLP(C) No. 15297-15298/2020 SLP(C) No. 15299-15300/2020 SLP(C) No. 110-111/2021) filed by the candidates stand dismissed.”

All said and done, it has to be said in all fairness that the Apex Court Bench led by Justice Dr DY Chandrachud has very rightly decided to cancel the examination by Delhi Subordinate Services Selection Board as there were several very serious questions which were raised on its efficiency and neutrality and which we have already discussed above in detail. If the legitimacy of the examination itself comes under a cloud then the better option certainly is to cancel it! This is exactly what the Apex Court too has done very rightly in this leading case also! All the Courts must always definitely follow what has been laid down in this leading case in similar such cases!