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SUPREME COURT OF INDIA
DHANANJAYA Y CHANDRACHUD, M R SHAH, JJ.
Sachin Kumar & Ors – Appellants
Versus
Delhi Subordinate Service Selection Board (DSSSB) & Ors. – Respondents
Civil Appeal Nos. 639-640 of 2021 @ SLP (C) Nos. 5785-5786 of 2020, Civil Appeal Nos. 643-644 of 2021 @ SLP (C) Nos. 5783-5784 of 2020, Civil Appeal Nos. 641-642 of 2021 @SLP (C) Nos. 5370-5371 of 2020, Civil Appeal Nos. 645-646 of 2021 @SLP (C) Nos. 8811-8812 of 2020, Civil Appeal Nos. 649-650 of 2021 @SLP (C) Nos. 11443-11444 of 2020, Civil Appeal Nos. 647-648 of 2021 @SLP (C) Nos. 11441-11442 of 2020, Civil Appeal No 651 of 2021 @ SLP (C) No. 11940 of 2020, Civil Appeal Nos. 653-654 of 2021 @ SLP (C) Nos. 12410-12411 of 2020, Civil Appeal Nos. 652 of 2021 @SLP (C) No. 12066 of 2020, Civil Appeal Nos. 655-656 of 2021 @SLP (C) Nos. 15297-15298 of 2020, Civil Appeal Nos. 657-658 of 2021 @SLP (C) Nos. 15299-15300 of 2020, Civil Appeal Nos. 659-660 of 2021 @SLP (C) Nos. 110-111 of 2021
Decided On : 03-03-2021
(A) Constitution of India – Articles 14 and 16 – Selection – 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 – Selection involves intense competition and there is no dearth of individuals who try and bend rules to gain an unfair leap in the race – Irregularities in the process give rise to misgivings over whether process has denied equal access to all persons – Sanctity of selection process comes under a cloud – Detection of individual wrongdoing by candidates may result in action being taken to exclude those whose credentials or performance is tainted – But when entire process is tainted, authority in charge of conducting it may decide to cancel selection as a whole – Need to preserve public confidence in and sanctity of selection to public posts and requirement of observing fairness to candidates who invest time and resources in attempting to clear through a selection, both these considerations have constitutional foundation going beyond service and administrative law principles. (Para 2)
(B) Service Law – Selection Process – Cancellation – Fair and reasonable process of selection to posts subject to 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 a recourse to unfair means has taken place on a systemic scale, it may be difficult to segregate tainted from untainted participants in the process – Large scale irregularities including those which have effect of denying equal access to similarly circumstanced candidates are suggestive of a malaise which has eroded credibility of process – At other end of spectrum are cases where some of participants in 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 rules and to exclude 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 wrong-doers, selection of untainted candidates can be allowed to pass muster by taking 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 constitutional duty by which public bodies have to act fairly and reasonably – Where recruitment to public employment stands vitiated as a consequence of systemic fraud or irregularities, entire process becomes illegitimate – On 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 burden of their wrong-doing on those who are free from taint – To treat innocent and wrong-doers equally by subjecting former to consequence of cancellation of entire process would be contrary to Article 14 because unequals would then be treated equally – Requirement that a public body must act in fair and reasonable terms animates entire process of selection. (Para 33)
(C) Service Law – Selection – Fairness to candidates who participate in the process is an important consideration – Recruiting authority is entitled to take a bona fide view, based on material before it, that entire process stands vitiated as a result of which a fresh selection process should be initiated – Integrity of selection process cannot be lightly disregarded by High Court substituting its own subjective opinion on sufficiency of material which has been taken into account by decision making authority – There may be situations where candidates who have indulged in irregularities can be identified and it is then possible for authority to segregate tainted from untainted candidates – On other hand, there may be situations where nature of irregularities may be manifold and number of candidates involved is of such a magnitude that it is impossible to precisely delineate or segregate tainted from untainted – A considered decision of authority based on material before it taken bona fide should not lightly be interfered in exercise of powers of judicial review unless it stands vitiated on grounds of unreasonableness or proportionality. (Para 47)
(D) Service Law – Selection Process – Cancellation – Gravamen of charge in present case is not in regard to taint which attaches to a specific group of persons but to sanctity of recruitment process as a whole – Recruitment to public services must command public confidence – Persons who are recruited are intended to fulfil public functions associated with functioning of Government – Where entire process is found to be flawed, its cancellation may cause hardship to a few who may not specifically be found to be involved in wrong-doing – But that is not sufficient to nullify ultimate decision to cancel an examination where nature of wrong-doing cuts through entire process so as to seriously impinge upon legitimacy examinations which have been held for recruitment – Both High Court and Tribunal have erred in laying exclusive focus on report of second Committee which was confined to issue of impersonation – Judgments of High Court and Tribunal set aside – DSSSB and GNCTD must now take adequate measures to ensure against recurrence of such instances which erode credibility of and public confidence in recruitment process. (Paras 55, 57 and 60)
Facts of the case:
This judgment visits a familiar conundrum in service jurisprudence. This batch of twelve appeals arises from a judgment of a Division Bench of the High Court of Delhi dated 13th January 2020. Tribunal annulled decision of the Government of the National Capital Territory of Delhi to cancel the recruitment process conducted for appointments to post of Head Clerk [(Grade 2) (DASS)] in 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. High Court upheld decision of Tribunal by impugned judgment.
Findings of Court:
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. A comprehensive exercise to re-visit the modalities and safeguards would be carried out within a period of two months to ensure that the probity of the recruitment process in future is maintained.
Result : Appeals allowed.
JUDGMENT :
DHANANJAYA Y CHANDRACHUD, J.
This judgment has been divided into the following sections:
A Broad contours of the litigation
B Factual background
C Proceedings before the Tribunal
D Proceedings before the Delhi High Court
E Submissions
F The position in law
G The present case
A Broad contours of the litigation
1. Leave granted.
2. This judgment visits a familiar conundrum in service jurisprudence. The constitutional values which undergird Articles 14 and 16 mandate that selection processes conducted by public authorities to make recruitments have to be fair, transparent and accountable. All too often, human fallibility and foibles intrude into the selection processes. Selection involves intense competition and there is no dearth of individuals who try and bend the rules to gain an unfair leap in the race. Irregularities in the process give rise to misgivings over whether the process has denied equal access to all persons. The sanctity of the selection process comes under a cloud. The detection of individual wrongdoing by candidates may result in action being taken to exclude those whose credentials or performance is tainted. But when the entire process is tainted, the authority in charge of conducting it may decide to cancel the selection as a whole. Judicial review is then invoked to challenge the decision to cancel the entire process. The guiding principles have evolved over the past five decades as new challenges emerged and novel attempts to suborn the legitimacy of recruitment processes have come to the fore. The Delhi High Court in the present case upheld the view of the Central Administrative Tribunal (“Tribunal”) that the cancellation of the entire process was invalid but it confined the relief to six candidates who had moved the proceedings before the Tribunal in the first instance. Like other cases of its genre, this batch of appeals calls the court to balance two competing considerations : the need to preserve public confidence in and the sanctity of selection to public posts and the requirement of observing fairness to candidates who invest time and resources in attempting to clear through a selection. Both these considerations have a constitutional foundation going beyond service and administrative law principles. The issue has travelled to the court for resolution and the path ahead requires us to revisit and evolve the law on the subject.
3. This batch of twelve appeals arises from a judgment of a Division Bench of the High Court of Delhi dated 13 January 2020. Two petitions under Article 226 of the Constitution were instituted by the Delhi Subordinate Services Selection Board (“DSSSB”) in order to question the legality of the orders of the Tribunal dated 1 February 2017 and 27 February 2017. The Tribunal annulled the decision of the Government of the National Capital Territory of Delhi (“GNCTD”) to cancel the recruitment process conducted for appointments to the post of Head Clerk [(Grade 2) (DASS)] in the GNCTD. As a consequence, the Tribunal directed the DSSSB to conclude the selection process for which the Tier-I and Tier-II examinations had been conducted. The proceedings before the Tribunal in two OAs[OA No. 3941 of 2015 and OA No.1578 of 2016]1 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
(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
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