Joginder Pal & Ors. v. State of Punjab & Ors.

A.K. SIKRI, J.

One Mr. Ravinderpal Singh Sidhu was the
Chairman of the Punjab Public Service Commission (for short, Civil Appeal Nos. 5589-5605/2014 & connected matters
'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 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 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
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 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 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 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 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.
(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 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 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 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.
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 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, 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:
S.No
.
Case No.
Name
Remarks