Chief General Manager, Calcutta Telephones District, Bharat Sanchar Nigam Limited and Ors. v. Surendra Nath Pandey and Ors.
SURINDER SINGH NIJJAR, J .. 1. Leave granted.
2. This appeal is directed against the final judgment and E
order of the High Court of Judicature at Kolkata dated 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 F
the appellants 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., G
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
848 SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R.
A 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 8 departmental examination on 20th February, 1999, 21st
February, 1999 & 22nd February, 1999 for appointing Junior
Accounts Officers in the Department of Telecommunication
under the Ministry of Communication. The respondents
appeared in the said examination; however, when the result
C 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
D 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
E 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."
G Thereafter, the Assistant General Manager, Recruitment &
Establishment, Calcutta Telephones wrote a letter to the
Assistant Director General (Departmental Examination), New
Delhi on 9th February, 2000 requesting disclosure of marks
obtained by the respondents in the said examination.
C.G .. M., CAL. TEL. DIST., B.S.N. v. SURENDRA NATH 849
PANDEY [SURINDER SINGH NIJJAR, J.]
6. The respondents' request for being intimated of the A
mar~s 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 8
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. c
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 respondent's candidature was
cancelled on account of some irregular practices having been D
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. · E
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 . F
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 G
the syllabus for the examination prescribed the books allowed
to be used by the candidates for answering questions however;
the respondents had used guide bovks for answering questions
in the examination. Use of guide books was not permissible.
The Learned Single Jud,ge observed that, the allegation was H
A 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
B 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
c 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.
10. The appellants aggrieved by the order and judgment
of the learned Single Judge, filed appeal before the Division
D 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
E 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
F not act as an estoppe/ 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
G the appellants submitted that both the learned Single 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
H opportunity of hearing to each individual candidate did not
C.G..M., CAL. TEL. DIST., B.S.N. v. SURENDRA NATH 851
PANDEY [SURINDER SINGH NIJJAR, J.]
copying was discovered only because the answers given to A
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 B
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 book which was
not permissible. They were only entitled to make the use of the C
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 t~e departmental
examination. She further submits that CAT in its order dated D
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 E
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 F
School & Intermediate Education UP. Vs, Bag/eshwpr
Prasad1, Union Public Service Commission Vs. Jagannath
Mishra 2, Madhyamic Shiksha Manda/, M.P. Vs. Abilash
Shiksha · Prasar Samiti3, Chairman J & K State Board
Education Vs. Feyaz Ahmed Malik & Ors. 4, and Chairman, G
1. (1962 3 SCR 767)
2. 2009 (9) sec 237.
3. 1998 (9) sec 236.
4. c2000 (3) 7 sec 59) · H
A All India Railway Recruitment Board Vs. K. Shyam Kumar &
Ors5.
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
B 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
c cancellation of the whole examination. The respondents only
came to know about it when they received the speaking order.
Learned senior counsel further submitted that during the ·
proceeding before the learned Single Judge, the appellants did
not produce the original record, therefore, the question would
D 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
E 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 befora
the committee, even the examiners and/or the supervising staff
were not called for questioning. By his letter dated 14th
F 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 the
report of the Officers of the Vigilance Wing. Making a reference
G to the rules relating to the departmental examination, Part Ill 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.
H s. (2010 (6) sec 614.
C.G .. M., CAL. TEL. DIST., B.S.N. I'. SURENDRA NATH 853
PANDEY [SURINDER SINGH NIJJAR, J.]
These are that: candidates should make sure that they have no A
unauthorized books or ~aper with them; they should carefully
read and follow the instn.lctions 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 B
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 ~ubmits that on conclusion ofthe
examination after the last paper, the supervising officer is
required to give a very comprehensive certificate in the form c
prescribed in the aforesaid rules. According to the learned
senior counsel, once the certificate was issued 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 0
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 E
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. F
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 denied the
promotions as they have not appeared in the examination. G
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 H
854 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A 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
B 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
c examination had been held on 18th, 19th & 20th of February,
1999. According to the learned senior counsel the judgment of
the Division Bench correctly recorded the conclusion that since
the respondents have been given ad-hoc promotion in the next
higher ra.nk, any past alleged misconduct is wiped out.
D 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
E 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. F 15. We have considered the submissions made by the
learned counsel for the parties at length. The 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
G 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 tield peacefully and in
a fair manner.
16. On this basis, Mr. Mukherjee has submitted that this
C.G..M., CAL. TEL. DIST., B.S.N. v. SURENDRfd~ATH 855
PANDEY [SURINDER SINGH NIJJAR, J.]
would lead to a presumption that no unfair means had been A
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 B 1
answer books of Paper X. It was noticed that the answers
written by 66 candidates at 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 c
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 D
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 E
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 F
suspected mass-copying is reasonably
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 · G
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 H
A for comparison and review. The Committee observed as
follows:
1
• '
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.
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
E 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
F 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
G Education Board Vs. Subhas Chandra Sinha6, wherein a
similar plea with regard to breach of rules of Natural 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
H 6. (1970 (1) sec 648).
C.G .. M., CAL. TEL. DIST., B.S.N.·v. SURENDRA NATH 857
PANDEY [SURINDER SINGH NIJJAR, J.]
Court rejected the plea of breach of rules of Natural Justice, A
as follows:-
"This is not a case of any particular individual who is being
charged with adoption of unfair means but of the conduct
ofall the examinees or at least a vast majority of them at
a particular centre. If it is not a question of charging any B
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 C
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 D
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 wh.ole had to go."
(emphasis supplied) E
19. In the present case, there is not eve1-1 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 F
books prescribed in the 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 G
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 H
858 SUPREME COURT REPORTS (2011) 14 (ADDL.) S.C.R.
A & Ors. Vs. Anand Kumar Pandey & Ors. 7 In this case, the
Railway Recruitment Board, Patna invited c;1pplications 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
B 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 qualified in the
viva-voce test and their names were included in the panel of
c 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
0 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,
E 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. 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
H 7. 1994 (5) sec 663).
C.G .. M., CAL. TEL. DIST., B.S.N. v. SURENDRA NATH 859
PANDEY [SURINDER SINGH NIJJAR, J.]
result of the said centre. Although it would have been fair A
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 B
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 c
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 D
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." E
(emphasis supplied)
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 F
Committee of high ranking officers of ttie department. In our
opinion, the High Court was 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 G
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, H
A 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.
B 22. It is perhaps keeping in mind the aforesaid principles .
that this· Court in the case of B. Ramanjini & Ors. Vs. State of
A.P. & Ors.8, indicated that a decision taken by the competent
authority on the basis of relevant material ought not to be lightly
interfered with by the Court in exercise of its power of judicial
C review. In Paragraph & 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
D 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 foreknow/edge of the question paper or
E 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 'IOt to take the
F 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
G 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.
H s. 2002 (5) sec 533.
C.G .. M., CAL. TEL. DIST., B.S.N. v. SURENDRA NATH 861
PANDEY [SURINDER SINGH NIJJAR, J.]
24. We also do not find any merit in the submissions of A
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 B
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 c
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 D ·
that the cancellation. of the result is in any manner,
impermissible.
25. We are also of the considered opinion that the Division
Bench was not justified in holding that meraly because the ·
respondents had been given ad-hoc promotion, the previous E
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 F
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 G
judgment of the learned Single Judge and the Division Bench
impugned herein are not sustainable. Consequently, the appeal
is allowed and the judgments of the learned Single Judge as
well as the Division Bench are hereby set aside.
D.G. Appeal allowed. H