W.P.(C)/1846/2016 of CENTRE FOR POLICY RESEARCH Vs AIRPORT AUTHORITY OF INDIA

IN THE HIGH COURT OF DELHI AT NEW DELHI

%Judgment delivered on: 29.07.2019

+W.P.(C) 1846/2016 & CM APPL. 7907/2016

CENTRE FOR POLICY RESEARCH

..... Petitioner

Versus

AIRPORT AUTHORITY OF INDIA

..... Respondent

CORAMHON’BLE MR JUSTICE VIBHU BAKHRU

VIBHU BAKHRU, J

JUDGMENT

1.The petitioner is society registered under the SocietiesRegistration Act, 1860. It impugns an order dated 20.10.2015(hereafter ‘the impugned order’) passed by the respondent (AirportAuthority of India – hereafter ‘AAI’) debarring the petitioner fromtaking up any recruitment exercise for AAI for period of three years.

2.It is further stated in the impugned order that the decision tofurther debar/blacklist the petitioner would be reviewed after theoutcome of the investigations by the Crime Branch, Delhi Police. The

petitioner was engaged by AAI, in terms of the letters dated19.03.2012 and 10.07.2012, to conduct written examinations forrecruitment of personnel to various disciplines. The advertisements(Advertisement Nos. 1/2012 and 2/2012) to fill up 917 vacancies in 35cadres of AAI were published and the petitioner was charged with thefunction of carrying out the written examinations for recruitmentagainst the said advertisements. It is alleged that there were certainirregularities in the recruitment process and the marks awarded to thecandidates belonging to general category were manipulated in favourof set of candidates from the Delhi Region.

3.The recruitment process against the examinations conducted bythe petitioner was cancelled by AAI.

4.AAI also filed an FIR against the petitioner, which is pendinginvestigation. And, the petitioner was also debarred from taking upany recruitment exercise for AAI in terms of the impugned order.

5.The petitioner has assailed the impugned order on, essentially,two grounds. It is stated that the allegations against the petitioner arepremised on an investigation report furnished by the Directorate ofVigilance but copy of the same was not furnished to the petitioner. Itis contended that in the circumstances, the petitioner had noopportunity to counter the allegations made in the said report and theimpugned order, which is founded on the said report, has been passedin violation of the principles of natural justice.

6.Second, it is submitted that the impugned order is unreasoned tothe extent it rejects the petitioner’s explanation/response to variousalleged irregularities,withoutindicatingany reasonsforsuchrejection. The petitioner has also challenged the report contending thatthe conclusions drawn by the Directorate of Vigilance were notsupported by the analysis as reflected therein.

7.The petitioner claims that it is one of the India’s leading thinktanks in public policy, since 1973. The petitioner claims that it hasbeen assisting various public sector/government organizations in therecruitment of personnel to different posts since 1981. The petitionerclaims that it has successfully conducted many written tests on behalfof the public sector/government organizations over the past thirty-fiveyears and apart from this case, there has been no allegation against thepetitioner of any irregularity or manipulation. The petitioner claimsthat it enjoys an unblemished reputation, which is now sullied by theaction taken by AAI.

8.The petitioner has been conducting examinations on behalf ofAAI from the year 2006 onwards. On 06.03.2012, AAI appointed thepetitioner to undertake the task of formulating question papers,conducting examination in Delhi and evaluation of answer sheets forrecruitment to various disciplines, namely, Junior Executive (PR),Junior Executive (HR), Junior Executive (Civil), Junior Executive(Electrical), Assistant Manager (Security) and Junior Executive(Security).

9.On 29.05.2012, AAI sent letter conveying its approval of therates for specified tasks. The petitioner was also informed that AAIhad decided that in the first place, written examinations would beconducted for recruitment of Junior Engineer, ATC and JuniorEngineer, Electronics.

10.Inthemeantime,on01.03.2012,AAIpublishedanadvertisement on its website inviting applications for various posts insixteendisciplines(AdvertisementNo.02/2012).Thesaidadvertisement was also published in daily newspapers on 06.03.2012.The said advertisement indicated that there were twenty vacancies tobe filled for the post of Junior Engineer, ATC.

11.Initially, the closing date for applications was 01.04.2012 butthe same was subsequently extended to 30.04.2012.

12.The recruitment exercise for filling up vacancies againstAdvertisement No. 01/2012 was completed in the early part ofJanuary, 2012. Advertisement No. 02/2012 was issued for filling up588 vacancies at E-1, E-3 and E-6 levels for the post of JuniorExecutive, Manager and Deputy General Manager respectively inthirty-three grades, including twenty vacancies for the post of JuniorExecutive (IT).

13.After the written examinations were conducted, AAI constitutedan Interview Board for conducting the interviews of the short-listedcandidates and evaluating them on the said basis.The number of

candidates called for the interview numbered approximately two and ahalf times the number of vacancies.

14.After the results were declared, the Chairman of AAI noticedthat disproportionately large number of candidates from the DelhiRegion were selected. Sometime in February 2013, the matter wasreferred to the Central Vigilance Officer (CVO) for clearance and by anote dated 08.02.2013, the CVO called for various documents andinformationregardingtherecruitmentexerciseagainsttheAdvertisement No. 02/2012.

15.The CVO submitted note indicating that the investigation wasunder process but it, prima facie, appeared that the role of thepetitioner was not above board.

16.Pending further investigations, the Chairman, AAI decided todefer the process of recruitment pursuant to the results declared in theyear 2013.

17.Thereafter, notice was put up by AAI on its website statingthat for administrative reasons, the recruitment process relating toAdvertisement No. 02/2012 had been put on hold.

18.AAI also constituted an Enquiry Committee which was held bytheExecutiveDirector(Technical)toexaminewhetherthecancellationoftheexaminationprocesswaswarranted.On07.12.2013,theEnquiryCommitteesubmitteditsreport

recommending that the process of the examination be held afreshwithout involving the petitioner.

19.In the meantime, one of the successful candidates filed writpetition captioned Vikas Bhardwaj v. Airport Authority of India:W.P.(C) 399/2014. In the said petition, this Court directed AAI toconsider the report of the Enquiry Committee and take an appropriatedecision in the matter in time bound manner.

20.It is stated that the Enquiry Report was accepted by thecompetent authority of AAI on 31.01.2014 and thereafter, AAI issueda notice dated 21.03.2014 declaring its decision to conduct theselection process afresh for the posts advertised by Advertisement No.02/2012 dated 01.03.2012.

21.In the meanwhile, AAI issued show cause notice dated19.08.2013 calling upon the petitioner to show cause as to why actionshould not be taken against the petitioner including debarring it fromparticipating in the tender floated in future for any recruitmentexercise. In the said show-cause notice, it was alleged that (i) AAIhad requested the petitioner for copies of the question booklet used forthe written examination but the petitioner had failed to submit thesame; (ii) in some cases, complete documents had not been supplied;(iii) attendance sheets did not bear the signature of the candidates; and(iv) certain OMR sheets of candidates in respect of Junior Executive(Civil) and Junior Executive (Electrical) were not available. The saidshow cause notice also stated that the matter is under investigation.

22.The petitioner responded to the said show cause notice by theletter dated 04.09.2013, stating that the question booklets arepreservedonlyforaperiodofsixtydaysafterthedeclaration/submission of results and thereafter, the same are weededout on account of paucity of space. The petitioner further stated thatthis process was followed consistently since the past six years andAAI had never called upon the petitioner to preserve the booklets atany stage. It was also stated by the petitioner that AAI used to destroythe question booklets immediately when such examinations wereconducted by AAI; that is, prior to the same being outsourced to thepetitioner. The petitioner also refuted the allegation that it had notsupplied all the other documents, viz, attendance sheets, admit cardsand OMR answer sheets to AAI.

23.In view of the aforesaid allegations, AAI also withheld thepayment due to the petitioner.

24.It is stated that on 24.04.2014, the Vigilance Directoratesubmitted preliminary report to the Competent Authority (AAI). Itis stated that thereafter, there was rethink on the part of AAI and on19.11.2014, AAI decided to scrap the entire recruitment processundertaken pursuant to Advertisement No. 02/2012 and issue freshadvertisement.

25.On 11.02.2015, AAI issued another show cause notice to thepetitioner calling upon the petitioner to show cause as to why thepetitioner not be debarred from participating in the tender process in

future and to withhold the balance amount due to the petitioner onaccount of alleged lapses as specified in the notice. The show causenotice contained several allegations against the petitioner.It wasalleged that the petitioner had been very casual in its approach inconducting written examinations. It was also stated that investigationshad been carried out which revealed that the examination scores hadbeen manipulated for selection of the pre-determined candidatesbelonging to the Delhi Region.

26.On 26.03.2015, the petitioner sent response to the said noticethrough its advocate, countering all allegations made in the showcause notice. In addition, the petitioner also demanded that itsoutstanding dues be cleared. AAI did not accept the petitioner’sresponse and passed the impugned order debarring the petitioner for aperiod of three years in the first instance.

27.In the meanwhile, an FIR, being FIR No. 62/2015 dated27.04.2015 under Sections 406/120B IPC, was also registered on acomplaint made by AAI and it is stated that the same is still pendinginvestigation.

28.It is also relevant to state that in the meanwhile, severalsuccessful candidates had approached this Court by filing writpetitions, inter alia, challenging the decision of AAI to conduct freshexamination. The said writ petitions (W.P.(C) 2204/2014 and otherconnected matters) were dismissed by the learned single judge by acommon judgment dated 25.01.2016. The appeals preferred by some

of the candidates (LPA No. 168/2016 and other connected matters)were also dismissed by the Division Bench of this Court by ajudgment dated 31.03.2016.

Discussions and Conclusion

29.At the outset, it is necessary to note that the petitioner hasalready suffered the punition imposed on it and the period for whichthe petitioner was initially debarred from participating in any tenderinvited by AAI for the recruitment process – that is, three years fromthe date of the impugned order – has since expired. The petitioner has,nonetheless, pursued this petition as it does not desire to suffer theignominy of being blacklisted by AAI. It is well accepted that thepunitive measure of blacklisting casts slur and stigma on the personblacklisted. This also adversely affects the blacklisted entity frompursuing its business on account of loss of reputation and goodwill. Itis, thus, necessary that the person being blacklisted is provided fullopportunity of meeting the allegations against it. This is to ensure thatthe authority blacklisting any person does so only after examining allfacets of the matter.

30.Keeping the aforesaid in mind, this Court may now proceed toexamine the allegations made in the show cause notices issued to thepetitioner. The first show cause notice was issued to the petitioner on19.08.2013, inter alia, alleging that the petitioner had not provided thequestion booklets for the written examination since the same wereweeded out while the recruitment process was still under way. It was

alleged that the said act was unauthorized as no instruction forweeding out the question booklets was issued by AAI. It was allegedthat the complete set of documents had not been provided and theattendance sheets furnished by the petitioner did not bear thesignatures of the candidates. These allegations were also reiterated inthe subsequent show cause notice issued on 11.02.2015.

31.In the show cause notice issued on 11.02.2015, AAI hadinformed the petitioner that an independent investigation had beencarried out by the Directorate of Vigilance in respect of therecruitment for the post of Junior Executive (IT). The petitioner wasalso informed that the Directorate of Vigilance had observed that setof candidates from the Delhi Region who either belong to the State ofHaryana or had obtained their qualifying degree from the said State,had scored 20% higher marks in the written examination in theirrespectivecategoriescomparedtocandidatesfromanyotherState/Region. It was also stated that performance of the saidcandidates in their qualifying degrees and interviews was much lowerthan the marks obtained in the written examinations. It was furtherstated that the result of the investigation had revealed that majority ofthe selected candidates in the general category, were pre-determinedby manipulation of their scores obtained by them in their writtenexaminations. AAI had also stated that it appeared that the candidateshad been supplied the questions prior to or during the examination, assome of the questions had been deliberately answered incorrectly so asto restrict their marks in the written examinations. It was found that

those candidates were not suitable for the post considering theacademic credentials and their performance during the interview.

32.In addition to the allegation regarding manipulation of marksawarded in favour of candidates belonging to certain region, AAIhad also alleged that the petitioner had been very casual in itsapproach in conducting the written examination on account of variousirregularities. The relevant extract of the show-cause notice, settingout the various alleged irregularities, is reproduced below:-

“a)In the column of OMR sheets name, roll No.,booklet series and Test Form No.etc., has beenfound to be filled by the candidates in ink or pencilas per their desire, no clear cut instructions isgiven to the candidates in respect of thesecolumns.booklet series and Test Form No.etc., has beenfound to be filled by the candidates in ink or pencilas per their desire, no clear cut instructions isgiven to the candidates in respect of thesecolumns.

b)The OMR sheet date does not indicate the postcode, date of examination etc.code, date of examination etc.

c)The OMR sheets supplied were not having SerialNos.Nos.

d)The marking of the answers in the OMR sheet isdone by the candidates by darkening the circleswith HB pencils, which can be tampered / alteredin absence of proper checks like providing aphotocopy / self carbon copy of the OMR sheets atthe exam centres of AAI observers.done by the candidates by darkening the circleswith HB pencils, which can be tampered / alteredin absence of proper checks like providing aphotocopy / self carbon copy of the OMR sheets atthe exam centres of AAI observers.

e)No column was provided for mentioning the RollNo. on test booklets to avoid exchange of the testbooklets by candidates.No. on test booklets to avoid exchange of the testbooklets by candidates.

f)Test Date and Post code was not mentioned on testbooklets.booklets.

g)There was no instruction on wrong answer ornegative marking in the test booklet.negative marking in the test booklet.

h)Instruction for use of mobiles / calculators orelectronic gadgets is notmentioned in the testbooklet.electronic gadgets is notmentioned in the testbooklet.

i)No instructions were given in the test booklets forfilling up the OMR Sheets.filling up the OMR Sheets.

j)Answer Keys submitted by the agency to Dte. ofHR in sealed cover, it is observed that same isnot certified or countersigned by the authorizedsignatory.HR in sealed cover, it is observed that same isnot certified or countersigned by the authorizedsignatory.

k)Correct answer is not given / provided against onequestion i.e. Booklet Series A-Q.No.14, B-Q.No.7,C.Q.No.39 &D-Q.No.24. However, It is found thatthe agency has evaluated the OMR sheets bytaking option 3 as correct answer forthis specificquestion. This shows that the agency's casualapproach during evaluation.question i.e. Booklet Series A-Q.No.14, B-Q.No.7,C.Q.No.39 &D-Q.No.24. However, It is found thatthe agency has evaluated the OMR sheets bytaking option 3 as correct answer forthis specificquestion. This shows that the agency's casualapproach during evaluation.

1)The integrity of the results provided by the agencyis also doubtful in view of the wrong questions inthe test booklets and discrepancies in the answerskeys like no answers for one question and error inthe marks obtained by one of the candidates i.e.Ms. Mona Taneja.is also doubtful in view of the wrong questions inthe test booklets and discrepancies in the answerskeys like no answers for one question and error inthe marks obtained by one of the candidates i.e.Ms. Mona Taneja.

m)Attendance sheets were not bearing candidate'ssignature,signature,

n)Some of the OMR sheets in respect of JE(Engg-Civil/Elect) were not available.”Civil/Elect) were not available.”

33.Insofar as the allegations regarding various irregularities areconcerned,thepetitionerrespondedindetailprovidingitsexplanations in regard to the procedure adopted. The petitioner alsoresponded to the allegations regarding manipulation of marks to

favour certain set of candidates. The relevant extract of the letter dated26.03.2015 setting out the petitioner’s response in this regard, isreproduced below:-

9.Thesheerarbitrarinessandunfairnessoftheseallegations,which aredeniedintotality,canbegathered from the following indisputable facts. Firstly,our Clients were obligated to conduct exams and issueresultsasperspecificationsandperthepastestablished practices. The AAI was well aware of ourpast practices and specifications and never questionedthe same prior to the Notice under Reply despite thelong standing relationship between the parties. OurClients cannot be blamed for the fact that AAI in thisparticular selection was not happy with the quality ofthe candidates who cleared the exams but did notperform well ininterviews.allegations,which aredeniedintotality,canbegathered from the following indisputable facts. Firstly,our Clients were obligated to conduct exams and issueresultsasperspecificationsandperthepastestablished practices. The AAI was well aware of ourpast practices and specifications and never questionedthe same prior to the Notice under Reply despite thelong standing relationship between the parties. OurClients cannot be blamed for the fact that AAI in thisparticular selection was not happy with the quality ofthe candidates who cleared the exams but did notperform well ininterviews.10. Secondly, the serious allegations as regards leakedquestion papers has been raised for the first time 2years after the results were declared and sent to theAAI. Thirdly, these allegations seem to be the result ofthe allegedly “independent investigation” carried outby the “Directorate ofVigilance” that has not thoughtit fit to even talk to our Clients who were completelyunaware of any investigation and who cannot vouchfor the accuracy of the results, or the methodologyadopted by this Directorate.question papers has been raised for the first time 2years after the results were declared and sent to theAAI. Thirdly, these allegations seem to be the result ofthe allegedly “independent investigation” carried outby the “Directorate ofVigilance” that has not thoughtit fit to even talk to our Clients who were completelyunaware of any investigation and who cannot vouchfor the accuracy of the results, or the methodologyadopted by this Directorate.

11. From perusal of the allegations, this serious chargeis based entirely upon the “investigation” of a“sample” test for Junior Executive (IT) and withoutregard to all the other exams for various postsconducted by our Clients. Further, from the Noticeunder Reply, it appears that this conclusion is basedentirely upon the intuition that certain candidates havereceived more marks in the written test in comparisonto their marks in their degrees. It is submitted thatis based entirely upon the “investigation” of a“sample” test for Junior Executive (IT) and withoutregard to all the other exams for various postsconducted by our Clients. Further, from the Noticeunder Reply, it appears that this conclusion is basedentirely upon the intuition that certain candidates havereceived more marks in the written test in comparisonto their marks in their degrees. It is submitted that

there are any number of explanations for this and thiscannot be conclusive proof or even prima facie proofof leaked question papers. One entirely plausibleexplanation, and there are several, is that the meritlists were drawn on the basis of combined marks ofcandidates in the general knowledge, general aptitude,general intelligence, English and technical sections.50% weightage was given to these general aptitudesection and 50% to the technical section. No qualifiedcut-offswereprescribedseparatelyforGeneralaptitude section and Technical section. In meetingwith AAI officials, in order to select good candidates,we suggested that the total number of questions beincreased from 100 to 150 and that separate cutoffs beprescribed for technical section, which was notimplemented. This could have resulted in somediscrepancy between the marks scored by candidatesmtheir qualifying examination and marks scored in thepresent test. That some candidates who perform wellin written tests do not always perform well in theinterviews is fact that is well known enough to be acliche. Further, the candidate's ability to expresshis/her views orally or on paper was not tested in thesewritten examinations containing objective questions.Perhaps descriptive question paper containing essaywriting, comprehension would have tested these traitsof the candidates. As regards the fact that suchcandidatesperformedpoorlyintheiracademicdegrees, again, this is hardly unusual as plenty ofpersonsworkharderforentranceexamsthanacademic ones and it is not written in stone that if acandidate performs poorly in one exam he cannot dobetter for others. The allegation that some questionswere “deliberately” marked wrong seems to be mereallegation belatedly raised and without any proof.”

34.It is clear from the above that the petitioner was fully aware thatthe allegations raised by AAI were premised on an investigation report

furnished by the Directorate of Vigilance. The petitioner alsoresponded to the same, however, the petitioner did not request for acopy of the report and proceeded to give its representation.

35.As explained by the Supreme Court in Gorkha SecuritiesServices v. Govt.(NCT): 2014 SCC Online SC 599, “the fundamentalpurpose behind serving Show Cause Notice is to make the noticeeunderstand the precise case set up against him which he has to meet.”.In the present case, AAI had informed the petitioner of the allegationslevelled against it. However, AAI had not forwarded copy of theinvestigation report, which contained the analysis of scores on whichsuch conclusion was founded. The question whether furnishing suchreport was necessary cannot be answered without referring to itscontents.

36.At this stage, it would be necessary to refer to the relevantpassages of the investigation report which, are set out below:-

“4.2.3It is apparent from the agency’s inability inadopting 9/10 digit roll numbers that the agency was alreadyhaving pre-printed Test booklets/OMR sheets in advancebefore conducting the exam for advertisement no.02/2012.This is against the spirit of fair and transparent conduct ofexams.4.2.4 The emails to the candidates requesting to downloadthe hall ticket were not sent before commencement of thewritten test on 26.08.12. Also it was not checked that howmany candidates had downloaded their hall tickets.This

casual approach might have led to lower percentage (19%)of candidates turning up for the written exam.

4.2.5 The half ticket issued by the Dte. of HR to thecandidates was not having their scanned photographs andsignatures uploaded at the time of application for matchingthe same during the written examination conducted by theagency.The details of the online recruitment applicantswere forwarded by Directorate of HR to the agency in excelformat does not include the scanned copy of photograph/digital or scanned signature of the candidate. Therefore thesignature and photographs of the candidates were notverified during/after the written exams.This createsopportunity for proxy sittings in the exam.

4.2.6 It has been observed that the observer have given theirreport in tailor made form i.e Total No. of Candidates andtheir attendance at the specific center. However, no specificreports/Comments in the form of general administration i.eany doubt about the question/copying or leakage of exam orany specific complaint made by the Candidate at theparticular center was not given. However, Directorate of HRsought the report through RED/APD on conduct of theexamination which has not been submitted by most of thecenter observers.

4.2.7. The agency vide their letter dt. 19.09.12 submitted theresult of written test to GM (HR) which was held on 26.08.12for the post of JE (IT). After receipt of the result from theagency the result was uploaded on AAI website on 16.10.12.However, it has been observed that no crosscheck or re-verification of the result viz-a-viz marks obtained by thesuccessful candidates has been done byt he HR as aconfirmation.

4.2.8. Ithasbeenobservedthatafterreceivingtheapplications online, all the other activities were donemanually or through M/s CPR. This is not in spirit of onlinerecruitment systems.4.2.9 There is scope for unscrupulous candidates to runaway with the question paper in the beginning of exam oradopt other sophisticated electronic gadgets to copy ad leakthe paper which can be solved and passed on to thecandidates sitting in the examination center since there is nopreliminary screening of candidates.

4.2.10.Therewasnosyllabusprovidedtotheagency/candidates for written examination.The pattern ofexamination was provided to the agency/candidates in thename of the syllabus”

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“6.2.1 Following has been observed from the list of selectedcandidates:

6.2.1.111 out of 11 General candidates, 4 out of 5 OBCcandidates, 2 out of 3 SC candidates and 1 out of 1 STcandidate selected from the post are from Delhi Region. Outof 20 candidates selected 14 candidates are either fromHaryana state or have obtained their qualifying degree fromthis state.

6.2.1.2ThecandidatesofDelhiregionmostlybelonging to the Haryana or studied there have scored up to20% higher marks in the written exam in their respectivecategories compared to any other state/region.

6.2.1.36 out of 11 general candidates, 3 out of 5 OBCcandidates were selected due to higher written marks andscored lower marks in interview.

6.2.1.4Out of the 11 selected general candidates 7candidates have secured less than 70 percentages of marks intheir qualifying degree, out of which 6 candidates had 65%marks or below in their qualifying degree.

6.2.1.5Out of 5 OBC candidates selected for the post 3were having 63% or lesser marks in their qualifying degreebut scored very high marks in written exams and lower marksin the interview.

6.2.1.6Out of 20 successful candidates 8 candidatesare from Maharshi Dayanand University and 3 candidatesare from Kurushetra University.

6.2.2.Following has been observed from the list ofunsuccessful candidates:

6.2.2.1The12outof14unsuccessfulgeneralcandidates have secured marks in written exams rangingfrom 73 to 76. All these candidates were good mix of allIndia students.Among these 12 unsuccessful generalcandidates 3 were having more than 80% of marks, 7 werehaving more than 75% marks and 2 were having more than70% marks in their qualifying degrees.

6.2.2.2Theremainingtwogeneralcandidatesbelonging to the Haryana scored very high marks in writtenexam but could not be selected as one candidate scored verylow marks (5) in interview and the other candidate did notattend the interview. Both these candidates have secured lessthan 70% marks in their qualifying degree.

6.2.2.3Similarly 2 OBC candidates belonging to theHaryana or studied there scored very high marks in writtenexam but could not be selected as 1 OBC candidate scoredvery low marks (4) in interview and the other candidate didnot attend the interview. Both these candidates have securedless than 70% marks in their qualifying degree.

6.2.2.4The only unsuccessful SC candidate belongingto the Haryana or studied there scored highest marks in SCcategory, but could not be selected due to very poor marks inthe interview (11). The candidate has secured 72% marks inthe qualifying degree.

6.2.2.5The presence of the candidates of Haryanaregion or having qualifying degree from Haryana in the listof unsuccessful candidates is very low i.e only 5 candidatesout of 36 and are mentioned in Para 6.2.2.2, 6.2.2.3 and6.2.2.4 of the report. These 5 candidates have scored up to20% more marks than other candidates in their respectivecategories but were not selected due to very poor marks ininterview or being absent. These candidates could have beenselected if they had scored even 50% marks in the interview.

6.2.3 Majority of the general candidates finally selected forthe posts appears to be predetermined candidates by virtue oftheir high scores in written examination. The analysis of theresults indicates that the marks of the written examinationare manipulated to favour set of candidates mostlybelonging to Haryana state or studied there.Thesecandidates are otherwise not academically sound and doesnot appear suitable for the post considering their credentialsand scores in interview.

6.2.4 The five OBC candidates who have scored high marksin written examination for the five vacancies in OBC

category also appears to be predetermined.This is not inline with the all India trend of scores which strongly suggestmanipulation in written exam. However, two of them couldnot make it to final selection as one of the candidate scoredonly 4 marks in interview and one candidate could not attendthe interview.

6.2.5. One of the SC candidates who have scored high marksin written exam for three vacancies in SC category alsoappears predetermined.However this candidate could notmake it to final selection besides scoring higher marks in thewritten exam among SC candidates due to poor score ininterview.

6.2.6. The candidates who have secured bare minimum of 5to 10 marks out of 30 in the interview are also coming in themerit list for giving offer of appointment due to their higherpercentage in the written test which is having weightage of80%.However, no action was taken in this regard bydepartment of HR.

6.2.7. The random checking of written test marks obtained bythe candidates appeared for the interview was carried out bythe team and it is observed that marks of one of the candidateMs. Mona Taneja (Roll No.110487) comes to 103 where asthe marks obtained has been shown as 101 in the resultsprovided by M/s CPR. This creates doubt over validity of theresults.

6.2.8 The majority of candidates selected are from DelhiRegion in which Haryana state also falls. The Region-wisenumbers of candidates who applied for the post andsubsequently appeared for written test are as under whichshows that 44% candidates appeared for written test are

from Delhi Region. However, in the final selection is 90%candidates are from Delhi Region.

.% of Delhi Region candidates among the candidatesappeared for written test:44%

.% of Delhi Region candidates selected among thecandidates called for interview:69.6%

.% of Delhi Region candidates finally selected i.e 18candidates out of 20 :90%

“7.2.1Following has been observed while analyzingthe OMR sheets used for the written examination:

i.In the column of OMR sheets name, roll No., bookletseries and Test Form No. etc., has been filled by thecandidates in ink or pencil as per their desire, no clear cutinstructions is given against these columns.

ii.The OMR sheet does not indicate the post code, date ofexamination etc.

iii.The OMR sheets supplied were not having Serial Nos.

7.2.2 It has been observed that Dte. Of HR has not ensuredthe following before/after conducting the exam:

a.Vetting of the answers keys from third independentagency.

b.Checking of sample test booklets/sample OMR sheets.

c.Reconciliation of final result with the OMR sheet.

7.2.3 The marking of the answers in the OMR sheet is doneby the candidates by darkening the circles with HB pencils,which can be tempered/altered with in absence of properchecks like obtaining photocopy of the OMR sheets at theexam centers by AAI observers.

7.2.4 The table for ‘A’ series booklet shows that thecandidates belonging to Haryana state or studied there orhave scored higher marks in written exam have marked sameoptions for the 10 wrong questions in this test booklet.Itappears that these candidates were supplied with answerkeys wherein some answers were deliberately marked wrong,

probably to control the scoring of marks in the writtenexamination.An extract of the table in respect of thesecandidates is as below:

7.2.5 The table for ‘B’ series booklet shows that thecandidates belonging to Haryana state or studied there orhave scored higher marks in written exam have marked sameoptions for the 12 wrong questions in the test booklet.Itappears that these candidates were supplied with answerkeys wherein some answers were deliberately marked wrong,probably to control the scoring of marks in the writtenexamination.An extract of the table in respect of thesecandidates is as below:

7.2.7 The table ‘D’ series booklet shows that the candidatesbelonging to Haryana state or studied there or have scoredhigher marks in written exam have marked same options forthe 11 wrong questions in this test booklet. It appears thatthese candidates were supplied with answer keys whereinsome answers were deliberately marked wrong, probably tocontrol the scoring of marks in the written examination. Anextract of the table in respect of these candidates is as below:

Roll No.NameResidentialMarksWrongSl.No.ofaddressobtainedanswerswrongin writtenanswersexamhavingsameoption of thecandidateswhohavescored highermarksinwritten exam111946ApoorvaTriNagar,101198(3),36(3),Delhi39(2),55(4),78(4),79(1),82 (4), 83(1),86(2),97(4),112(2)-11answers112406SunilPanipat,98228(3),36(3),PhourHaryana39(2),55(4),78(4),79(1),82 (4), 83(1),86(2),97(4),112(2)-11answers108082SachinPGurgaon,100208(3),36(3),uniaHaryana39(2),55(4),78(4),79(1),82 (4), 83(1),86(2),97(4),112(2)-11answers114866MaheshRewari,91298(3),36(3),YadavHaryana39(2),55(4),78(4),79(1),82 (4), 83(1),

86(2),97(4),112(2)-11answers109090VandanaGurgaon,92288(3),36(3),Haryana39(2),55(4),78(4),79(1),82 (4), 83(1),86(2),97(4),112(2)-11answers107914ManojDelhi103178(3),36(3),Choudha39(2),55(4),ry78(4),79(1),82 (4), 83(1),86(2),97(4),112(2)-11answers

7.2.8 It has been noticed that there is relationship betweenthe same questions in the different series. The findings aretabulated below:

Sl. No. of the same questions in various series

ABCDRemarks2114(-7)46(+25)31(+10)Allthequestionsare2619(-7)51(+25)36(+10)samebearingdifferent serial2922(-7)54(+25)39(+10)numberdepending3326(-7)58(+25)43(+10)upon the seriesofthetest4538(-7)10(+25)55(+10)booklet.Theserial numbers5851(-7)23(+25)8(+10)shownare7262(-10)102(+30)82(+10)mathematicallyrelated.7363(-10)103(+30)83(+10)8272(-10)112(+30)92(+10)

*Deduct 60 if total exceeds 60

It is evident from the table that all the test booklet series aremathematically related and answers in different series caneasily be computed with single key.

7.2.9. On the basis of the above relationship comparison ofthe options of the same wrong questions among differentseries was carried out and the same tabulated below:

Sl. No. of the same questions in various seriesABCDRemarks21 (4)14(4)46(4)31(4)Thenumberwithinthe26(3)19(3)51(3)36(3)bracketshows the sl.29(2)22(2)54(2)39(2)No.oftheoption33(3)26(3)58(3)43(3)markedbythe45(4)38(4)10(4)55(4)candidate.Allthese58(3)51(3)23(3)8(3)candidateshave marked72(4)62(4)102(4)82(4)sameoption73(1)63(1)103(1)83(10)forthesequestions82(3)72(3)112(3)92(3)irrespectiveof their series87(4)77(4)117(4)97(4)for which theanswersareMs. MonaMs.JyotiSh.ManuSh.Manojwrong.TanejaYadavYadavChoudhary

The table shows that the candidates belonging to Haryanastate or studied there or have scored higher marks in writtenexam have marked same options for the 10 wrong questions

irrespective of the series.Thus it can be inferred thatpredetermined candidates were supplied with answer keysduring or prior to the examination resulting in same optionsfor wrong answers.Such type of similarity while markingone of the option out of four is abnormal which cannot takeplace without outside help during or prior to examination.

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“8.2.1 On examination of the test booklets series A, B, &D provided by the HR, following is observed:

a.No column was provided for mentioning the Roll No.hence; there exist possibility to exchange the test booklets forcopying and also providing the answers from outside.

b.Test Date and Post code was not mentioned.c.There was no instruction on wrong answer or negativemarking.

d.Instruction for use of mobiles/calculators or electronicgadgets is not mentioned in the test booklet.

e.No instructions were given in the booklet for filling upthe OMR sheets.

f.TheusedtestbookletsweresoughtfromHRdirectorate but the concerned officials have no clue whetherthe test booklet are given to the candidates after completionof written examination or still available with the recruitingagency.This confirms that Directorate of HR did not paymuch needed attention to the recruitment process.8.2.2 The pattern of the question paper for IT discipline iskept at par with non technical disciplines i.e 50% questionsfromtheITdisciplineand50%fromGeneralKnowledge/Aptitude/Reasoning/English etc. Whereas in the

other technical disciplines 70% of the questions were fromtechnical side and 30% questions were from GeneralKnowledge/Aptitude/Reasoning/English etc.The treatmentof IT as non technical discipline is not justified and itappears that no thgout was given for deciding pattern ofquestion paper for this highly technical discipline.

8.2.3. The questions asked in the written test were randomlychecked and following has been noticed:

8.2.3.1Amonggeneralquestionstwonumbersofquestions were found wrong. (Q. No.2 & 21 in series ‘A’, Q.No.55 & 14 in series ‘B’, Q. No.27 & 46 in series ‘C’ and Q.No.12 & 31 in series ‘D’) as there is no correct answer infirst question and in the second question the question askeditself is wrong.

8.2.3.2On perusal of the answer keys submitted by theagency to Dte. Of HR in sealed cover, it is seen that same isnot certified or countersigned by the authorized signatory.

8.2.3.3It has also been observed from the answer keysthat no correct answer is given against one question i.eBooklet Series A-Q No.14, B-Q. No.7, C-Q.NO.39 & D-Q.No.24. However it is found that the agency has evaluated theOMR sheets by taking option 3 as correct answer for thisquestion.This shows that the agency’s casual approachduring evaluation.

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“Conclusion

From the observations made through stage wise analysisbrought out in previous sections, following conclusions canbe made:

9.1The recruitment process has been manipulated tofavour set of candidates belonging to Delhi regionespecially Haryana state or those candidates who haveobtained their qualifying degree from this state. The higherwritten marks of these candidates with their poor credentialsdo not match with the average marks obtained by all Indiacandidates with better credentials.Further it has beennoticed that large percentage of their options of wrongquestions matches with each other which is abnormal whilemarking one out of four options. Thus it can be concludedthat their results were predetermined by one of the followingpossible manipulation:

9.1.1 These candidates might have been supplied with theanswer keys prior to/during the examination.

9.1.2 The OMR sheets were left blank by the candidates andthe same were filled up later o before declaration of resultsand these concocted answer sheets (OMR) were submitted toAAI to support the predetermined result of the writtenexamination.

9.2The agency for conducting the written exam was hiredby falsification of the facts, eliminating competition andwithout verifying the credentials.Further the agency wasgiven free hand in the conduct of the examination and noproper checks and balances were put in place, thereforeinvolvementoftheconcernedHRofficialsinthemanipulation cannot be ruled out.

9.3The integrity of the results provided by the agency isalso doubtful in view of the wrong questions in the testbooklets and discrepancies in the answer keys like noanswers for one question and error in marks obtained by oneof the candidatei.e Ms. Mona Taneja.

9.4The recruitment agency M/s CPR does not falls underthe purview of the Corporate Vigilance department, thereforedetailed investigation of this case could not be carried out.However, detailed investigation on irregularities in theappointment of the agency may be ordered for fixingresponsibility of the concerned HR officials.”

37.It is seen from the above that although AAI had, in the showcause notice, called upon the petitioner to respond to the allegationregarding manipulation of the recruitment process to favour set ofcandidates belonging to the Delhi Region; it had not specificallyindicated the analysis and the findings on which such conclusion wasdrawn. The petitioner was only informed that set of candidates of theDelhi Region, who either belonged to Haryana or had studied there,had scored 20% higher marks in the written examination. Thus, thepetitioner had no opportunity to deal with the findings as reported inthe investigation report.

38.The conclusions expressed in the aforementioned investigationreport are, undoubtedly, serious. The allegation that the petitioner hasbeen party to manipulation of marks awarded to certain candidatesor had been negligent has adverse consequences on the petitioner. It ispossible – as is contended on behalf of the petitioner – that the same,effectively, disables the petitioner to bid for performing such work forother organizations. Thus, it is imperative that it be concluded withsome degree of certainty that the petitioner is guilty of the allegationsleveled against it.

39.Admittedly, the principal allegation made against the petitioneris founded on the investigation report. However, careful reading ofthe aforesaid report does indicate aspects that would require furtherclarification and deliberation before any person can be held guilty ofthe allegations as indicated in the conclusions expressed in the saidreport.

40.It is alleged that disproportionate number of candidates fromthe Delhi Region had been selected on account of the marks obtainedby them in the written examination. However, paragraph 6.2.8 of theinvestigation report does not establish the same. It indicates that about36.68% (8438 candidates from total of 23061 candidates) of theapplicants were from Delhi. But larger proportion of the candidatesfrom Delhi appeared for the examination. Approximately 44% of thetotal candidates that appeared in the written examination were fromDelhi Region. The show-cause notices issued to the petitioner do notallege any role of the petitioner in this regard. Approximately 69.6%of the Candidates that were called for the interview were from DelhiRegion. This does support the view that candidates from Delhi Regionhad performed better on an average, in the written examination, thancandidates from other parts of the country. However, it is material tonote that 90% of the candidates finally selected, after the interview,were from the Delhi Region. This could lead one to believe that thecandidates from Delhi Region also performed better in the interviews.It is also possible that although the candidates from the Delhi regiondid not perform as well in the interview in comparison to candidates

from rest of the country, the proportion of the candidates from theDelhi Region increased due to large gap in their average marksobtained in the written examination. The investigation report does notindicate any detailed analysis in this regard.

41.Secondly, it is alleged that some candidates were supplied theanswer keys and they had deliberately answered the same set of tenquestions incorrectly so as to avoid detection (paragraph 7.2.4 of theinvestigation report). The tabular statement indicating the analysis toarrive at the said conclusion is, clearly, not sufficient to support thesaid conclusion. First of all, the sample size is only four candidatesand one of them was not successful in being selected. This is clearlyan insufficient sample to arrive at the sweeping conclusion. Secondly– and more importantly – the analysis does indicate that fourcandidates had answered the same ten questions incorrectly; but thoseten questions are not the only questions incorrectly answered by them.One candidate (Ms Mona Taneja) had answered seventeen questionsincorrectly; the second (Mr Vineet Asiwal) had answered 32 questionsincorrectly; the third (Mr Sumit) – who was unsuccessful – hadanswered twenty four questions incorrectly; and the fourth (MrSandeep Chaurasia) had answered twenty questions incorrectly. Theconclusion that the all of these candidates knew the question paper inadvance and had deliberately answered the same ten questionsincorrectly is, to be most charitable, wildly speculative.

42.It is not necessary for this court to examine the investigationreport in any further detail, as it would be apposite for the concerned

authorities to take view after the petitioner has had an opportunity torespond to the same.

43.It was contended by Mr K.K. Rai, senior counsel appearing forthe respondent, that the investigation report need not be examinedafresh as Coordinate Bench of this Court, as well as the DivisionBench of this Court, had examined and upheld the same in petitionsand appeals filed by successful candidates. This contention isunpersuasive, essentially, for two reasons. First, that the petitioner wasnot party to those petitions/appeals. And second, the scope ofcontroversyinthosepetitionswasmateriallydifferent.Theinvestigation report has, undeniably, cast doubt as to the results ofthe examination. Clearly, in cases where the employer has justifiabledoubt as to the selection process, its decision to ignore the results andundertake fresh process cannot be questioned. In this case, personsfrom Delhi Region had fared better than the candidates from rest ofthe country not only in the written examination but, as noticed above,possibly in the interview as well. The investigation report provided theCompetent Authority reasons not to trust the results of the selectionprocess. This is materially different from concluding that the petitionerwas involved in leakage of question papers and manipulation ofmarks. punitive measure of blacklisting cannot be taken against aperson because there is doubt as to his conduct. The authorityimposing such punishment must be reasonably certain, after takinginto account all relevant facts, that the concerned person/entity hasbeen errant and his/its conduct warrants imposition of the punishment.44.Mr Rai relied upon the decision of the Supreme Court in M/s.Erusian Equipment & Chemicals Ltd. v. State of West Bengal andAnr.: (1975) 1 SCC 70 and Grosons Pharmaceuticals (P) Ltd. andAnr. v. State of U.P. and Ors.: (2001) 8 SCC 604 in support of hiscontention that AAI was not required to supply copy of theinvestigation report or any other material considered by the AAI toblacklist the petitioner. He submitted that the only requirement to becomplied before awarding the punishment of blacklisting was toafford the petitioner an opportunity to be heard. He earnestlycontended that the principles of natural justice did not require that theinvestigation report be furnished to the petitioner. The said contentionis unpersuasive. It is well settled that there is no straightjacket formulawhen it comes to applying the principles of natural justice. Therequirements of principles of natural justice are moulded by the factsand circumstances surrounding each case. It is imperative that aperson who is visited with any punishment has fair opportunity tocontest the allegations levelled against him, so as to persuade theconcerned authority not to impose the punishment proposed. This isthe principle that must guide the authorities for evolving fairprocedure.In the present case, AAI had not relied on any othermaterial other than the investigation report including the conclusionsdrawn therein, to level the allegations as made in the show causenotices. In the facts of this case, it was apposite for AAI to haveshared the report with the petitioner in order to afford the petitioner afair opportunity to meet the allegations. Since the allegation was

solely based on empirical data, the petitioner ought to have been givenan opportunity to explain the same.

45.It is noted that considerable period has elapsed since the FIRwas filed, however as of yet, no charges have been framed against thepetitioner. In the meantime, the petitioner has suffered the stigma ofbeing an alleged manipulator without having any real opportunity tocontest the analysis or material on the basis of which such allegationsare founded.

46.It is seen that several other irregularities have also been pointedout in the show cause notice. The petitioner had responded to thesame, however, the petitioner’s response has been rejected withoutindicating any reason but by merely stating that the same isunsatisfactory. In M/s Deccan Mechanical and Chemical IndustriesPvt. Ltd. & Anr. V. NTPC Ltd. & Anr.: W.P.(C) 93/2014, decided on15.01.2014, Coordinate Bench of this Court had held such an orderto be an unreasoned one. The Courts have observed in variousdecisions that blacklisting has serious adverse consequences on theperson blacklisted. It is, thus, imperative that such punishment isimposed only in cases where it is warranted. Such decision must beinformed by reason.

47.In this view, it would be necessary for the authority to indicate,however brief, the reasons for rejecting the explanations with regard tothe irregularities as alleged. Merely stating that the explanations werenot satisfactory would not qualify the test of reasoned order.

48.Given the aforesaid circumstances, this Court is of the view thatit would be apposite that the petitioner be afforded an opportunity torespond to the investigation report and furnish its explanation.

49.In the aforesaid view, the impugned order is set aside and thematter is remanded to the concerned authority of AAI to decide afreshafter affording the petitioner an opportunity of being heard. Thepetitioner is at liberty to submit response/explanation in respect ofthe allegations made and the investigation report within period offour weeks from, today.

50.The petition is allowed in the aforesaid terms. The pendingapplication is also disposed of.

JULY 29, 2019RK

VIBHU BAKHRU, J