U.P. JAL NIGAM & ORS. versus AJIT SINGH PATEL & ORS.

[2018] 13 S.C.R. 804

[2018] 13 S.C.R.

U.P. JAL NIGAM & ORS.

AJIT SINGH PATEL & ORS.

(Civil Appeal Nos. 11017-11018 of 2018)

NOVEMBER 15, 2018

[KURIAN JOSEPH AND A. M. KHANWILKAR, JJ.]

Constitution of India:

Art. 136 – Special Leave Petition – Maintainability of – OrderC(dated 11.8.2017) of competent authority of appellant, declaringappointment of 122 candidates as void ab initio – Challenged in writpetition – High Court by order dated 28.11.2017 set aside the orderdated 11.8.2017 holding that the authority failed to record thefoundational fact that it was not possible to distinguish tainted anduntainted cases; that there was possibility of all the candidatesDgetting benefit of irregularities and that termination of appointmentswas without giving any opportunity of hearing to the concernedappointees – In appeal to Supreme Court, by order dated 16.3.2018liberty was granted to the appellants to approach the High Courtfor an order to re-work the answer-sheets on the basis of theEcorrections – Pursuant to the liberty granted, appellants filed ReviewPetition before High Court – Review Petition was disposed of byorder dated 25.7.2018 granting liberty to the appellants to segregatetainted and untainted candidates – Appeal against the orders ofHigh Court dated 28.11.2017 and 25.7.2018 – Plea againstmaintainability of the appeal – Held: Appeal against order datedF28.11.2017 was not permissible as the judgment when challengedon earlier occasion, therein Supreme Court had not granted anyliberty to challenge that judgment of the High Court afresh –Supreme Court had also not granted liberty to the appellants tochallenge the conclusion of High Court in the review application –GAppellants must in the first place act upon the decision dated28.11.2017 by passing fresh reasoned order taking into accountprevious inquiry reports and other relevant material – Therefore,challenge to the impugned judgments dated 28.11.2017 and25.7.2018 must fail.

Disposing of the appeals, the Court

HELD: 1. Upon reading the order dated 16[th] March, 2018and/or along with the order dated 20[th] August, 2018, passed bySupreme Court, it is amply clear that the liberty granted to theappellants was very limited. It posits that no other contentionwas kept open or could be raised in the review application or inany subsequent proceedings before this Court. As no liberty hadbeen granted to the appellants to challenge the judgment of theHigh Court dated 28[th] November, 2017 afresh, it would meanthat the appellants can pursue the Special Leave petition onlyagainst the decision of the High Court in review application, whichthe High Court had rejected for the reasons recorded in its orderdated 25[th] July, 2018. In absence of such liberty to the appellants,filing of fresh special leave petition against the self-same judgmentis not permissible. [Para 10][818-C-E]

Vinod Kapoor v. State of Goa and Others (2012) 12SCC 378 : [2012] 8 SCR 1089; Kumaran Silks Trade(P) Ltd.. (2) v. Devendra and Others (2006) 8 SCC 555: [2006] 7 Suppl. SCR 670; Sandhya EducationalSociety and Another v. Union of India and Others(2014) 7 SCC 701 – relied on.

2. The judgment of the High Court in review application isa benign one and is certainly not more adverse to the appellants.For, the High Court has restated the dictum in its judgment dated28[th] November, 2017 - that it would be open to the appellants toseparate the tainted candidates from the untainted ones and topass fresh, reasoned order after providing opportunity to theaffected candidates. The High Court has also clarified that theorder passed by the Chief Engineer dated 11[th] August, 2017 hasbeen quashed on the sole ground that it was hit by principles ofnatural justice, having been passed without issuing notice andaffording opportunity of hearing to the concerned candidates andalso because the said order does not refer to the fact that anexercise was already undertaken by the appellants to distinguishthe case of tainted and untainted candidates and arrived at theconclusion that it was not possible to do so, before issuing theimpugned order dated 11[th] August, 2017. [Para 11][818-F-H;819-A]

A3. The opinions given by the experts (Indian Institute ofInformation Technology, Allahabad and Indian Institute ofTechnology, Kanpur) which was relied on by the appellants, werecertainly not available to the appropriate authority before the orderwas passed on 11[th] August, 2017. Indeed, the appropriate authoritytook into account two inquiry reports but the same did not evinceBthat an exercise had already been undertaken to distinguish thetainted and untainted candidates or that it was not possible to doso, so as to uphold the decision of declaring the entire selectionprocess as void. Had the appropriate authority done that exerciseand recorded its satisfaction in that behalf, to be reflected in theCorder passed by the Chief Engineer on 11[th] August, 2017, theHigh Court could have then followed the settled legal positionthat the nature and extent of illegalities and irregularitiescommitted in conducting selection will have to be scrutinizedin each case so as to come to conclusion about the future courseof action to be adopted in the matter. [Para 12][819-B-E]DUnion of India and Others v. O. Chakradhar (2002) 3SCC 146 : [2002] 1 SCR 1091 – referred to.

4. Further, if the mischief played is so widespread and all-pervasive, affecting the result so as to make it difficult to pickEout the persons who have been unlawfully benefited or wrongfullydeprived of their selection, in such cases, it will neither be possiblenor necessary to issue individual show-cause notices to eachselectee. In that case, the only option would be to cancel thewhole selection process and not limiting to one section ofappointees. [Para 12][819-E-F]F

Veerendra Kumar Gautam and Others v. Karuna NidhanUpadhyay and Others (2016) 14 SCC 18; Joginder Paland Others v. State of Punjab and Others (2014) 6 SCC644 : [2014] 6 SCR 383; Vikas Pratap Singh and Othersv. State of Chhattisgarh and Others (2013) 14 SCC 494 :G[2013] 10 SCR 1114 – relied on.

Union of India and Others v. O. Chakradhar (2002) 3SCC 146 : [2002] 1 SCR 1091 – distinguished.

5. While disposing of the Special Leave Petition filed bythe appellants on the earlier occasion vide order dated 16[th] March,2018, this Court has neither disturbed the conclusion reachedby the High Court in its order dated 28[th] November, 2017 norgranted liberty to the appellants to challenge the said conclusionin the review application or for that matter, by way of freshSpecial Leave Petition. The limited plea taken before this Courtwas to allow the appellants to re-work the question and answersheets and revise the merit list and issue fresh, reasoned orderafter providing opportunity of hearing to the affected candidates.That option has been kept open. It is for the appellants to pursuethe same. In other words, the appellants must, in the first place,act upon the decision of the High Court dated 28[th] November,2017 whereby the order passed by the Chief Engineer dated 11[th]August, 2017 has been quashed and set aside. The appellantsmay then proceed in the matter in accordance with law by passinga fresh, reasoned order. Indeed, while doing so, the appellantsmay take into consideration the previous inquiry reports as alsoall other relevant material/documents which have becomeavailable to them. [Paras 13 and 14][820-A-B; D-F]

6. Therefore, the challenge to the impugned judgmentdated 28[th] November, 2017 and 25[th] July, 2018 must fail but witha clarification that the competent authority of the appellant is freeto pass fresh, reasoned order in accordance with law.[Para 15][820-G]

P.R. Deshpande v. Maruti Balaram Haibatti (1998) 6SCC 507 : [1998] 3 SCR 1079 – referred to.

Case Law Reference

A[2014] 6 SCR 383relied onPara 12[2013] 10 SCR 1114relied onPara 12

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 11017-11018 of 2018.

BFrom the Judgment and Order dated 28.11.2017 of the High Courtof Judicature at Allahabad in Writ-A No. 37143 of 2017 and judgmentand order dated 25.07.2018 in Review Application No. 2 of 2018.

Vikas Singh, Mukul Rohatgi, Sr. Advs., Ms. Vanshaja Shukla,Rishab Kapoor, M. Nizamuddin Pasha, Ms. Ranjeeta Rohatgi, Mrs.CPragya Baghel, Gaurav Mehrotra, Vikrant Yadav, Talha Abdul Rahman,Ms. Neha Meena, Kumar Anurag Singh, Mohd. Atif, Ms. TulikaMukherjee, Devesh Malan, Abhishek, Advs. for the appearing parties.

The Judgment of the Court was delivered by

A.M. KHANWILKAR, J. 1. Delay condoned. Leave granted.D

2. These appeals take exception to the judgment and order dated28[th] November, 2017 in Writ-A No.37143/2017 and 25[th] July, 2018 inReview Application No.2/2018 passed by the High Court of Judicatureat Allahabad. The said writ petition was filed by the respondent Nos.1 to11 herein to challenge the order dated 11[th] August, 2017 passed by theEChief Engineer/Adhisthan-2-1, U.P. Jal Nigam (for short “Nigam”). Thesaid decision of the Chief Engineer was preceded by decision of theBoard of Directors of Nigam taken in its 166[th] meeting held on 26[th] July,2017. It was found that the appointments made to 113 posts of AssistantEngineer (Civil), 5 posts of Assistant Engineer (Electrical/Mechanical)Fand 4 posts of Assistant Engineer (Computer Science/Electronics andCommunication/Electrical and Electronics) pursuant to notification dated19[th] November, 2016, were void ab initio.3. The High Court vide impugned common judgment and orderdated 28[th] November, 2017 allowed the said writ petition and connectedGmatters, essentially, being of the view that the order passed by the ChiefEngineer dated 11[th] August, 2017, was in breach of principles of naturaljustice. The High Court also opined that the said order of the ChiefEngineer declaring the appointments of 122 candidates as void ab initio,had failed to record the foundational fact that it was not possible todistinguish tainted and untainted case(s) and that there was possibility ofH

all of them getting the benefit of the irregularities committed in theselection process; and yet hastened to terminate the appointments of allthe 122 candidates by one order, that too, without giving notice andopportunity of hearing to the concerned appointees. As regards theirregularities committed in the subject selection process as noted in theorder dated 11[th] August, 2017, the High Court held that individual noticeto the concerned appointee was indispensable.

4. Being aggrieved, the appellants filed Special Leave Petition(Civil) Nos.5410-5419 of 2018 before this Court. The same was disposedof vide order dated 16[th] March, 2018, in the following terms:

“ORDER

Mr. Rakesh Dwivedi, learned senior counsel appearingfor the petitioners, points out that the petitioners havingfound out that there were defective questions and incorrectanswer keys, the High Court should have permitted thepetitioners to re-work the merit list. He submitted that theHigh Court has gone wrong in insisting for an individualnotice in the factual matrix of this case. In this regard hehas also placed reliance on judgment of this Court in VikasPratap Singh and Othersv. State of Chhattisgarh and Others,reported in (2013) 14 SCC 494.

Mr. Mukul Rohatgi, learned senior counsel appearing for therespondent(s), however, points out that whether the questions weredefective or key answers were incorrect are disputed questionsand, therefore, liberty should be granted to the respondents toparticipate in the inquiry. He further submits that the decision ofthis Court referred to by the learned senior counsel for thepetitioners may not apply to the facts of this case.

Be that as it may, having gone through the impugned judgment,we do not find that the door is yet closed. It is for the petitioners,if they are so advised, to approach the High Court itself for aliberty to re-work the answer sheets on the basis of the corrections,in case the High Court is also of the view that the correctionsneed to be made.

The special leave petitions are, accordingly, disposed of.Pending application(s), if any, shall stand disposed of.”

(emphasis supplied)

5. Pursuant to the liberty granted to the appellants, reviewapplication came to be filed before the High Court being Civil Misc.Review Application No.2 of 2018. The appellants raised the followinggrounds in the said review application:

“GROUNDS

(I) Because this Hon’ble Court while deciding the matter has notconsidered the fact that there is malpractice in the selection,however, on the technical ground that opportunity of hearing wasdone, therefore, order of selection was set aside and they weredirected to reinstate and be paid salary subject to the liberty givento the Authority to pass fresh order.

(II) Because this Hon’ble Court has not considered the fact thatagainst 113 posts once candidates have called for interview andthey were not even eligible for interview and finally out of 113posts 26 candidates are not even qualifying for interview, therefore,they have wrongly been called for interview.

(III) Because this Hon’ble Court has also not considered the factthat out of 5 posts of Assistant Engineer (Electrical/Mechanical),6 new candidates are being found eligible and 4 candidates whohave earlier found eligible for interview are not found eligible forinterview and 2 candidates out of 5 candidates who have finallyselected are not found eligible even for interview, therefore, theycannot be even considered for interview.

(IV) Because this Hon’ble Court has further not considered thefact that for appointment on the post of Assistant Engineer(Computer) 8 candidates who were being found eligible forinterview are not found eligible for interview and 3 candidates outof 4 candidates who are selected even they are not eligible forinterview, therefore, whole selection process is bad.

(V) Because this Hon’ble Court while passing the order hasdirected for reinstatement and consequently the persons who arenot eligible for interview they have been permitted to allow forinterview.

(VI) Because the matter has gone before the Hon’ble Apex Courtand the Hon’ble Apex Court in Special Leave to Appeal (C) No.(s) 5410-5419/2018 has directed the present Respondents

[A. M. KHANWILKAR, J.]

(Petitioner in SLP) may approach before the High Court, Allahabadso that proper direction may be given by the Court.

(VII) Because while this Hon’ble Court deciding the matter hasheld that reservation is not applicable against the temporary post,it is not sustainable in the eye of law, as reservation is applicablefor both on temporary appointment or on permanent appointment.

(VIII) Because this Hon’ble Court while allowing the writ petitionhas further directed to reinstate and make payment of salary, whichamount to allowing the persons who are not even qualified forinterview, therefore, passing the order for reinstating them andalso be paid salary to them is not permissible under law.

(IX) Because whole appointments are temporary against thetemporary Posts, therefore, the Authorities have right to pass order,if they are not to continue with the Employees.

(X) Because the selection was cancelled on the ground ofmalpractice, as whole appointment was made in haste, withoutproper calculation and checking of marks, without publishinganswer key as required and also there is some other allegationsfor which STF is already making enquiry.”

6. The High Court disposed of the review application on 25[th] July,2018 in the following terms:

“The Managing Director, U.P. Jal Nigam, Lucknow and the ChiefEngineer, U.P. Jal Nigam, Lucknow have both filed an applicationfor the review of the judgment and order dated 28.11.2017 bywhich bunch of these writ petitions were finally decided.

The submission of learned Advocate General of State ofU.P. is that the applicants be granted liberty to segregatetainted and untainted candidates in passing fresh orderfor which liberty has been given.

The order impugned in the writ petitions was of 11.08.2017 passedby the Chief Engineer, Jal Nigam which cancels the entireselection.

In allowing the petition, we have held that the order impugned inthe writ petition has been passed in violation of principles of naturaljustice and that the selection as whole was not liable to be

cancelled without undertaking any exercise to separate the taintedcandidates from the untainted one’s. The court in the end whileallowing the writ petitions had permitted the applicants to pass afresh reasoned order after providing opportunity of hearing to thepetitioners and the other affected parties keeping in view theobservations made in the judgment.

The applicants till date have not passed any fresh order.

In passing the fresh order they may consider each and everyaspect of the matter and they do not require any permission of thecourt for the manner in which they would pass the fresh order.

In view of above, we do not consider that any liberty for theabove purpose is needed from the court.

We do not find any apparent error in the judgment and order whichis sought to be reviewed.

The Review Application stands disposed of.”

(emphasis supplied)

7. In the present appeals, the appellants have assailed theaforementioned judgment and order passed by the High Court in thereview application as also the main judgment and order passed in theEwrit petition, which was the subject matter of challenge in Special LeavePetition (Civil) Nos.5410-5419 of 2018. These appeals have been filed

by the appellants despite the undertaking given by them before the HighCourt on 19[th] April, 2018 that the direction given in the order of the HighCourt dated 28[th] November, 2017 would be complied with on or before15[th] May, 2018.

8. The respondents have raised preliminary objections regardingthe maintainability of these Special Leave Petitions. First, because theimpugned judgment and order was already challenged by the appellantsin Special Leave Petition (Civil) Nos.5410-5419 of 2018. The said SLPswere disposed of on 16[th] March, 2018 without any liberty to the appellantsGto challenge the impugned judgment dated 28[th] November, 2017 afresh.The appellants cannot be permitted to challenge the self-same judgmentby filing successive petitions. If this objection is upheld, contends learnedcounsel for the respondents, the present appeals can be pursued by theappellants, at best, only in respect of the judgment and order passed on

the review application. In that case, however, the Special Leave Petitionsolely against the judgment passed on review application would not bemaintainable, in view of the dictum in Sandhya Educational Societyand Another Vs. Union of India and Others[1]. The respondents wouldthen contend that the appellants cannot be permitted to resile from theundertaking given to the High Court, especially when the appellant(s) isa State within the meaning of Article 12 of the Constitution ofIndia.Relying upon the order passed by this Court on 16[th] March, 2018in Special Leave Petition (Civil) Nos.5410-5419 of 2018 and the impugnedjudgment passed in review application including the order passed by thisCourt on 20[th] August, 2018 in the present Special Leave Petitions, therespondents would then contend that the appellants cannot be permittedto raise any other ground except the contention that the appellants oughtto be permitted to revise the merit list by segregating the tainted anduntainted candidates with liberty to pass fresh order. In other words,the appellants cannot be permitted to urge any other argument in supportof the order dated 11[th] August, 2017 passed by the Chief Engineer. For,that order has already been quashed and set aside for the reasonsrecorded in the judgment whilst allowing the writ petition filed by therespondents and which reasons commended to this Court vide orderdated 16[th] March, 2018.9. The appellants, however, urge that the disposal of Special LeavePetitions by this Court on 16[th] March, 2018 will not come in the way ofthe appellants to challenge the common judgment and order of the HighCourt dated 28[th] November, 2017 passed in Writ Petition-A No.37143 of2017. Inasmuch as there is clear indication in the order dated 16[th] March,2018 that this Court had not dismissed the special leave petitions; butacceded to the argument of the appellants and gave liberty to theappellants to approach the High Court to re-work the answer sheets onthe basis of corrections. It is urged that the technicalities should notcome in the way of the appellants to persuade this Court to uphold andrestore the order dated 11[th] August, 2017 passed by the Chief Engineer,as the entire selection process was replete with irregularities and fraud,for which even criminal action has been initiated against the then Chairmanand other officials including the persons who were authorisedrepresentatives of the agency which had conducted the onlineexamination, by filing an F.I.R. for offences punishable under Sections

A409, 420, 120-B/201 of I.P.C. and 13(1)(d) of the Prevention of CorruptionAct, 1988. The counsel for the appellants stated that the appellants arein the process of terminating the appointments of all other candidatesappointed under the same selection process who are presently workingwith the appellants. That has become necessary in view of the informedopinion given by the experts of Indian Institute of Information Technology,BAllahabad, that identification and segregation of tainted and untaintedcandidates is not possible. The said experts, on examination of the filesand CDs, have reached at the following conclusions, as recorded in thecommunication addressed to the appellants dated 11[th] September, 2018:

“Conclusions:C

I. To identify “tainted” candidates essentially implies identifyingthose candidates, whose response data may have been modifiedafter the end of the computer-based exam. To perform thisassessment, the original response data of the candidates (capturedimmediately at the closure of the examination window) along withDrelevant checksum information is required.This reference(checksum) information, as per observation 1 above, was neitherrecorded by the service provider nor communicated to UPJN.Therefore, identification and segregation of tainted and non-taintedcandidates is not possible.

II. In the absence of information (as per observation 1) and bynoting observations 3-4, the authenticity of the data as and in theform provided (observations 5-6) cannot be accepted and/orverified.

III. The veracity of the entire process is also doubtful in view ofobservations 7-10.

IV. Considering observation 8 above, it stands to reason that thecandidate response files, as submitted by the service provider werecreated, rather hurriedly and certainly not as expected. In theabsence of any validating information, there is every possibilitythat these candidate response files (provided on the CDs) mighthave been doctored.

Final notes:

All the above observations are based on the implicit condition thatall the documents and data shared with the undersigned have

verified provenance, and responses provided by the personnel madeavailable for interaction with the undersigned on 9[th] and 10[th]September, 2018 at the UPJN head office in Lucknow, are true.

Additionally – This report uses two technical terms which arebeing explained below for your convenience.

• Checksum: small block of digital data generated by achecksum algorithm such as MD5 (Message Digest 5), SHA-1 (Secure Hash 1), SHA-2, etc. when it operates on givensource data (file). This small block of digital data generatedis like digital fingerprint and is unique to the file it wasgenerated for. In the event that the source file changes or ismodifiedin anyform, its checksum will change.

• HTML: Hyper Text Markup Language is the basic computerlanguage, used to create web pages.

I hope that this report, answers the two queries raised in yourletter 104/CE (E-2-1) Camp/18 dated 31.8.2018 to yoursatisfaction.”

Reliance is also placed on the opinion given by the Associate Professor,Computer Science and Engineering, Indian Institute of Technology, Kanpurdated 15[th] September, 2018, which reads thus:

“After going through the pertinent agreements between the UttarPradesh Jal Nigam and M/s Aptech Limited and relevantdocuments, I have the following observations to humbly present.

brief chronology of the events is as follows:

(i) The examination was conducted on December 16, 2016.

(ii) After short listing candidates based on the exam conductedon December 16, 2016, the interviews of the short listedcandidates were held between 30[th] Dec. and 31[st] Dec. 2016.

(iii) The final result was declared on January 3, 2017.

(iv) On February 27, 2017, M/s Aptech Limited delivered theresult files on several CDs to U.P. Jal Nigam Limited.

Upon examining the contents of the files presented by M/s AptechLimited, it appears that the earliest modification date of any file on the

ACDs is much after December 16, 2016. In computer-based test, theresponse of the candidates is uploaded in the main server (in the presentcase the cloud server) immediately after the completion of the exam.Immediately after the examination is over, each candidate’s response issecured so that interpolation or manipulation is not possible after wards.In the present case, the submitted file was modified after 16[th] December,B2016 which raises strong doubt and it cannot be ruled out that responsesheets of candidates were not manipulated during this period. Under thepresent circumstance, it is not possible to independently confirm thatresponse sheets of candidates in the CDs made available are the sameas responses made by the candidates on the date of examination. ThereCis no file in the CDs provided by M/s Aptech Limited with the lastmodification date equal to the day of the examination. Since I have beeninformed that the primary data on the cloud server is no longer available,it is difficult for me to corroborate that the data provided on the CDs isan exact copy of the data available immediately upon the completion ofthe exam.D

No audit trail containing the individual mouse clicks and timestampsof the choices made by the students has been provided in the CDs. Suchan audit trail will make it easier to corroborate that the answers given bythe students in the examination is the same as the answer sheet thatthey were graded on later. Such an audit trail is helpful to settle anyEdiscrepancies and challenges that the exam candidates may later raise.Since M/s Aptech Limited has not provided such an audit trail, it is notpossible for me to corroborate and confirm that there are no discrepanciesbetween the student’s actual responses and those, which were used forgrading.FMoreover, I am informed that the standard procedures followedin public examinations like JEE (Mains). JEE (Advanced) and GATE,were not followed. It is customary practice in these exams to publishthe answer key to the exam, invite any objections or rebuttals from thecandidates, consolidate these responses, and subsequently, freeze theGanswer key. Grading of the answer sheets is done only after such anopportunity has been provided to the candidates. This common practicehas not been followed in the present case, which raises doubt as well asapprehension that the response sheets of individual candidates mighthave been compromised. The errors in answer keys of this particular

examination may have been reduced or eliminated all together, had suchan opportunity been given before the publication of the results of thecomputer-based test.

Considering the lack of primary data with M/s Aptech Limited, itis not possible to independently confirm the authenticity of the provideddata on the CD, and hence the segregation of tainted & untaintedcandidates is not possible.

This is with response to your letter No. 110/C.E. E-2-1 (camp)/2018, dated 04/09/2018"

The appellants have placed reliance on the decision in P.R. DeshpandeVs. Maruti Balaram Haibatti[2] to contend that despite the undertakinggiven to the High Court, it is open to pursue the legal remedy available tothe appellants under Article 136 of the Constitution of India.

10. We have heard the learned counsel for the parties, includingthe counsel for the applicants in intervention applications. We deem itapposite to first turn to the efficacy of the order of this Court dated 16[th]March, 2017. On fair reading of the said order passed by two-JudgeBench (to which one of us, Mr. Justice Kurian Joseph was party), thisCourt noted the limited grievance of the appellants that in the wake ofdefective questions and incorrect answers given, the High Court shouldhave permitted the appellants to revise the merit list. After noting thatposition, the Court granted liberty to the appellants to approach the HighCourt for that limited purpose. While doing so, no liberty was granted tothe appellants to challenge the impugned judgment dated 28[th] November,2017 afresh before this Court. No such liberty was sought at that time.This position is restated in the order dated 20[th] August, 2018 passed inthe present Special Leave Petitions, which reads thus:

The only liberty granted to the petitioners and as rightlyunderstood by the learned Advocate General appearing forthe State was to segregate the tainted from the untaintedas per Order dated 16.03.2018.

We direct the petitioners to file report, in sealed cover,within one month from today, as to what steps have been takenpursuant to the Judgment dated 28.11.2017 passed by the High

ACourt and the order dated 16.03.2018 by this Court in the SpecialLeave Petition.

List on 20.09.2018.

The petitioners may approach the High Court and seek forextension of time.”B

(emphasis supplied)

One of us (Mr. Justice Kurian Joseph) was party even to this order.Upon reading the order dated 16[th] March, 2018 and/or along with theorder dated 20[th] August, 2018, it is amply clear that the liberty granted toCthe appellants was very limited. It posits that no other contention waskept open or could be raised in the review application or in any subsequentproceedings before this Court. As no liberty had been granted to theappellants to challenge the judgment of the High Court dated 28[th]November, 2017 afresh, it would mean that the appellants can pursuethe Special Leave petition only against the decision of the High Court inDreview application, which the High Court had rejected for the reasonsrecorded in its order dated 25[th] July, 2018 (reproduced in paragraphNo.6 above). In absence of such liberty to the appellants, filing of freshspecial leave petition against the self-same judgment is not permissible.[See Vinod Kapoor Vs. State of Goa and Others[3], Kumaran SilksETrade (P) Ltd.. (2) Vs. Devendra and Others[4]and SandhyaEducational Society (supra).]

11. The respondents have relied upon the dictum in SandhyaEducational Society (supra), that Special Leave Petition only againstthe judgment in review application is not maintainable. Be that as itmay, the judgment of the High Court in review application is benignFone and is certainly not more adverse to the appellants. For, the HighCourt has restated the dictum in its judgment dated 28[th] November, 2017- that it would be open to the appellants to separate the tainted candidatesfrom the untainted ones and to pass fresh, reasoned order after providingopportunity to the affected candidates. The High Court has also clarifiedGthat the order passed by the Chief Engineer dated 11[th] August, 2017 hasbeen quashed on the sole ground that it was hit by principles of naturaljustice, having been passed without issuing notice and affordingopportunity of hearing to the concerned candidates and also because the

3 (2012) 12 SCC 378 (paras 9 to 12)4 (2006) 8 SCC 555 (paras 6, 8 & 9)H

said order does not refer to the fact that an exercise was alreadyundertaken by the appellants to distinguish the case of tainted anduntainted candidates and arrived at the conclusion that it was not possibleto do so, before issuing the impugned order dated 11[th] August, 2017.

12. The appellants have now relied upon the opinions given by theexperts (Indian Institute of Information Technology, Allahabad and IndianInstitute of Technology, Kanpur) as noted in the report submitted to thisCourt dated 20[th] August, 2018. The same were certainly not available tothe appropriate authority before the order was passed on 11[th] August,2017. Indeed, the appropriate authority took into account two inquiryreports but the same did not evince that an exercise had already beenundertaken to distinguish the tainted and untainted candidates or that itwas not possible to do so, so as to uphold the decision of declaring theentire selection process as void. Had the appropriate authority done thatexercise and recorded its satisfaction in that behalf, to be reflected inthe order passed by the Chief Engineer on 11[th] August, 2017, the HighCourt could have then followed the settled legal position expounded inUnion of India and Others Vs. O. Chakradhar[5] - that the nature andextent of illegalities and irregularities committed in conducting selectionwill have to be scrutinized in each case so as to come to conclusionabout the future course of action to be adopted in the matter. Further, ifthe mischief played is so widespread and all-pervasive, affecting theresult so as to make it difficult to pick out the persons who have beenunlawfully benefited or wrongfully deprived of their selection, in suchcases, it will neither be possible nor necessary to issue individual show-cause notices to each selectee. In that case, the only option would be tocancel the whole selection process and not limiting to one section ofappointees. This view has been restated in the recent decision inVeerendra Kumar Gautam and Others Vs. Karuna NidhanUpadhyay and Others[6], (also see Joginder Pal and Others Vs. Stateof Punjab and Others[7]). The dictum in the two judgments relied uponby the appellants of O. Chakradhar (supra) and Vikas Pratap Singhand Others Vs. State of Chhattisgarh and Others[8] will be of no availto the appellants in the fact situation of the present case.

5 (2002) 3 SCC 146 ( paras 7, 8 & 12)

6 (2016) 14 SCC 18 (paras 57 to 59 & 61)

7 (2014) 6 SCC 644 (paras 32 to 36 & 38 to 40)

8 (2013) 14 SCC 494

A13. Suffice it to observe that while disposing of the Special LeavePetition filed by the appellants on the earlier occasion vide order dated16[th] March, 2018, this Court has neither disturbed the conclusion reachedby the High Court in its order dated 28[th] November, 2017 nor grantedliberty to the appellants to challenge the said conclusion in the reviewapplication or for that matter, by way of fresh Special Leave Petition.BThe relevant conclusion of the High Court in its order dated 28[th]November, 2017, reads thus:

“In view of the above, we are of the considered opinion that theimpugned order dated 11.8.2017 has been passed in violation ofprinciples of natural justice without issuing notice and withoutCaffording opportunity of hearing to the petitioners, no exercisewas undertaken to distinguish the case of tainted and non-taintedcandidates to arrive at the conclusion while passing the impugnedorder as such the impugned order dated 11.8.2017 is not sustainableand is liable to be set aside.”D

14. The limited plea taken before this Court as noted in the firstparagraph of order dated 16[th] March, 2018 was to allow the appellantsto re-work the question and answer sheets and revise the merit list andissue fresh, reasoned order after providing opportunity of hearing to theaffected candidates. That option has been kept open. It is for theEappellants to pursue the same. In other words, the appellants must, inthe first place, act upon the decision of the High Court dated 28[th]November, 2017 whereby the order passed by the Chief Engineer dated11[th] August, 2017 has been quashed and set aside. The appellants maythen proceed in the matter in accordance with law by passing fresh,reasoned order. Indeed, while doing so, the appellants may take intoFconsideration the previous inquiry reports as also all other relevantmaterial/documents which have become available to them. We make itclear that we have not dilated on the efficacy of the opinion given by theexperts of “IIIT Allahabad and IIT Kanpur”.

15. In view of the above, the challenge to the impugned judgmentGdated 28[th] November, 2017 and 25[th] July, 2018 must fail but with aclarification that the competent authority of Nigam is free to pass afresh, reasoned order in accordance with law.

16. We may not be understood to have expressed any opinioneither way on the merits of the course of action open to the appellants

against the respondents including against the other appointees under thesame selection process. All questions in that behalf are left open.

17. The appeals along with all the interlocutory applications aredisposed of in the above terms. No order as to costs.

Kalpana K. Tripathy

Appeals disposed of.