Judgment & Order

Ashutosh Kumar, C.J.

1. We have heard Mr. R.K.D. Choudhury, learned Deputy Solicitor General of India for the petitioners and Mr. A. Ahmed, learned Advocate for the respondents.

2. The challenge in the present petitions is to the order dated 06.05.2019 passed by the Central Administrative Tribunal (hereinafter to be referred as ‘Tribunal’), Guwahati Bench, whereby the public examination held for the post of Mate (SSK) in the office of the HQ 137 Works Engineers, Dimapur, Nagaland has been cancelled and the authorities of the petitioners have been directed to hold examination afresh for such posts. The Tribunal has further recorded that if some candidates have been selected and posted pursuant to the afore-noted examination, they shall be allowed to continue till completion of the selection process, as directed, for filling up the advertised vacancies. It was made clear that in the fresh exercise for selection, the candidates would be served with due notice within a period of four months from the date of receipt of the copy of the order of the Tribunal.

3. The Directorate General (Pers.), Military Engineer Services, Ministry of Defence had issued an employment notice [EN No.34303/LRS/12-13/E1B (S)] inviting applications for various posts, including 87 posts of Mate (SSK) in HQ 137 Works Engineer, Dimapur (Nagaland). The last date of receipt of application was fixed on 3rd January, 2015 and the scheduled date for written examination was 14th February, 2015.

However, the date of the written examination was postponed to 10.05.2015. Later on, it was decided to hold the written examination on 11.05.2015 for the reason of prevailing volatile security situation in Nagaland. The examination was conducted without any objection from any one of the candidates. After the written examination, the results were declared and the successful candidates in order of merit were appointed. The merit list of the selected candidates had been prepared and finalized as per the standard operating procedure by a Board of Officers.

Be it also noted that evaluation of the answer sheets was carried out by a separate Board of Officers.

4. After uploading of the results on May 4, 2016, the respondents challenged the examination process on various grounds, including the change of the venue of written examination even though the advertisement clearly spelt out that the applicants had to indicate the area for which he had applied for and the applicant would be considered only for that particular area which he would apply for and that no change of centre of examination would be allowed under any circumstance; that the results were based only on written examination and not on further interview; the authorities not adopting the system of OMR answer sheets which is commonly used in competitive examination for posts under the Central Government or the State Government; the examination being held on two different dates and few questions of the examination held on both the dates tallied as also for the reason of some of the candidates having been issued admit cards for two Centres, which was impermissible as per the terms of the advertisement.

5. It would also be relevant in this context to state that the challenge to the holding of examination and the consequent preparation of merit list and posting of Mates (SSK), was made before the Tribunal without impleading the successful/selected candidates.

6. The Tribunal after taking note of all these objections raised by the failed candidates, found that few instances of double admit cards having been issued to some of the candidates, who had appeared in the examination at two Centres on two different dates, had compromised the purity of the entire examination system and the Tribunal thus set aside the result with a direction that a fresh selection process be initiated for those 87 posts.

7. Mr. R.K.D. Choudhury, learned Deputy Solicitor General of India while challenging the afore-noted order of the Tribunal submitted that the examination was held as per the standard operating procedure which was in sync with the advertisement. The venue was changed only because of the volatile situation at Dimapur in Nagaland which was never objected to by the candidates at any point of time. Because of the change of venue, the examination was held on two dates at two different centres but apparently it has caused prejudice to none.

8. Responding further to the grounds relied upon by the Tribunal in setting aside the entire selection process, Mr. Choudhury submitted that merely because the OMR system was not adopted, it could not be said that the examination process was faulty. There was no declaration in the advertisement that OMR sheets shall be used in the examination. The posts to be filled up were of Mate (SSK), wherein the candidates had to be evaluated on the basis of their knowledge of the matriculation standard. There was manual evaluation of answer scripts. In fact, it was submitted that the question paper was prepared by the College of Military Engineering, Pune and evaluation also, as noted above, was made by a separate Board. The allegation of the cyclostyled question and answer sheets being worn out and faded was factually disputed. With respect to two admit cards having been issued to few of the candidates for two Centres, the stand of the petitioners is that at the time of issuance of such admit cards, there was no way to cross-check as to how many centre/centres the applicants had applied for. However, such instances were very few. Only few questions in the two Centres on two different dates were similar and that was also for the reason of the question paper having been normalized for evaluating the applicants. The methodology of holding the examination was such that the question paper could have been shared to non-applicants. In fact, two examinations were held, one on 10.05.2015 and the other on 11.05.2015 at two distant places, where it was not possible for any candidate to appear at both the Centres.

9. That apart, Mr. Choudhury contends that even for those candidates who were issued two admit cards and who allegedly had come out successful, they were required to be impleaded in the proceeding before the Tribunal before any order could have been passed cancelling the examination and the result.

10. The respondents, however, have expostulated that the sanctity of the examination was seriously compromised as two admit cards had been issued to few of the candidates and there was no use of OMR Sheets. They also submitted that manual evaluation was a very crude way of conducting examination and it took very long for the results to be published, throwing the entire system under doubts.

11. After having heard the learned counsel for the parties and having gone through the records, we are of the opinion that the Tribunal was not justified in ordering the cancellation of the entire examination on the grounds so raised by the respondents; more so, in view of the nonimpleadment of the successful candidates.

12. That apart, more than 9(nine) years have passed since the successful candidates have been discharging their duties as Mates. Unsettling such employment at this stage would not be beneficial for the system or for anybody else.

13. The law with respect to cancellation of Public Examination is well settled. Cancellation of Public Examination is an extreme step which is resorted to only when the examination process is vitiated by mass malpractices, systemic fraud or illegality going to the roots of the selection process.

14. In Sachin Kumar & Ors. -vs- Delhi Subordinate Service Selection Board (DSSSB) & Ors. :: (2021) 4 SCC 631, the position in law with respect to a judicial decision holding an examination to have been vitiated has been laid down.

15. The Supreme Court, after evaluating a number of judgments postulated that essentially the answer to the issue turns upon whether the irregularity in the process have taken place at a systemic level so as to vitiate the sanctity of the process. In some cases, the authority conducting the examination might itself come to the conclusion that as a result of the subversion of the process for any supervening event or circumstances rendering the process to lose its legitimacy, there would be no option but to cancel the entire examination in its entirety. In this situation, there is no fact finding exercise into individual acts involving use of malpractices or unfair means. Such a situation would arise only when there is a systemic failure of the process where it would be difficult to segregate the tainted from the untainted participants in the process. The other situation would be where some of the participants in the process allege irregularities. In that case, it may well be possible to segregate those persons or candidates at a particular centre to be subjected to reexamination and excluding the others from the process. This serves the purpose of protecting the interest of the candidates who have done their part and should not be slapped with any price for the wrong doings of the others. Segregating the wrong doers and allowing the selection process to be continued and taken to its logical conclusion is an accepted principle of service jurisprudence, which stands on the bedrock principles enshrined under Articles 14 and 16 of the Constitution of India. Nonetheless, if there is evidence of systemic irregularities, the entire process becomes vitiated.

16. What the Supreme Court has emphasized is that whenever it is possible to segregate persons who have indulged in malpractices and the recruiting or examination taking body does not do so, then it would be unfair to the diligent applicants who ought not to be subjected to the consequences of cancellation of the entire process. This, in fact, would be contrary to Article 14 of the Constitution of India because in that event unequals would be found to have been treated equally. A recruiting body, no doubt is subject to judicial control but only on settled principles that the recruiting authority must have a measure of discretion to take decisions in accordance with law which are best suited to preserve the sanctity of the process.

                   [Also refer to Bihar School Examination Board –vs- Subhash Chandra Sinha & Ors. :: (1970) 1 SCC 648; Anamica Mishra & Ors. -vs- U.P. Public Service Commission, Allahabad & Ors. :: (1990) Supp SCC 692; Madhyamic Shiksha Mandal, MP –vs- Abhilash Shiksha Prasar Samiti & Ors. :: (1998) 9 SCC 236; Union of India & Ors. –vs- Rajesh P.U., Puthuvalnikathu & Anr. :: (2003) 7 SCC 285 & Inderpreet Singh Kahlon & Ors. -vs- State of Punjab & Ors. :: (2006) 11 SCC 356].

17. In Vanshika Yadav & Union of India & Ors. :: (2024) 9 SCC 743, one of the latest pronouncements of the Supreme Court, the position of law was clearly adumberated. A three Judges Bench of the Supreme Court in this case has opined that it is a settled law that the cancellation of an examination, either for the purposes of gaining admission to any professional or other courses or for the purposes of recruitment to Government posts, is justified only in cases where the sanctity of the examination is found to be compromised at a systemic level. A Court can direct cancellation of an examination or approve such cancellation by the competent authority only if it is not possible to separate the tainted candidates from untainted ones.

18. Again, while taking reference of Amamica Mishra (supra), Subhas Chandra Sinha (supra), Madhyamik Shiksha Mandal, M.P. (supra) and Sachin Kumar (supra), the Supreme Court held that the purpose of testing whether the integrity of the exam has been compromised at a systemic level is to ensure that the cancellation of the examination which has already taken place and the holding of a fresh examination is a proportionate response. In that context, it was said that it is for this reason that the Courts must assess the extent of the use of unfair means, and separately, it must consider whether it is possible to separate tainted and untainted candidates. The direction in the aforesaid decision is that a holistic view is required to be taken by the Courts.

19. How to arrive at such a conclusion viz. whether the examination has suffered from widespread irregularities?

20. The Courts have to ensure that the allegations of malpractice are substantiated and that the materials on record point to that conclusion. There must be at least some evidence to allow the Court to reach that conclusion. However, it was also clarified that this standard of test need not be unduly strict i.e. to say that it is not necessary that the materials pointed out regarding irregularities ought to indicate that the only conclusion which any prudent person would arrive at would be that malpractice has taken place at a systemic level and not otherwise.

                   [Also refer to Anand Legal Aid Forum Trust –vs- Bihar Public Service Commission & Ors. :: 2025 0 Supreme (Pat) 182].

21. In the case at hand, segregation was not possible for the reason that such candidates with double admit cards were never impleaded. There is only a vague generalization that the examination process was compromised. This is not sufficient for a wholesale cancellation of the examination result.

22. That apart, we have already noted that there was no breach of any directions in the advertisement, nor was it justified for the Tribunal to lend credence to the submissions of the respondents/the failed candidates, that OMR question answer system would have been better and that manual evaluation gave rise to suspicion that the scrutiny would not be appropriate.

23. That the successful candidates have been discharging their duties for more than 9(nine) years has also weighed with us in differing with the opinion of the Tribunal.

24. The credibility of the entire examination cannot be said to have been destroyed. The change of examination venue for administrative or security reasons do not per se vitiate the process, particularly when no mala fide or breach is pleaded or proved. The administrative exigencies are within the domain of the Examining Authority and Courts ought not to interfere with such decisions sans arbitrariness.

25. The material on record does not disclose that the issuance of double admit cards to a few candidates resulted in any undue advantage or manipulation of results. If true, it can at best constitute an isolated irregularity, not warranting wholesale cancellation. Mere repetition of few questions across two different sittings does not establish compromise of the purity of the examination.

26. The Tribunal, in our estimation has failed to record any finding of any systemic failure or fraud.

27. Thus, we find the order passed by the Tribunal to be wholly unsustainable in the eyes of law. Consequently, we have no other option but to set aside the same.

28. Both the writ petitions [WP(C) No.8878/2019 & WP(C) No.8935/2019] are allowed accordingly.