'Systemic Fraud Or Irregularities Make Entire Selection Process Illegitimate': SC Upholds Cancellation Of Examination By Delhi Subordinate Services Selection Board

Recruitment to public services must command public confidence, remarked the Supreme Court while upholding the cancelation of the Tier-I and Tier-II examinations held in 2009 for recruitment to the post of Head Clerk [(Grade II (DASS)] Delhi Subordinate Services Selection Board.

"Where the entire process is found to be flawed, its cancellation may undoubtedly cause hardship to a few who may not specifically be found to be involved in wrong-doing. But that is not sufficient to nullify the ultimate decision to cancel an examination where the nature of the wrong-doing cuts through the entire process so as to seriously impinge upon the legitimacy of the examinations which have been held for recruitment", the bench comprising Justices DY Chandrachud and MR Shah said while allowing the appeals filed by  Delhi Government and DSSSB challenging the decision of the High Court affirming the orders of the Central Administrative Tribunal which had set aside the annulment of the recruitment process.

The court observed that DSSSB and GNCTD must now take adequate measures to ensure against the recurrence of such instances which erode the credibility of and public confidence in the recruitment process. We direct that a comprehensive exercise to re-visit the modalities and safeguards be carried out within a period of two months to ensure that the probity of the recruitment process in future is maintained, the bench observed.

This case pertains to the cancellation of examinations conducted by the Board to the post of [(Grade 2 (DASS)]/Head Clerk (post code 90/09) for a total of 231 vacancies in Services Department – II, GNCTD. After examining various complaints alleging irregularities and malpractices, the cancellation notification was issued on 15 March 2016. 

The court observed that a fair and reasonable process  of selection to posts subject to the norm of equality of opportunity under Article 16(1) is a constitutional requirement.

"A fair and reasonable process is a fundamental requirement of Article 14 as well. Where the recruitment to public employment stands vitiated as a consequence of systemic fraud or irregularities, the entire process becomes illegitimate. On the other hand, where it is possible to segregate persons who have indulged in mal-practices and to penalise them for their wrongdoing, it would be unfair to impose the burden of their wrong-doing on those who are free from taint. To treat the innocent and the wrong-doers equally by subjecting the former to the consequence of the cancellation of the entire process would be contrary to Article 14 because unequals would then be treated equally. The requirement that a public body must act in fair and reasonable terms animates the entire process of selection. The decisions of the recruiting body are hence subject to judicial control subject to the settled principle 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. "

Referring to various precedents on this issue, the bench observed that a recruiting authority is entitled to take a bona fide view, based on the material before it, that the entire process stands vitiated as a result of which a fresh selection process should be initiated.

"The integrity of the selection process cannot be lightly disregarded by the High Court substituting its own subjective opinion on the sufficiency of the material which has been taken into account by the decision making authority. Undoubtedly, fairness to candidates who participate in the process is an important consideration. There may be situations where candidates who have indulged in irregularities can be identified and it is then possible for the authority to segregate the tainted from the untainted candidates. On the other hand, there may be situations where the nature of the irregularities may be manifold and the number of candidates involved is of such a magnitude that it is impossible to precisely delineate or segregate the tainted from the untainted. A considered decision of the authority based on the material before it taken bona fide should not lightly be interfered in the exercise of the powers of judicial review unless it stands vitiated on grounds of unreasonableness or proportionality.", it said.

Referring to the Committee reports in the instant case, the court said that there is sufficient basis to contend that mass-scale irregularities have occurred. While allowing the appeal, the bench observed:

"Recruitment to public services must command public confidence. Persons who are recruited are intended to fulfil public functions associated with the functioning of the Government. Where the entire process is found to be flawed, its cancellation may undoubtedly cause hardship to a few who may not specifically be found to be involved in wrong-doing. But that is not sufficient to nullify the ultimate decision to cancel an examination where the nature of the wrong-doing cuts through the entire process so as to seriously impinge upon the legitimacy of the examinations which have been held for recruitment. Both the High Court and the Tribunal have, in our view, erred in laying exclusive focus on the report of the second Committee which was confined to the issue of impersonation. The report of the second Committee is only one facet of the matter. The Deputy Chief Minister was justified in going beyond it and ultimately recommending that the entire process should be cancelled on the basis of the findings which were arrived at in the report of the first Committee. Those findings do not stand obliterated nor has the Tribunal found any fault with those findings. In this view of the matter, both the judgments of the Tribunal and the High Court are unsustainable"

Case:  Sachin Kumar vs. Delhi Subordinate Service Selection Board [Civil Appeal Nos 639-640 of 2021]
Coram: Justices DY Chandrachud and MR Shah
Counsel: Sr. Adv P S Patwalia, Adv Chandra Shekhar, Sr. Adv Ritin Rai, ASG Madhavi Divan
Citation: LL 2021 SC 128

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