U.P. JAL NIGAM & ORS.versusAJIT SINGH PATEL & ORS.

804                     [2018] REPORTS
               SUPREME COURT   13 S.C.R. 804             [2018] 13 S.C.R.


A                          U.P. JAL NIGAM & ORS.
                                        v.
                         AJIT SINGH PATEL & ORS.
                    (Civil Appeal Nos. 11017-11018 of 2018)
B                             NOVEMBER 15, 2018
           [KURIAN JOSEPH AND A. M. KHANWILKAR, JJ.]
            Constitution of India:
             Art. 136 – Special Leave Petition – Maintainability of – Order
C     (dated 11.8.2017) of competent authority of appellant, declaring
      appointment of 122 candidates as void ab initio – Challenged in writ
      petition – High Court by order dated 28.11.2017 set aside the order
      dated 11.8.2017 holding that the authority failed to record the
      foundational fact that it was not possible to distinguish tainted and
      untainted cases; that there was possibility of all the candidates
D
      getting benefit of irregularities and that termination of appointments
      was without giving any opportunity of hearing to the concerned
      appointees – In appeal to Supreme Court, by order dated 16.3.2018
      liberty was granted to the appellants to approach the High Court
      for an order to re-work the answer-sheets on the basis of the
E     corrections – Pursuant to the liberty granted, appellants filed Review
      Petition before High Court – Review Petition was disposed of by
      order dated 25.7.2018 granting liberty to the appellants to segregate
      tainted and untainted candidates – Appeal against the orders of
      High Court dated 28.11.2017 and 25.7.2018 – Plea against
      maintainability of the appeal – Held: Appeal against order dated
F
      28.11.2017 was not permissible as the judgment when challenged
      on earlier occasion, therein Supreme Court had not granted any
      liberty to challenge that judgment of the High Court afresh –
      Supreme Court had also not granted liberty to the appellants to
      challenge the conclusion of High Court in the review application –
G     Appellants must in the first place act upon the decision dated
      28.11.2017 by passing a fresh reasoned order taking into account
      previous inquiry reports and other relevant material – Therefore,
      challenge to the impugned judgments dated 28.11.2017 and
      25.7.2018 must fail.
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                                     804
    U.P. JAL NIGAM & ORS. v. AJIT SINGH PATEL & ORS.                    805


      Disposing of the appeals, the Court                               A
                                                     th
       HELD: 1. Upon reading the order dated 16 March, 2018
and/or along with the order dated 20th August, 2018, passed by
Supreme Court, it is amply clear that the liberty granted to the
appellants was very limited. It posits that no other contention
was kept open or could be raised in the review application or in        B
any subsequent proceedings before this Court. As no liberty had
been granted to the appellants to challenge the judgment of the
High Court dated 28th November, 2017 afresh, it would mean
that the appellants can pursue the Special Leave petition only
against the decision of the High Court in review application, which
the High Court had rejected for the reasons recorded in its order       C
dated 25th July, 2018. In absence of such liberty to the appellants,
filing of fresh special leave petition against the self-same judgment
is not permissible. [Para 10][818-C-E]
      Vinod Kapoor v. State of Goa and Others (2012) 12
      SCC 378 : [2012] 8 SCR 1089; Kumaran Silks Trade                  D
      (P) Ltd.. (2) v. Devendra and Others (2006) 8 SCC 555
      : [2006] 7 Suppl. SCR 670; Sandhya Educational
      Society and Another v. Union of India and Others
      (2014) 7 SCC 701 – relied on.
       2. The judgment of the High Court in review application is       E
a benign one and is certainly not more adverse to the appellants.
For, the High Court has restated the dictum in its judgment dated
28th November, 2017 - that it would be open to the appellants to
separate the tainted candidates from the untainted ones and to
pass a fresh, reasoned order after providing opportunity to the         F
affected candidates. The High Court has also clarified that the
order passed by the Chief Engineer dated 11th August, 2017 has
been quashed on the sole ground that it was hit by principles of
natural justice, having been passed without issuing notice and
affording opportunity of hearing to the concerned candidates and
also because the said order does not refer to the fact that an          G
exercise was already undertaken by the appellants to distinguish
the case of tainted and untainted candidates and arrived at the
conclusion that it was not possible to do so, before issuing the
impugned order dated 11 th August, 2017. [Para 11][818-F-H;
819-A]                                                                  H
806            SUPREME COURT REPORTS                      [2018] 13 S.C.R.


A            3. The opinions given by the experts (Indian Institute of
      Information Technology, Allahabad and Indian Institute of
      Technology, Kanpur) which was relied on by the appellants, were
      certainly not available to the appropriate authority before the order
      was passed on 11th August, 2017. Indeed, the appropriate authority
      took into account two inquiry reports but the same did not evince
B
      that an exercise had already been undertaken to distinguish the
      tainted and untainted candidates or that it was not possible to do
      so, so as to uphold the decision of declaring the entire selection
      process as void. Had the appropriate authority done that exercise
      and recorded its satisfaction in that behalf, to be reflected in the
C     order passed by the Chief Engineer on 11th August, 2017, the
      High Court could have then followed the settled legal position
      that the nature and extent of illegalities and irregularities
      committed in conducting a selection will have to be scrutinized
      in each case so as to come to a conclusion about the future course
      of action to be adopted in the matter. [Para 12][819-B-E]
D
            Union of India and Others v. O. Chakradhar (2002) 3
            SCC 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 pick
E     out the persons who have been unlawfully benefited or wrongfully
      deprived of their selection, in such cases, it will neither be possible
      nor necessary to issue individual show-cause notices to each
      selectee. In that case, the only option would be to cancel the
      whole selection process and not limiting to one section of
      appointees. [Para 12][819-E-F]
F
            Veerendra Kumar Gautam and Others v. Karuna Nidhan
            Upadhyay and Others (2016) 14 SCC 18; Joginder Pal
            and Others v. State of Punjab and Others (2014) 6 SCC
            644 : [2014] 6 SCR 383; Vikas Pratap Singh and Others
            v. 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) 3
            SCC 146 : [2002] 1 SCR 1091 – distinguished.


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    U.P. JAL NIGAM & ORS. v. AJIT SINGH PATEL & ORS.                    807


       5. While disposing of the Special Leave Petition filed by        A
the appellants on the earlier occasion vide order dated 16th March,
2018, this Court has neither disturbed the conclusion reached
by the High Court in its order dated 28th November, 2017 nor
granted liberty to the appellants to challenge the said conclusion
in the review application or for that matter, by way of a fresh
                                                                        B
Special Leave Petition. The limited plea taken before this Court
was to allow the appellants to re-work the question and answer
sheets and revise the merit list and issue fresh, reasoned order
after providing opportunity of hearing to the affected candidates.
That option has been kept open. It is for the appellants to pursue
the same. In other words, the appellants must, in the first place,      C
act upon the decision of the High Court dated 28th November,
2017 whereby the order passed by the Chief Engineer dated 11th
August, 2017 has been quashed and set aside. The appellants
may then proceed in the matter in accordance with law by passing
a fresh, reasoned order. Indeed, while doing so, the appellants
                                                                        D
may take into consideration the previous inquiry reports as also
all other relevant material/documents which have become
available to them. [Paras 13 and 14][820-A-B; D-F]
       6. Therefore, the challenge to the impugned judgment
dated 28th November, 2017 and 25th July, 2018 must fail but with
a clarification that the competent authority of the appellant is free   E
to pass a fresh, reasoned order in accordance with law.
[Para 15][820-G]
      P.R. Deshpande v. Maruti Balaram Haibatti (1998) 6
      SCC 507 : [1998] 3 SCR 1079 – referred to.
                                                                        F
                       Case Law Reference
[1998] 3 SCR 1079              referred to             Para 9
[2012] 8 SCR 1089              relied on               Para 10
[2006] 7 Suppl. SCR 670        relied on               Para 10          G

(2014) 7 SCC 701               relied on               Para 10
[2002] 1 SCR 1091              referred to             Para 12
                               distinguished           Para 12
(2016) 14 SCC 18               relied on               Para 12          H
808            SUPREME COURT REPORTS                         [2018] 13 S.C.R.


A     [2014] 6 SCR 383                  relied on                 Para 12
      [2013] 10 SCR 1114                relied on                 Para 12
            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 11017-
      11018 of 2018.
B            From the Judgment and Order dated 28.11.2017 of the High Court
      of Judicature at Allahabad in Writ-A No. 37143 of 2017 and judgment
      and 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.
C     Pragya Baghel, Gaurav Mehrotra, Vikrant Yadav, Talha Abdul Rahman,
      Ms. Neha Meena, Kumar Anurag Singh, Mohd. Atif, Ms. Tulika
      Mukherjee, 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 dated
      28 November, 2017 in Writ-A No.37143/2017 and 25th July, 2018 in
        th

      Review Application No.2/2018 passed by the High Court of Judicature
      at Allahabad. The said writ petition was filed by the respondent Nos.1 to
      11 herein to challenge the order dated 11th August, 2017 passed by the
E
      Chief Engineer/Adhisthan-2-1, U.P. Jal Nigam (for short “Nigam”). The
      said decision of the Chief Engineer was preceded by a decision of the
      Board of Directors of Nigam taken in its 166th meeting held on 26th July,
      2017. It was found that the appointments made to 113 posts of Assistant
      Engineer (Civil), 5 posts of Assistant Engineer (Electrical/Mechanical)
F     and 4 posts of Assistant Engineer (Computer Science/Electronics and
      Communication/Electrical and Electronics) pursuant to notification dated
      19th November, 2016, were void ab initio.
             3. The High Court vide impugned common judgment and order
      dated 28th November, 2017 allowed the said writ petition and connected
G     matters, essentially, being of the view that the order passed by the Chief
      Engineer dated 11th August, 2017, was in breach of principles of natural
      justice. The High Court also opined that the said order of the Chief
      Engineer declaring the appointments of 122 candidates as void ab initio,
      had failed to record the foundational fact that it was not possible to
      distinguish tainted and untainted case(s) and that there was possibility of
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    U.P. JAL NIGAM & ORS. v. AJIT SINGH PATEL & ORS.                           809
                 [A. M. KHANWILKAR, J.]

all of them getting the benefit of the irregularities committed in the         A
selection process; and yet hastened to terminate the appointments of all
the 122 candidates by one order, that too, without giving notice and
opportunity of hearing to the concerned appointees. As regards the
irregularities committed in the subject selection process as noted in the
order dated 11th August, 2017, the High Court held that individual notice
                                                                               B
to 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 disposed
of vide order dated 16th March, 2018, in the following terms:
                               “ORDER                                          C
            Mr. Rakesh Dwivedi, learned senior counsel appearing
      for the petitioners, points out that the petitioners having
      found out that there were defective questions and incorrect
      answer keys, the High Court should have permitted the
      petitioners to re-work the merit list. He submitted that the             D
      High Court has gone wrong in insisting for an individual
      notice in the factual matrix of this case. In this regard he
      has also placed reliance on a judgment of this Court in Vikas
      Pratap Singh and Others v. State of Chhattisgarh and Others,
      reported in (2013) 14 SCC 494.
                                                                               E
          Mr. Mukul Rohatgi, learned senior counsel appearing for the
      respondent(s), however, points out that whether the questions were
      defective or key answers were incorrect are disputed questions
      and, therefore, liberty should be granted to the respondents to
      participate in the inquiry. He further submits that the decision of
      this Court referred to by the learned senior counsel for the             F
      petitioners 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 a
      liberty to re-work the answer sheets on the basis of the corrections,    G
      in case the High Court is also of the view that the corrections
      need to be made.
         The special leave petitions are, accordingly, disposed of.
      Pending application(s), if any, shall stand disposed of.”
                                                     (emphasis supplied)       H
810            SUPREME COURT REPORTS                         [2018] 13 S.C.R.


A           5. Pursuant to the liberty granted to the appellants, a review
      application came to be filed before the High Court being Civil Misc.
      Review Application No.2 of 2018. The appellants raised the following
      grounds in the said review application:
                                       “GROUNDS
B           (I) Because this Hon’ble Court while deciding the matter has not
            considered the fact that there is malpractice in the selection,
            however, on the technical ground that opportunity of hearing was
            done, therefore, order of selection was set aside and they were
            directed to reinstate and be paid salary subject to the liberty given
C           to the Authority to pass a fresh order.
            (II) Because this Hon’ble Court has not considered the fact that
            against 113 posts once candidates have called for interview and
            they were not even eligible for interview and finally out of 113
            posts 26 candidates are not even qualifying for interview, therefore,
D           they have wrongly been called for interview.
            (III) Because this Hon’ble Court has also not considered the fact
            that out of 5 posts of Assistant Engineer (Electrical/Mechanical),
            6 new candidates are being found eligible and 4 candidates who
            have earlier found eligible for interview are not found eligible for
E           interview and 2 candidates out of 5 candidates who have finally
            selected are not found eligible even for interview, therefore, they
            cannot be even considered for interview.
            (IV) Because this Hon’ble Court has further not considered the
            fact that for appointment on the post of Assistant Engineer
F           (Computer) 8 candidates who were being found eligible for
            interview are not found eligible for interview and 3 candidates out
            of 4 candidates who are selected even they are not eligible for
            interview, therefore, whole selection process is bad.
            (V) Because this Hon’ble Court while passing the order has
            directed for reinstatement and consequently the persons who are
G
            not eligible for interview they have been permitted to allow for
            interview.
            (VI) Because the matter has gone before the Hon’ble Apex Court
            and the Hon’ble Apex Court in Special Leave to Appeal (C) No.
            (s) 5410-5419/2018 has directed the present Respondents
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    U.P. JAL NIGAM & ORS. v. AJIT SINGH PATEL & ORS.                            811
                 [A. M. KHANWILKAR, J.]

      (Petitioner in SLP) may approach before the High Court, Allahabad         A
      so that proper direction may be given by the Court.
      (VII) Because while this Hon’ble Court deciding the matter has
      held that reservation is not applicable against the temporary post,
      it is not sustainable in the eye of law, as reservation is applicable
      for both on temporary appointment or on permanent appointment.            B
      (VIII) Because this Hon’ble Court while allowing the writ petition
      has further directed to reinstate and make payment of salary, which
      amount to allowing the persons who are not even qualified for
      interview, therefore, passing the order for reinstating them and
      also be paid salary to them is not permissible under law.                 C
      (IX) Because whole appointments are temporary against the
      temporary 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 of
      malpractice, as whole appointment was made in haste, without              D
      proper calculation and checking of marks, without publishing
      answer key as required and also there is some other allegations
      for which STF is already making enquiry.”
       6. The High Court disposed of the review application on 25th July,
2018 in the following terms:                                                    E
      “The Managing Director, U.P. Jal Nigam, Lucknow and the Chief
      Engineer, U.P. Jal Nigam, Lucknow have both filed an application
      for the review of the judgment and order dated 28.11.2017 by
      which a bunch of these writ petitions were finally decided.
                                                                                F
      The submission of learned Advocate General of State of
      U.P. is that the applicants be granted liberty to segregate
      tainted and untainted candidates in passing a fresh order
      for which liberty has been given.
      The order impugned in the writ petitions was of 11.08.2017 passed
      by the Chief Engineer, Jal Nigam which cancels the entire                 G
      selection.
      In allowing the petition, we have held that the order impugned in
      the writ petition has been passed in violation of principles of natural
      justice and that the selection as a whole was not liable to be
                                                                                H
812             SUPREME COURT REPORTS                          [2018] 13 S.C.R.


A           cancelled without undertaking any exercise to separate the tainted
            candidates from the untainted one’s. The court in the end while
            allowing the writ petitions had permitted the applicants to pass a
            fresh reasoned order after providing opportunity of hearing to the
            petitioners and the other affected parties keeping in view the
            observations made in the judgment.
B
            The applicants till date have not passed any fresh order.
            In passing the fresh order they may consider each and every
            aspect of the matter and they do not require any permission of the
            court for the manner in which they would pass the fresh order.
C           In view of above, we do not consider that any liberty for the
            above purpose is needed from the court.
            We do not find any apparent error in the judgment and order which
            is sought to be reviewed.

D           The Review Application stands disposed of.”
                                                             (emphasis supplied)
             7. In the present appeals, the appellants have assailed the
      aforementioned judgment and order passed by the High Court in the
      review application as also the main judgment and order passed in the
E     writ petition, which was the subject matter of challenge in Special Leave
      Petition (Civil) Nos.5410-5419 of 2018. These appeals have been filed
      by the appellants despite the undertaking given by them before the High
      Court on 19th April, 2018 that the direction given in the order of the High
      Court dated 28th November, 2017 would be complied with on or before
      15th May, 2018.
F
              8. The respondents have raised preliminary objections regarding
      the maintainability of these Special Leave Petitions. First, because the
      impugned judgment and order was already challenged by the appellants
      in Special Leave Petition (Civil) Nos.5410-5419 of 2018. The said SLPs
      were disposed of on 16th March, 2018 without any liberty to the appellants
G     to challenge the impugned judgment dated 28th November, 2017 afresh.
      The appellants cannot be permitted to challenge the self-same judgment
      by filing successive petitions. If this objection is upheld, contends learned
      counsel for the respondents, the present appeals can be pursued by the
      appellants, at best, only in respect of the judgment and order passed on
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       U.P. JAL NIGAM & ORS. v. AJIT SINGH PATEL & ORS.                       813
                    [A. M. KHANWILKAR, J.]

the review application. In that case, however, the Special Leave Petition     A
solely against the judgment passed on review application would not be
maintainable, in view of the dictum in Sandhya Educational Society
and Another Vs. Union of India and Others1. The respondents would
then contend that the appellants cannot be permitted to resile from the
undertaking given to the High Court, especially when the appellant(s) is
                                                                              B
a State within the meaning of Article 12 of the Constitution of
India.Relying upon the order passed by this Court on 16th March, 2018
in Special Leave Petition (Civil) Nos.5410-5419 of 2018 and the impugned
judgment passed in review application including the order passed by this
Court on 20th August, 2018 in the present Special Leave Petitions, the
respondents would then contend that the appellants cannot be permitted        C
to raise any other ground except the contention that the appellants ought
to be permitted to revise the merit list by segregating the tainted and
untainted candidates with liberty to pass a fresh order. In other words,
the appellants cannot be permitted to urge any other argument in support
of the order dated 11th August, 2017 passed by the Chief Engineer. For,
                                                                              D
that order has already been quashed and set aside for the reasons
recorded in the judgment whilst allowing the writ petition filed by the
respondents and which reasons commended to this Court vide order
dated 16th March, 2018.
       9. The appellants, however, urge that the disposal of Special Leave
Petitions by this Court on 16th March, 2018 will not come in the way of       E
the appellants to challenge the common judgment and order of the High
Court dated 28th November, 2017 passed in Writ Petition-A No.37143 of
2017. Inasmuch as there is clear indication in the order dated 16 th March,
2018 that this Court had not dismissed the special leave petitions; but
acceded to the argument of the appellants and gave liberty to the             F
appellants to approach the High Court to re-work the answer sheets on
the basis of corrections. It is urged that the technicalities should not
come in the way of the appellants to persuade this Court to uphold and
restore the order dated 11th 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 Chairman   G
and other officials including the persons who were authorised
representatives of the agency which had conducted the online
examination, by filing an F.I.R. for offences punishable under Sections
1
    (2014) 7 SCC 701
                                                                              H
814            SUPREME COURT REPORTS                         [2018] 13 S.C.R.


A     409, 420, 120-B/201 of I.P.C. and 13(1)(d) of the Prevention of Corruption
      Act, 1988. The counsel for the appellants stated that the appellants are
      in the process of terminating the appointments of all other candidates
      appointed under the same selection process who are presently working
      with the appellants. That has become necessary in view of the informed
      opinion given by the experts of Indian Institute of Information Technology,
B
      Allahabad, that identification and segregation of tainted and untainted
      candidates is not possible. The said experts, on examination of the files
      and CDs, have reached at the following conclusions, as recorded in the
      communication addressed to the appellants dated 11th September, 2018:
            “Conclusions:
C
            I. To identify “tainted” candidates essentially implies identifying
            those candidates, whose response data may have been modified
            after the end of the computer-based exam. To perform this
            assessment, the original response data of the candidates (captured
            immediately at the closure of the examination window) along with
D           relevant checksum information is required. This reference
            (checksum) information, as per observation 1 above, was neither
            recorded by the service provider nor communicated to UPJN.
            Therefore, identification and segregation of tainted and non-tainted
            candidates is not possible.
E           II. In the absence of information (as per observation 1) and by
            noting observations 3-4, the authenticity of the data as and in the
            form provided (observations 5-6) cannot be accepted and/or
            verified.
            III. The veracity of the entire process is also doubtful in view of
F           observations 7-10.
            IV. Considering observation 8 above, it stands to reason that the
            candidate response files, as submitted by the service provider were
            created, rather hurriedly and certainly not as expected. In the
            absence of any validating information, there is every possibility
G           that these candidate response files (provided on the CDs) might
            have been doctored.
            Final notes:
            All the above observations are based on the implicit condition that
            all the documents and data shared with the undersigned have a
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    U.P. JAL NIGAM & ORS. v. AJIT SINGH PATEL & ORS.                         815
                 [A. M. KHANWILKAR, J.]

      verified provenance, and responses provided by the personnel made      A
      available for interaction with the undersigned on 9th and 10th
      September, 2018 at the UPJN head office in Lucknow, are true.
      Additionally – This report uses two technical terms which are
      being explained below for your convenience.
                                                                             B
      •    Checksum: A small block of digital data generated by a
           checksum algorithm such as MD5 (Message Digest 5), SHA-
           1 (Secure Hash 1), SHA-2, etc. when it operates on a given
           source data (file). This small block of digital data generated
           is like a digital fingerprint and is unique to the file it was
                                                                             C
           generated for. In the event that the source file changes or is
           modified in any form, its checksum will change.

      • HTML: Hyper Text Markup Language is the basic computer
           language, used to create web pages.
                                                                             D
      I hope that this report, answers the two queries raised in your
      letter 104/CE (E-2-1) Camp/18 dated 31.8.2018 to your
      satisfaction.”
Reliance is also placed on the opinion given by the Associate Professor,
Computer Science and Engineering, Indian Institute of Technology, Kanpur
dated 15th September, 2018, which reads thus:                                E

      “After going through the pertinent agreements between the Uttar
      Pradesh Jal Nigam and M/s Aptech Limited and relevant
      documents, I have the following observations to humbly present.
      A brief chronology of the events is as follows:                        F
      (i) The examination was conducted on December 16, 2016.
      (ii) After short listing candidates based on the exam conducted
           on December 16, 2016, the interviews of the short listed
           candidates were held between 30th Dec. and 31st Dec. 2016.
                                                                             G
      (iii) The final result was declared on January 3, 2017.
      (iv) On February 27, 2017, M/s Aptech Limited delivered the
           result files on several CDs to U.P. Jal Nigam Limited.
      Upon examining the contents of the files presented by M/s Aptech
Limited, it appears that the earliest modification date of any file on the   H
816            SUPREME COURT REPORTS                         [2018] 13 S.C.R.


A     CDs is much after December 16, 2016. In a computer-based test, the
      response of the candidates is uploaded in the main server (in the present
      case the cloud server) immediately after the completion of the exam.
      Immediately after the examination is over, each candidate’s response is
      secured so that interpolation or manipulation is not possible after wards.
      In the present case, the submitted file was modified after 16 th December,
B
      2016 which raises a strong doubt and it cannot be ruled out that response
      sheets of candidates were not manipulated during this period. Under the
      present circumstance, it is not possible to independently confirm that
      response sheets of candidates in the CDs made available are the same
      as responses made by the candidates on the date of examination. There
C     is no file in the CDs provided by M/s Aptech Limited with the last
      modification date equal to the day of the examination. Since I have been
      informed 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 is
      an exact copy of the data available immediately upon the completion of
      the exam.
D
             No audit trail containing the individual mouse clicks and timestamps
      of the choices made by the students has been provided in the CDs. Such
      an audit trail will make it easier to corroborate that the answers given by
      the students in the examination is the same as the answer sheet that
      they were graded on later. Such an audit trail is helpful to settle any
E     discrepancies and challenges that the exam candidates may later raise.
      Since M/s Aptech Limited has not provided such an audit trail, it is not
      possible for me to corroborate and confirm that there are no discrepancies
      between the student’s actual responses and those, which were used for
      grading.
F            Moreover, I am informed that the standard procedures followed
      in public examinations like JEE (Mains). JEE (Advanced) and GATE,
      were not followed. It is a customary practice in these exams to publish
      the answer key to the exam, invite any objections or rebuttals from the
      candidates, consolidate these responses, and subsequently, freeze the
G     answer key. Grading of the answer sheets is done only after such an
      opportunity has been provided to the candidates. This common practice
      has not been followed in the present case, which raises doubt as well as
      apprehension that the response sheets of individual candidates might
      have been compromised. The errors in answer keys of this particular

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     U.P. JAL NIGAM & ORS. v. AJIT SINGH PATEL & ORS.                          817
                  [A. M. KHANWILKAR, J.]

examination may have been reduced or eliminated all together, had such         A
an opportunity been given before the publication of the results of the
computer-based test.
        Considering the lack of primary data with M/s Aptech Limited, it
is not possible to independently confirm the authenticity of the provided
data on the CD, and hence the segregation of tainted & untainted               B
candidates 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. Deshpande
Vs. Maruti Balaram Haibatti2 to contend that despite the undertaking           C
given to the High Court, it is open to pursue the legal remedy available to
the appellants under Article 136 of the Constitution of India.
       10. We have heard the learned counsel for the parties, including
the counsel for the applicants in intervention applications. We deem it
apposite to first turn to the efficacy of the order of this Court dated 16th   D
March, 2017. On a fair reading of the said order passed by a two-Judge
Bench (to which one of us, Mr. Justice Kurian Joseph was a party), this
Court noted the limited grievance of the appellants that in the wake of
defective questions and incorrect answers given, the High Court should
have permitted the appellants to revise the merit list. After noting that      E
position, the Court granted liberty to the appellants to approach the High
Court for that limited purpose. While doing so, no liberty was granted to
the appellants to challenge the impugned judgment dated 28th November,
2017 afresh before this Court. No such liberty was sought at that time.
This position is restated in the order dated 20th August, 2018 passed in
the present Special Leave Petitions, which reads thus:                         F
                               “O R D E R
          The only liberty granted to the petitioners and as rightly
      understood by the learned Advocate General appearing for
      the State was to segregate the tainted from the untainted
                                                                               G
      as per Order dated 16.03.2018.
          We direct the petitioners to file a report, in a sealed cover,
      within one month from today, as to what steps have been taken
      pursuant to the Judgment dated 28.11.2017 passed by the High
                                                                               H
818                SUPREME COURT REPORTS                      [2018] 13 S.C.R.


A               Court and the order dated 16.03.2018 by this Court in the Special
                Leave Petition.
                List on 20.09.2018.
            The petitioners may approach the High Court and seek for
      extension of time.”
B
                                                             (emphasis supplied)
      One of us (Mr. Justice Kurian Joseph) was a party even to this order.
      Upon reading the order dated 16th March, 2018 and/or along with the
      order dated 20th August, 2018, it is amply clear that the liberty granted to
C     the appellants was very limited. It posits that no other contention was
      kept open or could be raised in the review application or in any subsequent
      proceedings before this Court. As no liberty had been granted to the
      appellants to challenge the judgment of the High Court dated 28th
      November, 2017 afresh, it would mean that the appellants can pursue
      the Special Leave petition only against the decision of the High Court in
D     review application, which the High Court had rejected for the reasons
      recorded in its order dated 25th July, 2018 (reproduced in paragraph
      No.6 above). In absence of such liberty to the appellants, filing of fresh
      special leave petition against the self-same judgment is not permissible.
      [See Vinod Kapoor Vs. State of Goa and Others3, Kumaran Silks
E     Trade (P) Ltd.. (2) Vs. Devendra and Others 4 and Sandhya
      Educational Society (supra).]
               11. The respondents have relied upon the dictum in Sandhya
      Educational Society (supra), that a Special Leave Petition only against
      the judgment in a review application is not maintainable. Be that as it
F     may, the judgment of the High Court in review application is a benign
      one and is certainly not more adverse to the appellants. For, the High
      Court has restated the dictum in its judgment dated 28th November, 2017
      - that it would be open to the appellants to separate the tainted candidates
      from the untainted ones and to pass a fresh, reasoned order after providing
      opportunity to the affected candidates. The High Court has also clarified
G     that the order passed by the Chief Engineer dated 11th August, 2017 has
      been quashed on the sole ground that it was hit by principles of natural
      justice, having been passed without issuing notice and affording
      opportunity 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
     U.P. JAL NIGAM & ORS. v. AJIT SINGH PATEL & ORS.                           819
                  [A. M. KHANWILKAR, J.]

said order does not refer to the fact that an exercise was already              A
undertaken by the appellants to distinguish the case of tainted and
untainted candidates and arrived at the conclusion that it was not possible
to do so, before issuing the impugned order dated 11th August, 2017.
        12. The appellants have now relied upon the opinions given by the
experts (Indian Institute of Information Technology, Allahabad and Indian       B
Institute of Technology, Kanpur) as noted in the report submitted to this
Court dated 20th August, 2018. The same were certainly not available to
the appropriate authority before the order was passed on 11th August,
2017. Indeed, the appropriate authority took into account two inquiry
reports but the same did not evince that an exercise had already been
undertaken to distinguish the tainted and untainted candidates or that it       C
was not possible to do so, so as to uphold the decision of declaring the
entire selection process as void. Had the appropriate authority done that
exercise and recorded its satisfaction in that behalf, to be reflected in
the order passed by the Chief Engineer on 11th August, 2017, the High
Court could have then followed the settled legal position expounded in          D
Union of India and Others Vs. O. Chakradhar5 - that the nature and
extent of illegalities and irregularities committed in conducting a selection
will have to be scrutinized in each case so as to come to a conclusion
about the future course of action to be adopted in the matter. Further, if
the mischief played is so widespread and all-pervasive, affecting the
result so as to make it difficult to pick out the persons who have been         E
unlawfully benefited or wrongfully deprived of their selection, in such
cases, it will neither be possible nor necessary to issue individual show-
cause notices to each selectee. In that case, the only option would be to
cancel the whole selection process and not limiting to one section of
appointees. This view has been restated in the recent decision in               F
Veerendra Kumar Gautam and Others Vs. Karuna Nidhan
Upadhyay and Others6, (also see Joginder Pal and Others Vs. State
of Punjab and Others7). The dictum in the two judgments relied upon
by the appellants of O. Chakradhar (supra) and Vikas Pratap Singh
and Others Vs. State of Chhattisgarh and Others8 will be of no avail
to the appellants in the fact situation of the present case.                    G

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
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820            SUPREME COURT REPORTS                        [2018] 13 S.C.R.


A            13. Suffice it to observe that while disposing of the Special Leave
      Petition filed by the appellants on the earlier occasion vide order dated
      16th March, 2018, this Court has neither disturbed the conclusion reached
      by the High Court in its order dated 28th November, 2017 nor granted
      liberty to the appellants to challenge the said conclusion in the review
      application or for that matter, by way of a fresh Special Leave Petition.
B
      The relevant conclusion of the High Court in its order dated 28th
      November, 2017, reads thus:
            “In view of the above, we are of the considered opinion that the
            impugned order dated 11.8.2017 has been passed in violation of
            principles of natural justice without issuing notice and without
C           affording opportunity of hearing to the petitioners, no exercise
            was undertaken to distinguish the case of tainted and non-tainted
            candidates to arrive at the conclusion while passing the impugned
            order as such the impugned order dated 11.8.2017 is not sustainable
            and is liable to be set aside.”
D             14. The limited plea taken before this Court as noted in the first
      paragraph of order dated 16th March, 2018 was to allow the appellants
      to re-work the question and answer sheets and revise the merit list and
      issue fresh, reasoned order after providing opportunity of hearing to the
      affected candidates. That option has been kept open. It is for the
E     appellants to pursue the same. In other words, the appellants must, in
      the first place, act upon the decision of the High Court dated 28th
      November, 2017 whereby the order passed by the Chief Engineer dated
      11th August, 2017 has been quashed and set aside. The appellants may
      then proceed in the matter in accordance with law by passing a fresh,
      reasoned order. Indeed, while doing so, the appellants may take into
F     consideration the previous inquiry reports as also all other relevant
      material/documents which have become available to them. We make it
      clear that we have not dilated on the efficacy of the opinion given by the
      experts of “IIIT Allahabad and IIT Kanpur”.
              15. In view of the above, the challenge to the impugned judgment
G     dated 28th November, 2017 and 25th July, 2018 must fail but with a
      clarification that the competent authority of Nigam is free to pass a
      fresh, reasoned order in accordance with law.
             16. We may not be understood to have expressed any opinion
      either way on the merits of the course of action open to the appellants
H
    U.P. JAL NIGAM & ORS. v. AJIT SINGH PATEL & ORS.                         821
                 [A. M. KHANWILKAR, J.]

against the respondents including against the other appointees under the     A
same selection process. All questions in that behalf are left open.
      17. The appeals along with all the interlocutory applications are
disposed of in the above terms. No order as to costs.

                                                                             B
Kalpana K. Tripathy                                   Appeals disposed of.




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