UNION OF INDIA AND ORS.versusJOSEPH P. CHERIAN

                       UNION OF INDIA AND ORS.                                   A
                                  v.
                          JOSEPH P. CHERIAN

                           SEPTEMBER 26, 2005

               [ARIJIT PASAYAT AND C.K. THAKKER, JJ.]                            B


     Service Law:

      Promotion-Post of Sub-Inspector, in Border Security Force-
Departmental examination against 24 vacancies in 1995-Cancellation of C
results, on ground of adoption of unfair means-Fresh departmental
examination against 86 vacancies in 1998-Plea of single employee for
grant of promotion to the post on basis of marks secured by him in previous
examination, in respect of vacancies arisen in I 998 'even though subsequent
examination not taken by him-Grant of, by High Court-Sustainability of- D
Held: When the results of previous examination have been cancelled on the
ground of malpractice, individual's case on basis of marks secured by him
at the said examination cannot be considered, against vacancies arising in
subsequent year, that too when he did not appear in the fresh examination--
Hence, grant of such relief unsustainable and order of High Court set aside.
                                                                                 E
       In 1995 departmental examination was held with regard to 24 vacancies
existing in the grade of Sub Inspector in Border Security Force. Respondent-
employee appeared at centre S. On account of adoption of unfair means at
various centres, result of all centres was cancelled. Thereafter, fresh
departmental examination was held against 86 vacancies arising in 1998.
Respondent did not appear in the examination and filed writ petition for         F
promotion to the post of Sub Inspector on basis of marks secured by him in
the departmental examination held in 1995, in respect ofvacancies arisen in
1998. High Court granted the relief. Hence the present appeal.

     Allowing the appeal, the Court
                                                                                 G
      HELD: There was no challenge to the cancellation of the result in the
writ petition. In fact, High Court itself noted that on the basis of a single
individual's challenge the question whether the examination in its entirety
was to be nullified was not examined, yet it granted relief to the respondent-
                                    617                                          H
    618                     SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.

A employee with clearly unsustainable directions. High Court's view that if
    unfair means were adopted at one centre, result of other centres should not
    have been cancelled, is wholly indefensible. The Staff Court of Inquiry recorded
    a finding that there were serious irregularities in the conduct of examination
    at centre J and unfair means on a large scale were adopted at other centres
    and as such the decision to cancel the examination was taken. When the results
B   of 1995 examination have been cancelled, the question of the respondent-
    employee's case being considered on the basis of marks secured by him at
    the said examination does not arise. While considering the case of mass
    malpractice there is no scope of examining the individual's case. Further, the
    direction that the respondent will be considered in respect of 86 vacancies
C   which arose subsequent to the examination taken by him is equally indefensible
    since the respondent did not appear at the departmental examination held in
    1998. Hence, the relief granted to the respondent-employee is unsustainable.
                                                             (620-D-E, F; 621-A, CJ

          The Bihar Education Board v. Subhas Chandra Sinha and Ors., AIR
D (1970) SC 1269; Krishan Yadav and Anr v. State of Haryana and Ors., AIR
    (1994) SC 2166; P.A. Ratnakar Rao and Ors. v. Government ofAndhra Pradesh
    and Ors., AIR (1996) SC 2523; Kendriya Vidyalaya Sangathan and Ors. v.
    Ajay Kumar Dass and Ors., [2002) 4 SCC 503 and Union of India and Ors. v.
    0. Chakradhar, AIR (2002) SC 1119, relied on.
E         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 23of1999.

         From the Judgment and Order dated 5.5.98 of the Punjab and Haryana
    High Court in C.W.P. No. 14625of1997.

          Anuvrat Sharma, Ms. Sushma Suri and P. Parmeshwaran for the
F Appellants.
          Goodwill lndeevar, (NP) for the Respondents.

          The Judgment of the Court was delivered by

G       ARIJIT PASAYAT,J. The Union of India through the Secretary, Ministry
  of Home affairs and other functionaries of the Union have questioned
  correctness of the judgment rendered by a Division Bench of the Punjab and
  Haryana High Court holding that the respondent (hereinafter referred to as
  the 'employee') was entitled to be promoted to the post of Sub Inspector on
  the basis of marks secured by him in the departmental examination held on
H 24th and 25th July, 1995, in respect of the vacancies arising in 1998.
                 U.0.1. v. JOSEPHP.CHERIAN(PASAYAT,J.)                  619
     A brief reference to the factual aspect would suffice:                   A
       In the Border Security Force 25% of the posts in the rank of Sub
Inspector is filled up from amongst the Assistant Sub Inspectors who have
put in not less than five years of regular service provided they come out
successful in the prescribed departmental examination held from time to time
for the said purpose. The promotion for the rest of the posts is given from B
different channels with which the present dispute has no relevance. On 24th
and 25th July, 1995 departmental examination was held at ten different centres
throughout the country. The departinental examination was conducted in
regard to 24 vacancies existing in the grade of Sub Inspector. The respondent-
employee appeared at the Siliguri (West Bengal) centre. Though in May, 1996 C
results of the departmental examination were declared, complaints were received
that there was malpractice in various centers and more particularly at the
Jallandhar Centre. Grievance was that most of the candidates who had appeared
from that center had come out successful. Taking note of the complaint
enquiry was made by Staff Court of Inquiry and before the list of successful
candidates could be placed before the Departmental Promotion Committee, on D
being satisfied about the unfair means adopted, the entire examination held
at various centers was cancelled vide order dated 10th July, 1997. In the year
1996 no examination was held and, in fact, the next examination which was
to be held in December, 1997 was held in April, 1998. The respondent did not
appear at the 1998 examination. Writ petition was filed by the respondent- E
employee essentially praying for direction to promote him with effect from the
date he became eligible as Sub Inspector/Clerk in the quota fixed for promotion
on the basis of the departmental examination. Prayer was also made for
direction to the functionaries of the Union to hold the Departmental Promotion
Committee for finalizing the promotion. The High Court was of the view that
if there were allegations of malpractice in respect of one centre the whole F
examination should not have been cancelled.. It, however, was of the view that
since only one candidate had questioned the legality and for not giving effect
to the departmental examination result, it was unnecessary to examine the
question whether the cancellation of result of all the centres was justified. It,
however, ailowed the writ petition by holding that the respondent-employee G
for all intent purposes was entitled to be considered on the basis of marks
secured by him in the examination held in July, 1995. Authorities were directed
to take that marks into consideration while making the merit list in the
examination held in April, 1998. According to the High Court respondent-
employee was entitled to be considered against the 86 vacancies for which
examination was held in 1996 and not necessarily against the 24 vacancies H
    620                     SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A which were available at the time he had appeared at the earlier examination.
    The further direction of the High Court was that if the respondent-employee
    came within the first 86 in the list to be prepared by the Departmental
    Promotion Committee, and actual appointments are made up to that number
    then he is to be promoted.

B          Learned counsel for the appellants submitted that the approach of the
    High Court is clearly erroneous. There was no challenge to the cancellation
    of results and the direction for fresh departmental examination. In the case of
    malpractice there is no question of considering an individual's case separately,
    as is a settled position in law. Further, the direction to place the respondent-
C   employee in the merit list on the basis of the marks secured by him in the
    examination held in July, I995 while drawing up the merit list on the basis of
    April, I 998 examination is legally untenable.

          There is no appearance on behalf of the respondent when the matter
    is taken up.
D
         We find that the High Court's approach is clearly indefensible. There
  was no challenge to the cancellation of the result in the writ petition. In fact,
  the High Court itself noted that on the basis of a single individual's challenge
  the question whether the examination in its entirety was to be nullified was
  not examined. Yet it granted relief to the respondent-employee with clearly
E unsustainable directions. High Court's view appears to be that if unfair means
  were adopted at one center, result of other centers should not have been
  cancelled. This view is wholly indefensible. The Staff Court oflnquiry recorded
  a finding that there were serious irregularities in the conduct of examination
  at Jallandhar centre and unfair means on a large scale were adopted. There
F was leakage of question papers and its transmission to candidates at other
  centers through model modes of communication was not ruled out. Having
  regard to all these factors, the decision to cancel the examination was taken.
  When the results of 1995 examination have been cancelled, the question of
  the respondent-employee's case being considered on the basis of marks
  secured by him at the said examination does not arise. As is settled in a long
G line of decisions, while considering the case of mass malpractice there is no
  scope of examining an individual's case. (See The Bihar Education Board v.
  Subhas Chandra Sinha and Ors., AIR (1970) SC 1269, Krishan Yadav and
  Anr.. v. State of Haryana and Ors., AIR (1994) SC 2166, P.A. Ratnakar Rao
  and Ors. v. Government of Andhra Pradesh and Ors., AIR (1996) SC 2523,
H Kendriya Vidyalaya Sangathan and Ors. v. Ajay Kumar Dass and Ors., [2002]
                       U.0.1. v. JOSEPHP. CHERIAN [PASA YAT,J.]               621
      4 SCC 503 and Union ofIndia and Ors. v. 0. Chakradhar, AIR (2002) SC 1119. A

            Further the direction that the respondent-employee will be considered
      in respect of 86 vacancies which arose subsequent to the examination taken
      by him is equally indefensible direction. The High Court failed to take note
      of the very significant and relevant aspect that the respondent-employee did
      not appear at the departmental examination held in April, 1998.                B
           Above being the position the relief granted to respondent-employee is
      unsustainable. The order of the High Court is set aside and the appeal
...   succeeds, but in the circumstances without any order as to costs.

      NJ.                                                         Appeal allowed.    C