Dileshwar Kumar and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
- mining direction to state government to consider all applications afresh in light of interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules main issue : whether the state government's recommendation dated 06.12.2004 and the proceedings of the chief minister are contrary to the provisions of section 11 of the act and rules 59 and 60 of mc rules and not valid in law. a perusal of the proceedings of the chief minister shows that no clear reasons were given to show as to why jindal and kalyani were preferred over other applicants.[para 18]--the proceedings of the chief minister, at no level, consider the various guiding criteria mentioned in section 11(3)[para 19] b) whether the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- applications made prior to the notification cannot be entertained because they are premature.[para 21] if such premature applications are allowed to be entertained, it would result in the state government giving out mining leases to favoured persons without notice to the general public.[para 53] c) whether the order of the high court of karnataka in ziaulla sharieff's case permit the consideration of the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. the order of the high court of karnataka in ziaulla sharieff's case does not permit the consideration of jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) whether rule 35 of the mc rules justify the recommendation of the state government in favour of the respondents-jindal and kalyani -- as discussed above, rule 35 only permits the state government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) whether the criterion of "captive consumption" referred to in tata iron and steel co. ltd. vs. union of india, (1996) 9 scc 709, have any application in this case despite not being one of the factors referred to in section 11 (3) of the mmdr act or rule 35 of the mc rules -- we have already held that section 11(3) specifies the matter relevant for purposes of second proviso to section 11(2). we also referred to the committee's report. in accordance with the recommendation in the said report, section 11(3)(d) was added as part of the substitution of section 11 in the year 1999. sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". even the residuary clauses in section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. this is fortified by decision of this court in bsnl ltd. & anr. vs. bpl mobile cellular ltd. & ors., (2008) 13 scc 597, para 45.[para 35] f) whether factors such as the past commitments by the state government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the mmdr act and the mc rules constituting a complete code -- it is not open to the state government to justify grant based on criteria that are de hors to the mmdr act and the mc rules. the exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. it is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] in view of the specific parliamentary declaration as discussed and explained by this court in various decisions, there is no question of the state having any power to frame a policy de hors the mmdr act and the rules.[para 25] central and the state government act as mere delegates of parliament while exercising powers under the mmdr act and the mc rules.[para 27] g) whether the recommendation in favour of respondents-jindal and kalyani saved by the operation of the law of equity. the law of equity cannot save the recommendation in favour of jindal and kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. this principle was clearly stated by this court in the cases of kedar lal vs. hari lal sea, (1952) scr 179 at 186 and raja ram vs. aba maruti mali (1962) supp. 1 scr 739 at 745. it is clear that where the field is covered expressly by section 11 of the mmdr act, equitable considerations cannot be taken into account to assess jindal and kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) whether the learned single judge as well as the division bench are justified in arriving at such conclusion. though the learned single judge in his order dated 07.08.2008 quashed the communication/recommendation of the state government dated 06.12.2004 proposing to grant mining lease to jindal and kalyani, however, the learned single judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire notification no. ci.16:mmm.2003 dated 15.03.2003. in our view, while approving earlier part of his order and quashing the communication/recommendation of the state government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the act and the rules. the said observations/directions are deleted.[para 55] the division bench has erred in concluding that the jindal's application made prior to the notification can be entertained along with the applications made pursuant to the said notification because it is not section 11(4) which covers the said notification under rule 59(1) but the first proviso to section 11(2). as a matter of fact, the division bench did not even mention section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single judge hinged on how section 11(4) would be rendered otiose and redundant if the first proviso to section 11(2) was taken as governing the consideration of applications under a notification pursuant to rule 59(1) [para 52] i) whether it is advisable to remit it to the central government. [para 6] the central government considers only the materials forwarded by the state government along with its recommendation. as rightly pointed out, if the recommendation of the state government cannot be upheld in law, all consequential orders including the subsequent approval by the central government are also liable to be quashed. we reject the request for remitting the matter to the central government for its decision. --[para 56] held : in the light of the above discussion, the impugned order of the division bench of the high court dated 05.06.2009 in writ appeal no. 5084 of 2008 and allied matters as well as the decision of the state government dated 26/27.02.2002 and the subsequent decision of the central government dated 29.07.2003 are quashed. we direct the state government to consider all applications afresh in light of our interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules and make a recommendation to the central government within a period of four months from the date of receipt of the copy of this judgment. it is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the state government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. the state government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. all the appeals are allowed to the extent mentioned above. no costs.[para 57,58]order on limited departmental competition under rule 72 of rpf rules, 1987 for promotion to the rank of asi/rpf.as per this office order no. sc.30/19/34-e/asi-72/2005 dated 30.06.2006 a departmental promotion committee consisting of (i) sri pranav kumar, sr. sc/rpf/hwh-i (ii) sri s.r. gandhi, dsc/hwh-ii and (iii) sri l. k. bandia, asc-ii/sdah was formed for holding limited departmental competition to the rank of asi. sri pranab kumar, sr.sc/hwh-i being the senior most of the three members was ordered to assume the role of the chairman of the committee.however, on receipt of a complaint alleging anomalies in selection the vigilance department conducted an enquiry on the selection proceedings. during enquiry some lapses have been detected.on perusal of the vigilance report, dg/rpf has cancelled the selection proceedings.hence the entire process so far initiated for the departmental promotion to the rank of asi under rule 72 of rpf rules, 1987 vide this office letter no. sc.30/19/34-e/asi-72/2005 dated 30.06.2006 and 13.01.2006 as well as the panel published vide this office force order no. 162/2007 dated 25.05.2007 stands cancelled.sd/-(s.c. sinha) chief security commissioner/rpfeastern railway/kolkataeastern railwayno:sc.30/19/34-e/asi/2005(pt.ii) kolkata, dated:22.01.200811. in the aforesaid order dated 22nd january, 2008, chief security commissioner, railway protection force, eastern railway specifically mentioned that on receipt of a complaint alleging anomalies in selection, the vigilance department conducted an enquiry and during enquiry some lapses have been detected. it has also been mentioned that on perusal of the vigilance report, d.g., r.p.f. had cancelled the selection proceedings.12. it has been argued on behalf of the appellants that the learned single judge dismissed the writ petitions without looking into the vigilance report and only relying on the submissions of the learned counsel of the respondent authorities. the learned counsel of the appellants submitted that the appellants were duly selected for the promotional post of assistant sub-inspector, railway protection force, eastern railway after passing all the required tests.13. the respondent authorities, however, produced the vigilance report before us and a copy of the same was also handed over to the learned counsel of the appellants. the learned counsel of the appellants submitted written comments on the vigilance report before us.14. mr. ashok de, learned senior counsel of the appellants submitted that there was no logical and justiciable reason to cancel the entire selection process even on the basis of the vigilance report. mr. de further submitted that in the present case, no allegation was ever made regarding adoption of unfair means or mass copying or leakage of question papers etc in respect of the written test. according to mr. de, entire selection process was cancelled in absence of any valid and proper reason. mr. de also submitted that the superior authorities of the railway protection force in an unfortunate manner cancelled the entire selection process upon placing reliance on the vigilance report and without any application of mind. referring to the written comments submitted on behalf of the appellants in respect of the aforesaid vigilance report mr. de submitted that the allegations made in the said vigilance report are mostly invalid, improper and vague.15. mr. de specifically urged before this court that the vigilance report itself was prepared without considering the actual relevant data and rules. therefore, according to the learned senior counsel of the appellants, cancellation of the entire selection process relying upon the vague and fanciful report of the vigilance department is an unjust and illogical action on the part of the respondent-railway protection force authorities. the learned senior counsel of the appellants specifically submitted before us that the entire selection process has been cancelled in absence of proper materials and valid reasons.16. mr. p.k. mallick, learned senior counsel of the respondents submitted that the empanelment of a candidate does not create any right of appointment to the post.17. mr. de, however, submitted that empanelment although does not create any right, the same does not mean that the authority can cancel a panel and deny appointment of an empanelled candidate without any justiciable reason. the learned senior counsel of the appellants referred to and relied on a decision of the supreme court in the case of r.s. mittal v. union of india reported in : 1995 supp (2) scc 230.18. mr. de also submitted that the respondent authorities herein totally misdirected itself and took an extremely unreasonable decision by canceling the selection of the untainted candidates and, therefore, such an action cannot be approved by any court of law. mr. de referred to and relied on a decision of the supreme court in the case of union of india and ors. v. rajesh p.u., puthuvalnikathu and anr. reported in : (2003) 7 scc 285. mr. de also referred to and relied on another decision of the supreme court in the case of m.v. thimmaiah and ors. v. union public service commission and ors. reported in : (2008) 2 scc 119 in support of his aforesaid submissions.19. mr. mallick, learned senior counsel of the respondents referred to and relied on a decision of the supreme court in the case of aryavrat gramin bank v. vijay shankar shukla reported in (2007) 12 scc 413 and submitted that mere inclusion of name in the panel cannot confer any right of appointment to a post.20. scrutinising the papers submitted on behalf of the vigilance department we find that the chief vigilance inspector (a)/e.r. submitted final inspection report wherein several serious irregularities in the selection process at the instance of the chairman of the selection committee namely, sri pranav kumar have been specifically mentioned. some of the major irregularities specifically mentioned in the said inspection report by the chief vigilance inspector (a)/e.r. are set out hereunder:9.6. major irregularities found in the part of sri pranav kumar are as follows:i. he had not followed the extant rules and procedures at different stages while conducting the examination. kept no records of tenders/quotations, bills etc. for printing of answer scripts from outside market. answer scripts printed were not in prescribed format.ii. he had not prepared any condified and decoded lists of candidates violating cpo/si 217/99.iii. he had not maintained any accountal of answer scripts and question papers etc. unused 168 nos. answer scripts are not available with sr. sc/hwh-i office (no. of eligible candidates = 597, candidates appeared = 429)iv. question papers were printed by him well in advance, which is against the prevailing practice in eastern railway.v. ...vi ...vii ...viii. ...ix. tabulations for field tests and viva voce days were not written on the actual day of the examinations held and the committee members signed the same without any dates. it is a serious violation of cpo/si 217/99 under para 11.3 note (6) . again final tabulation of the outdoor test (dates not mentioned) has been signed by sri pranav kumar only which should have been signed jointly by other members also.x. the entire examination was conducted with the help of unauthorized personnel for which no official records were maintained. no formal orders/appointment letters were issued to the invigilating officials. no invigilating officials had signed in any of the official documents. no invigilators from the school side were allowed in the examination halls.xi. he had arranged to distribute the answer sheets to the candidates pre-signed thereby he had not verified the genuineness of the candidates as an invigilator.xii. ...xiii. ...xiv. taking the full advantage of non-availability of proper guidelines by allowing much higher time (3 hrs.) for a 40 marks written examination consisting 20 marks objective type questions, the spirit of competition has totally diluted. deliberately slow candidates were brought to competition and the sanctity of the examination was lost. further time of commencement and completion of the written examination on 12.11.2006 (sunday) was not recorded in any of the official documents.xv. ...xvi. by the way of which sri pranav kumar, the chairman of the selection committee has shown lack of devotion to his duties which has left scopes for subsequent manipulations with malafide intentions.21. the final inspection report of the aforesaid chief vigilance inspector (a)/e.r. was thereafter reviewed, consolidated and signed by the vigilance officer wherein the irregularities in the selection process were elaborately discussed and summarized in a note. some of the irregularities mentioned in the said note by the vigilance officer are set out hereunder:note1. ...2. ...3. ...4. ...5. ...6. ...7. no invigilator was officially booked for written test on 12.11.06 and none had signed in any of the documents in the examination hall. there was no official booking in writing available in the concerned file in respect of the so called invigilators. none of the candidates had put any date against their signatures on the attendance sheets. there has been no counter-signatures of any officials/invigilators in that sheet for authentication purpose. it has been gathered that although charge of rs. 8/- per candidate was given to belur high school, the venue of the examination no invigilator from the school side was present in any of the rooms during the examination.8. ...9. as per extant rule, the selection of asi/rpf was to be held on a question paper consisting of 40 marks in the written/indoor test. out of 40 marks, objective type questions (one word answer, fill in the blanks etc.) are required to be set for at least 50% marks i.e. 20 marks. but the question setter has allowed 3 hours time for answering this question paper of 40 marks. normally, in other various selections of other departments, for a question paper of 100 marks, 3 hours time is allotted. during investigation it is found that due to absence of any guidelines regarding time to be allotted for 40 marks question paper, the question setter, it is felt, has allotted a unduly long time of three hours to the examinees. this being a competitive examination (ldce) - the essence here is to select the fittest candidates only. since the time was given three hours, all the candidates have utilized that time for completing answering. so, if the time is not allowed commensurate with the marks (40 marks), chances of getting the fittest candidates become less.10. ...11. 12. 13. moreover, from the relevant selection file and other related documents supplied from the csc office, no document like codification list after giving dummy numbers to candidates after the written examination was found. neither, the tabulation statements of the evaluators after evaluation of copies by them were also found in the concerned file. even the decodification list vis--vis marks obtained by each candidate was not found. all these formalities were very integral part in the process of any selection to be done by the chairman of the selection committee and the respective evaluators. sri pranav kumar, chairman of the selection committee vide answers to q. 35 & 37 during his clarification confirmed that he did not prepare any codification as well as decodification lists, neither the evaluators had submitted tabulation sheets at the time of submission of evaluated answer sheets to the chairman of the selection committee. this is again infringement of instructions laid down at note 5 under para 9.3 of cpo si 217/99.14. the answer sheets used in the written test were full of deficiencies. there was no provision for tabulation by the evaluator. even there was no provision of invigilator's signature on the flyleaf. the answer sheets were prepared in the office of sri pranab kumar, the then sr. dsc/hwh-i. even no accountal towards number of copies made etc. had been kept in his office. during clarification sri pranab kumar confirmed that these copies were made in his office after purchasing stationeries from open market. but no such expenditure was booked in the imprest bill for the said period as clarified.22. apart from the aforesaid irregularities it has also been mentioned in the said vigilance report that atleast 9 out of the 28 selected candidates have close connections with the members of the selection committee.23. in view of the detection of the serious irregularities in the selection process by the vigilance department, director general, railway protection force, ultimately cancelled the selection procedure.24. the learned single judge while deciding the issues raised in the writ petition also considered the vigilance report and other relevant materials as disclosed by the parties and ultimately came to the conclusion that the action taken by the respondent authorities does not suffer from any infirmity or impropriety.25. we also cannot ignore the serious irregularities and illegalities in the selection process as have been specifically mentioned in the vigilance report. those irregularities, in our opinion, are such that it is impossible to weed out the beneficiaries of the irregularities and/or illegalities. therefore, it is not possible to avoid cancellation of the entire selection process in the facts of the present case.26. categorical findings of the chief vigilance inspector (a)/e.r. with regard to widespread illegalities, irregularities and infirmities in the selection process cannot be ignored by the competent authority and in the present case, we are satisfied that the competent authority had no other option but to take an extreme step by cancelling the entire selection process upon considering the magnitude of irregularities as specifically mentioned in the vigilance report.27. the decisions cited by mr. de, learned senior counsel of the appellants have no manner of application in the facts of the present case.28. for the reasons discussed hereinabove, we are of the opinion that the competent authority of the railway protection force namely, the director general, railway protection force, has rightly decided to cancel the selection process on detection of the serious irregularities as specifically mentioned in the vigilance report.29. the learned single judge, therefore, did not commit any mistake in approving the actions of the competent authority namely, the director general, railway protection force, regarding cancellation of the entire selection process.30. we do not find any error and/or infirmity and/or illegality in the decision of the learned single judge.31. therefore, we affirm the judgment and order under appeal passed by the learned single judge and dismiss both the appeals since we do not find any merit in the same.32. in the facts of the present case, there will be, however, no order as to costs.33. let urgent xerox certified copy of this judgment and order, if applied for, be given to the learned advocates of the parties on usual undertaking.kishore kumar prasad, j.34. i agree.

Judgment:
ORDER

ON LIMITED DEPARTMENTAL COMPETITION UNDER RULE 72 OF RPF RULES, 1987 FOR PROMOTION TO THE RANK OF ASI/RPF.

As per this office order No. SC.30/19/34-E/ASI-72/2005 dated 30.06.2006 a departmental promotion committee consisting of (i) Sri Pranav Kumar, Sr. SC/RPF/HWH-I (ii) Sri S.R. Gandhi, DSC/HWH-II and (iii) Sri L. K. Bandia, ASC-II/SDAH was formed for holding limited departmental competition to the rank of ASI. Sri Pranab Kumar, Sr.SC/HWH-I being the senior most of the three members was ordered to assume the role of the Chairman of the committee.

However, on receipt of a complaint alleging anomalies in selection the Vigilance Department conducted an enquiry on the selection proceedings. During enquiry some lapses have been detected.

On perusal of the Vigilance report, DG/RPF has cancelled the selection proceedings.

Hence the entire process so far initiated for the departmental promotion to the rank of ASI under Rule 72 of RPF Rules, 1987 vide this office letter No. SC.30/19/34-E/ASI-72/2005 dated 30.06.2006 and 13.01.2006 as well as the panel published vide this office Force Order No. 162/2007 dated 25.05.2007 stands cancelled.

Sd/-

(S.C. Sinha)

Chief Security Commissioner/RPF

Eastern Railway/Kolkata

Eastern Railway

No:SC.30/19/34-E/ASI/2005(Pt.II) Kolkata, Dated:22.01.2008

11. In the aforesaid order dated 22nd January, 2008, Chief Security Commissioner, Railway Protection Force, Eastern Railway specifically mentioned that on receipt of a complaint alleging anomalies in selection, the Vigilance Department conducted an enquiry and during enquiry some lapses have been detected. It has also been mentioned that on perusal of the Vigilance Report, D.G., R.P.F. had cancelled the selection proceedings.

12. It has been argued on behalf of the appellants that the learned Single Judge dismissed the writ petitions without looking into the Vigilance Report and only relying on the submissions of the learned Counsel of the respondent authorities. The learned Counsel of the appellants submitted that the appellants were duly selected for the promotional post of Assistant Sub-Inspector, Railway Protection Force, Eastern Railway after passing all the required tests.

13. The respondent authorities, however, produced the Vigilance Report before us and a copy of the same was also handed over to the learned Counsel of the appellants. The learned Counsel of the appellants submitted written comments on the Vigilance Report before us.

14. Mr. Ashok De, learned Senior Counsel of the appellants submitted that there was no logical and justiciable reason to cancel the entire selection process even on the basis of the vigilance report. Mr. De further submitted that in the present case, no allegation was ever made regarding adoption of unfair means or mass copying or leakage of question papers etc in respect of the written test. According to Mr. De, entire selection process was cancelled in absence of any valid and proper reason. Mr. De also submitted that the superior authorities of the Railway Protection Force in an unfortunate manner cancelled the entire selection process upon placing reliance on the vigilance report and without any application of mind. Referring to the written comments submitted on behalf of the appellants in respect of the aforesaid vigilance report Mr. De submitted that the allegations made in the said vigilance report are mostly invalid, improper and vague.

15. Mr. De specifically urged before this Court that the vigilance report itself was prepared without considering the actual relevant data and rules. Therefore, according to the learned Senior Counsel of the appellants, cancellation of the entire selection process relying upon the vague and fanciful report of the Vigilance Department is an unjust and illogical action on the part of the respondent-Railway Protection Force authorities. The learned Senior Counsel of the appellants specifically submitted before us that the entire selection process has been cancelled in absence of proper materials and valid reasons.

16. Mr. P.K. Mallick, learned Senior Counsel of the respondents submitted that the empanelment of a candidate does not create any right of appointment to the post.

17. Mr. De, however, submitted that empanelment although does not create any right, the same does not mean that the authority can cancel a panel and deny appointment of an empanelled candidate without any justiciable reason. The learned Senior Counsel of the appellants referred to and relied on a decision of the Supreme Court in the case of R.S. Mittal v. Union of India reported in : 1995 Supp (2) SCC 230.

18. Mr. De also submitted that the respondent authorities herein totally misdirected itself and took an extremely unreasonable decision by canceling the selection of the untainted candidates and, therefore, such an action cannot be approved by any court of law. Mr. De referred to and relied on a decision of the Supreme Court in the case of Union of India and Ors. v. Rajesh P.U., Puthuvalnikathu and Anr. reported in : (2003) 7 SCC 285. Mr. De also referred to and relied on another decision of the Supreme Court in the case of M.V. Thimmaiah and Ors. v. Union Public Service Commission and Ors. reported in : (2008) 2 SCC 119 in support of his aforesaid submissions.

19. Mr. Mallick, learned Senior Counsel of the respondents referred to and relied on a decision of the Supreme Court in the case of Aryavrat Gramin Bank v. Vijay Shankar Shukla reported in (2007) 12 SCC 413 and submitted that mere inclusion of name in the panel cannot confer any right of appointment to a post.

20. Scrutinising the papers submitted on behalf of the Vigilance Department we find that the Chief Vigilance Inspector (A)/E.R. submitted final Inspection Report wherein several serious irregularities in the selection process at the instance of the Chairman of the Selection Committee namely, Sri Pranav Kumar have been specifically mentioned. Some of the major irregularities specifically mentioned in the said Inspection Report by the Chief Vigilance Inspector (A)/E.R. are set out hereunder:

9.6. Major irregularities found in the part of Sri Pranav Kumar are as follows:

I. He had not followed the extant rules and procedures at different stages while conducting the examination. Kept no records of tenders/quotations, bills etc. for printing of answer scripts from outside market. Answer scripts printed were not in prescribed format.

II. He had not prepared any condified and decoded lists of candidates violating CPO/SI 217/99.

III. He had not maintained any accountal of answer scripts and question papers etc. Unused 168 Nos. answer scripts are not available with Sr. SC/HWH-I office (No. of eligible candidates = 597, candidates appeared = 429)

IV. Question papers were printed by him well in advance, which is against the prevailing practice in Eastern Railway.

V. ...

VI ...

VII ...

VIII. ...

IX. Tabulations for field tests and viva voce days were not written on the actual day of the examinations held and the committee members signed the same without any dates. It is a serious violation of CPO/SI 217/99 under para 11.3 Note (6) . Again final tabulation of the outdoor test (dates not mentioned) has been signed by Sri Pranav Kumar only which should have been signed jointly by other members also.

X. The entire examination was conducted with the help of unauthorized personnel for which no official records were maintained. No formal orders/appointment letters were issued to the invigilating officials. No invigilating officials had signed in any of the official documents. No invigilators from the school side were allowed in the examination halls.

XI. He had arranged to distribute the answer sheets to the candidates pre-signed thereby he had not verified the genuineness of the candidates as an invigilator.

XII. ...

XIII. ...

XIV. Taking the full advantage of non-availability of proper guidelines by allowing much higher time (3 Hrs.) for a 40 marks written examination consisting 20 marks objective type questions, the spirit of competition has totally diluted. Deliberately slow candidates were brought to competition and the sanctity of the examination was lost. Further time of commencement and completion of the written examination on 12.11.2006 (Sunday) was not recorded in any of the official documents.

XV. ...

XVI. By the way of which Sri Pranav Kumar, the chairman of the selection committee has shown lack of devotion to his duties which has left scopes for subsequent manipulations with malafide intentions.

21. The final Inspection Report of the aforesaid Chief Vigilance Inspector (A)/E.R. was thereafter reviewed, consolidated and signed by the Vigilance Officer wherein the irregularities in the selection process were elaborately discussed and summarized in a note. Some of the irregularities mentioned in the said note by the Vigilance Officer are set out hereunder:

NOTE

1. ...

2. ...

3. ...

4. ...

5. ...

6. ...

7. No invigilator was officially booked for written test on 12.11.06 and none had signed in any of the documents in the examination hall. There was no official booking in writing available in the concerned file in respect of the so called invigilators. None of the candidates had put any date against their signatures on the attendance sheets. There has been no counter-signatures of any officials/invigilators in that sheet for authentication purpose. It has been gathered that although charge of Rs. 8/- per candidate was given to Belur High School, the venue of the examination no invigilator from the school side was present in any of the rooms during the examination.

8. ...

9. As per extant rule, the selection of ASI/RPF was to be held on a question paper consisting of 40 marks in the written/indoor test. Out of 40 marks, objective type questions (one word answer, fill in the blanks etc.) are required to be set for at least 50% marks i.e. 20 marks. But the question setter has allowed 3 hours time for answering this question paper of 40 marks. Normally, in other various selections of other departments, for a question paper of 100 marks, 3 hours time is allotted. During investigation it is found that due to absence of any guidelines regarding time to be allotted for 40 marks question paper, the question setter, it is felt, has allotted a unduly long time of three hours to the examinees. This being a competitive examination (LDCE) - the essence here is to select the fittest candidates only. Since the time was given three hours, all the candidates have utilized that time for completing answering. So, if the time is not allowed commensurate with the marks (40 marks), chances of getting the fittest candidates become less.

10. ...

11.

12.

13. Moreover, from the relevant selection file and other related documents supplied from the CSC office, no document like codification list after giving dummy numbers to candidates after the written examination was found. Neither, the tabulation statements of the evaluators after evaluation of copies by them were also found in the concerned file. Even the decodification list vis--vis marks obtained by each candidate was not found. All these formalities were very integral part in the process of any selection to be done by the Chairman of the selection committee and the respective evaluators. Sri Pranav Kumar, chairman of the selection committee vide answers to Q. 35 & 37 during his clarification confirmed that he did not prepare any codification as well as decodification lists, neither the evaluators had submitted tabulation sheets at the time of submission of evaluated answer sheets to the chairman of the selection committee. This is again infringement of instructions laid down at Note 5 under para 9.3 of CPO SI 217/99.

14. The answer sheets used in the written test were full of deficiencies. There was no provision for tabulation by the evaluator. Even there was no provision of invigilator's signature on the flyleaf. The answer sheets were prepared in the office of Sri Pranab Kumar, the then Sr. DSC/HWH-I. Even no accountal towards number of copies made etc. had been kept in his office. During clarification Sri Pranab Kumar confirmed that these copies were made in his office after purchasing stationeries from open market. But no such expenditure was booked in the imprest bill for the said period as clarified.

22. Apart from the aforesaid irregularities it has also been mentioned in the said Vigilance Report that atleast 9 out of the 28 selected candidates have close connections with the members of the selection committee.

23. In view of the detection of the serious irregularities in the selection process by the Vigilance Department, Director General, Railway Protection Force, ultimately cancelled the selection procedure.

24. The learned Single Judge while deciding the issues raised in the writ petition also considered the Vigilance Report and other relevant materials as disclosed by the parties and ultimately came to the conclusion that the action taken by the respondent authorities does not suffer from any infirmity or impropriety.

25. We also cannot ignore the serious irregularities and illegalities in the selection process as have been specifically mentioned in the Vigilance Report. Those irregularities, in our opinion, are such that it is impossible to weed out the beneficiaries of the irregularities and/or illegalities. Therefore, it is not possible to avoid cancellation of the entire selection process in the facts of the present case.

26. Categorical findings of the Chief Vigilance Inspector (A)/E.R. with regard to widespread illegalities, irregularities and infirmities in the selection process cannot be ignored by the competent authority and in the present case, we are satisfied that the competent authority had no other option but to take an extreme step by cancelling the entire selection process upon considering the magnitude of irregularities as specifically mentioned in the Vigilance Report.

27. The decisions cited by Mr. De, learned Senior Counsel of the appellants have no manner of application in the facts of the present case.

28. For the reasons discussed hereinabove, we are of the opinion that the competent authority of the Railway Protection Force namely, the Director General, Railway Protection Force, has rightly decided to cancel the selection process on detection of the serious irregularities as specifically mentioned in the Vigilance Report.

29. The learned Single Judge, therefore, did not commit any mistake in approving the actions of the competent authority namely, the Director General, Railway Protection Force, regarding cancellation of the entire selection process.

30. We do not find any error and/or infirmity and/or illegality in the decision of the learned Single Judge.

31. Therefore, we affirm the judgment and order under appeal passed by the learned Single Judge and dismiss both the appeals since we do not find any merit in the same.

32. In the facts of the present case, there will be, however, no order as to costs.

33. Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.

Kishore Kumar Prasad, J.

34. I agree.