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CASE NO.: Appeal (civil)  3411-3421 of 2005

PETITIONER: Inderpreet Singh Kahlon & Ors.

RESPONDENT: State of Punjab & Ors.

DATE OF JUDGMENT: 03/05/2006

BENCH: Dalveer Bhandari

JUDGMENT: J U D G M E N T [WITH C.A. No. 3422/2005, 3410/2005, 3409/2005,  3405-3408/2005, 3456-3459/2005, 3446-3447/2005,  3402/2005, 3449-3455/2005, 3463-3464/2005,  3460/2005, 3401/2005, 3445/2005, 3399/2005,  3404/2005, 3444/2005, 3441/2005, 3439/2005, 3428- 3436/2005, 3440/2005, 3438/2005, 3442/2005,  3437/2005, 3403/2005, 3427/2005, 3461/2005,  3400/2005, 3477/2005, 3475/2005, W.P. (C) No.  14/2004, C.A. No. 3423/2005, 3448/2005, 3472- 3474/2005, 3489/2005 and 3491/2005]

DALVEER BHANDARI, J.         I had the benefit of reading the erudite judgment of my  learned brother Justice Sinha.  I concur with the conclusions  and findings arrived at by him on all the issues except on the  issue of propriety of hearing of the matter by the judges (who  were on the Committee), after the appellants gave clear  consent to the hearing of cases by the full bench even before  the commencement of the hearing of cases.  I would therefore,  like to write a separate judgment.         These appeals emanate from a Full Bench judgment of  Punjab and Haryana High Court in Civil Writ Petition No. 8421  of 2002 along with other connected matters.                  The founding fathers of the Constitution perhaps, in their  wildest dreams, could not have visualized that the people who  are expected to strictly adhere to the constitutional values and  guide the destiny of the Nation, in times to come would malign  and denigrate the system to such an extent that for his grave  misdeeds, the constitutional authority itself, in the larger  public interest would be required to be put behind the bars.    The Chairman of the Punjab Public Service Commission is an  important constitutional authority.                   This case relates to a period when one Ravinderpal Singh  Sidhu (in short, R.S. Sidhu) was the Chairman of the Punjab  Public Service Commission (hereinafter called the  Commission) from September 1996 to 21.3.2002.  His  clandestine activities and misdeeds reached the pinnacle of  disgrace, ignominy, dishonour, degradation and humiliation.   Perhaps, no one could have polluted the entire system in a  greater measure.  On 25.3.2002 an FIR was registered at  Police Station, Mohali under section 7 read with section 13(2)  of the Prevention of Corruption Act, 1988 in relation to the  trap organized in which R.S. Sidhu was caught red-handed  accepting a bribe of Rs. 5 lakhs.         

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       The statement of one of the accused Jagman Singh (who  later turned as an approver) was recorded under Section 164  CrPC on 24.1.2002 and 24.4.2002.  In three days from  17.4.2002 to 19.4.2002, more than Rs. 16 crores were  recovered from the lockers and the bank accounts of the  relations of R.S.  Sidhu.      According to the State, a total cash  amount, securities and properties worth about Rs. 22 crores  were recovered.   Out of the said amount, a sum of Rs. 1.28  crores was recovered from the house of Jagman Singh.  In the  history of this country, there may not have been many cases of  the Prevention of Corruption Act of this magnitude, where  such huge amounts were recovered.   All this amount was  collected by R.S.Sidhu in lieu of ensuring  recruitment/appointments to various offices of the PCS  (Executive Branch), allied services and PCS (Judicial Branch)  in the State of Punjab from the prospective candidates.         This unfortunate episode teaches us an important lesson  that before appointing the constitutional authorities, there  should be a thorough and meticulous inquiry and scrutiny  regarding their antecedents.   Integrity and merit have to be  properly considered and evaluated in the appointments to  such high positions.  It is an urgent need of the hour that in  such appointments absolute transparency is required to be  maintained and demonstrated.   The impact of the deeds and  misdeeds of the constitutional authorities (who are highly  placed) affect a very large number of people for a very long  time, therefore, it is absolutely imperative that only people of  high integrity, merit, rectitude and honesty are appointed to  these constitutional positions.         The following vacancies which arose during the tenure of  R.S. Sidhu as Chairman of the Punjab Public Service  Commission are under challenge.            On the Administrative side the following vacancies arose: Class I: Direct Recruits:                       28 vacancies Class II (allied etc): Direct Recruits: 63 vacancies Class I: Nominated:                             18 vacancies Total                                           109  

Similarly, on the Judicial Side the following vacancies  arose: Class I for 1998 vacancies:             21 Class I for 1999 vacancies      :               14 Class I for 2000 vacancies:               8 Class I for 2001 vacancies:             21 Total                                           64

       "By an advertisement issued in February,  1998, the Commission invited applications for  recruitment against 28 vacancies in PCS (Executive  branch) and 63 vacancies in Allied Services.  In all,  13094 candidates appeared in the preliminary  examination held on 29.3.1998.  Out of them, 1097  candidates were declared successful.  The main  written examination was held between 2.7.1998 and  2.8.1998 and the result was declared on 25.1.1999.   273 candidates were called for interview which were  held between 20.4.1999 and 22.6.1999.  The final  result was declared on 11.7.1999 and the  successful candidates were appointed to PCS  (Executive branch) and Allied Services in  September, 1999 and thereafter.

Recruitment to PCS (Executive Branch)  by nomination made in terms of Rules 8  to 11 and 15 of the Punjab Civil Service

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(Executive Branch (Class-I) Rules, 1976  (for short, the 1976 Rules’

For the year 1994: There were three vacancies for Register A-I which  were to be filled from amongst Tehsildars/Naib  Tehsildars.  There were two vacancies for Register  A-II which were to be filled from amongst Civil  Secretariat Ministerial Staff.  There was one vacancy  for Register A-III which was to be filled from  amongst the Excise and Taxation Officers/Block  Development Officers/District Development and  Panchayat Officers.  There was one vacancy for  Register ’C’ which was to be filled from amongst the  officers/officials working in subordinate offices.   Interviews for selection for the vacancies to be filled  from the four registers were held on 6.4.1999,  28.7.1999 and 29.7.1999, 4.1.1999 and 7.4.1999  respectively.

For the year 1996:

       There were five vacancies for Register A-I.   There was no vacancy for Register A-II.  There were  two vacancies for Register A-III and there were three  vacancies for Register ’C’.  Interviews for selection  for appointment to Register A-I were held on  26.5.1999.  Interviews for selection for appointment  to Register A-III from amongst District Development  and Panchayat Officers were held on 29.5.1999.   For selection from amongst Excise and Taxation  Officers, interviews were held on 29.6.1999.  For  Register ’C’, interviews were held on 4.6.1999 and  7.6.1999.

PCS (Judicial Branch) made in terms of  Punjab Civil Service (Judicial Branch)  Rules, 1951 (for short, ’the 1951 Rules’)

       In all, four selections were made for  recruitment to PCS (Judicial Branch) during the  tenure of R.S. Sidhu as Chairman of the  Commission. The details of the vacancies for which  the selections were made are as under:

                                Year                    Number of vacancies                          1998                            21                 1999                            14                 2000                             8                 2001                            21

       The candidates selected on the  recommendations made by the Commission except  those recommended in 2001 were appointed to the  service after obtaining approval of the High Court  on administrative side."

       It may be pertinent to mention that two FIRs were  registered.  FIR No. 7 was registered at Police Station, Mohali  under Section 7 read with Section 13(2) of the Prevention of  Corruption Act, 1988 on 25.3.2002 and the FIR No. 24 was

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registered on 30.4.2002 against R.S.  Sidhu and Pritpal Singh,  the then Secretary of the Commission in the context of large  scale fraud committed in the selections made by the  Commission.  On the basis of the material on record, it is  revealed that a number of candidates paid money to R.S.   Sidhu for ensuring selections in the examination and  appointment to the PCS (Executive Branch), Allied Services  and PCS (Judicial Branch) and in the raids, as mentioned  earlier, a huge amount of money was recovered.         The Vigilance Bureau highlighted the following  irregularities committed by the Commission at the behest of  the then Chairman:         "(I)    The screening of answer sheets of  competitive examinations reveals that the favoured  and tainted candidates were helped in written tests  in one way or another.  For instance some selective  candidates were helped by giving question papers  one night before the date of examinations and if the  candidates could not perform well in the written  examination, the examiners were asked to give  maximum marks to the favoured candidates,  irrespective of the matter contained in the answer  sheets and the hand writing being not legible.

       (ii)    The interview marks were tailored to help  the favoured and tainted candidates.  This was the  main criterion used by the Chairman of the  Commission for selection of desired candidates.   During the investigation of the case, this factor has  emerged very clearly and there is a strong evidence  in the case file.  The favoured candidates have been  given marks in the interview and the candidates  coming in the way of favoured candidates have been  given less marks in the interview to keep them way  down in the merit list.

       (iii)   While pursuing the list of candidates who  were interviewed by the Chairman and the  Members, the most astonishing feature is that in  more than 95% cases, Chairman and the Members  have allotted similar marks to the candidates after  interview which is impossible as all the Members  and the Chairman were supposed to test the  capability of the candidates in their individual  capacities.  It could never have been a consensus  gradation.

       (iv)    In many of the selections there was a one  Member Board.

       (v)     The procedure for calling experts, paper  setting and paper setters, examiners (Markers etc.)  were exclusively in the hands of the Chairman as  reported by the Secretary, Punjab Service  Commission and no such record is available in the  Commission, whereas such record can only be  destroyed after a lapse of 5 years as per instructions  of the PPSC.

       (vi)    The selections, which are not based on  the competitive examination, are based on pass  marks (percentage of basic degree + interview  marks).  The procedure is such that the difference  in pass marks can be easily covered by interview  marks.  For example, if 3 candidates have 50%,

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60% and 70% marks in Graduation, their base  marks (40% of the percentage in basic degree) will  be 20, 24 and 28 respectively.  The marks allotted  for interview can easily cover the gap of 8 marks  between the candidates getting the lowest and  highest base marks.

       (vii)   In some cases the interview marks are  out of range of grade marks.  For example, B+ (26 to  30) grade is given by the expert but the Board gave  him/her 32 marks.  This irregularity may be due to  clerical mistake committed by the PPSC staff and is  therefore being verified.

       (viii)  There is some evidence on the file that  expert(s) was/were asked to be selective."

       On consideration of the entire material placed before it,  the State Government decided to cancel the entire selection  made for recruitment of PCS (Executive Branch) and Allied  Services in 1998.  Consequently, a general order dated  24.8.2002 was issued terminating the services of the  appellants.         Regarding Judicial Officers appointed to PCS (Judicial  Branch), the High Court constituted a sub-committee of five  Judges to scrutinize the record of selection.   After going  through the answer sheets of the candidates, who were  selected on the basis of examinations held for recruitment  against the vacancies in the years 1999, 2000 and 2001, the  sub-committee submitted a report dated 30.5.2002 with the  observation that, interpolations and cuttings were made in the  marks awarded to some of the candidates and their marks  were increased and that the assessment made by the  examiners was far from fair.  The report of the sub-committee  was accepted by the Full Bench of the High Court and a  recommendation was made to the government to terminate the  services of those who were appointed on the basis of the  selections made during the tenure of R.S. Sidhu.  On a  reference made by the State Government, the second sub- committee examined the answer sheets of some of those who  were selected as well as the answer sheets of those who were  not selected and observed that a deliberate attempt had been  made to give higher marks to some undeserving candidates  and at the same time, lower marks were awarded to more  meritorious candidates.  The report submitted by the second  sub-committee was also approved by the Full Court.   On the  recommendations made by the High Court, the State  Government terminated the services of those who were  appointed on the basis of the selections made by the  Commission against the vacancies of the years 1998, 1999  and 2000.         All the appointments were terminated on the  recommendations of the High Court on 27.9.2002. Similarly,  the appointments of nominated Executive Class I Officers were  terminated by order dated 23.5.2002.         These appellants have filed a number of writ petitions  before the Punjab & Haryana High Court which were  dismissed by the impugned judgment of the Full Bench being  devoid of any merit.            These appellants, being aggrieved by the said judgment of  the Full Bench, have now approached this Court by filing  these special leave petitions.          After hearing all concerned,  this Court granted special leave petitions and these appeals  have now been placed for final disposal before this Court.  

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       Mr. Rajiv Dhawan, learned Senior Advocate and a large  number of counsel have appeared on behalf of the appellants.   Submissions made by the appellants are summarized as  under: (I)     The appellants have challenged the impugned order  mainly on the grounds of violation of articles 14, 21 and 311 of  the Constitution and the breach of the principles of natural  justice.   (II)    Some of the appellants have submitted that they had  completed 3 years probation and according to Rule 23 of the  1976 Rules they were deemed to have been confirmed in their  services and their services could not be terminated without  holding regular enquiry in accordance with the Punjab Civil  Services (Punishment and Appeal) Rules, 1970 (for short, ’the  1970 Rules’) read with Article 311 of the Constitution of India  and, in any case, Rule 23 could not have been invoked for  dispensing with their services because their work, conduct  and performance had remained satisfactory during the period  of probation.  (III)   The appellants have also submitted that both the  Vigilance Bureau and the Chief Secretary had decided the  issue of mass dismissal orders in less than 24 hours  without  proper application of mind.  It was also submitted that the  Screening Committee of 2004 showed that an exercise  separating tainted from the non-tainted candidates could be  done in two or three months.  It was submitted that the  decision of mass dismissal was passed on insufficient material  and without application of mind.    (IV)    Some of the appellants have submitted that their  academic records are very good and they were selected to PCS  (Executive Branch) and/or Allied Services and PCS (Judicial  Branch) on the basis of their academic records and their good  performance in the examinations held and they have nothing  to do with the illegalities, irregularities committed by R.S.   Sidhu during his tenure as the Chairman of the Punjab Public  Service Commission and, therefore, their appointments should  not be disturbed. (V)     Those appointed to PCS (Executive Branch) from  Registers A-I, A-II, A-III and ’C’ have averred that they were  selected on the basis of their outstanding service record and  the taint, if any, attached to the selections made for  appointment by the direct recruitment cannot affect their  selections.  The candidates belonging to the reserved  categories of Scheduled Castes, Backward Classes, Ex- servicemen, Freedom Fighters and Handicapped have averred  that they have nothing to do with the selections made by R.S.   Sidhu by taking bribe from the candidates or on account of  "Sifarish" and their services could not have been terminated  on the basis of the reports of the Vigilance Bureau. (VI)    The appellants have also challenged that there is no  definite or specific material available with the State  Government on the basis of which it could form a bonafide  opinion that selections were tainted and the reports prepared  by the Vigilance Bureau could not be relied upon for  terminating their services because the same were entirely  based on the statement of approvers recorded under Section  164 of the Code of Criminal Procedure. (VII)   It has also been submitted that the criminal  investigations were in relation to the Chairman, PPSC without  shedding light on nominated candidates. Even without getting  the interview details of nominated candidates the Vigilance  Bureau treated this as a case of mass corruption on  21.5.2002.  This action was clearly arbitrary and wholly  untenable.  (VIII)  The appellants submitted that there was no material   

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before the Committee on the basis of which the drastic order of  cancelling the selections of three batches comprising of 39  judicial officers could be made.  It was further submitted that  the examination of material including answer-sheets of  selected/non-selected candidates, statements of approvers  under Section 164 of the Code of Criminal Procedure was done  only in context of 1998 batch on its back reference from the  State Government. (IX)    The appellants further submitted that the Full Bench of  the High Court lost sight of the fact that there were four  separate batches in which four separate sitting High Court  judges participated as experts whose opinion was binding  under Rule 4 of Part C of the PCS (JB) Rules, 1951. There was  no allegation of any impropriety committed by the experts of  the Interview Board. (X)     The appellants also submitted that the fact finding  enquiry which came to the conclusion that the findings of  misconduct on the basis of which the services of the  appellants were terminated was conducted behind the back of  the appellants.  They were neither associated with the enquiry  nor was any material supplied to them before or after the  termination, to enable them from effectively rebutting the  findings.  The appellants were only permitted to  examine their  own answer-sheets in which no cutting/overwriting/  irregularity was found. (XI)    According to the appellants, the High Court erroneously  proceeded on the administrative side to presume that the mere  irregularity in 7 papers of 2001 batch meant irregularity of the  entire batch. On the basis of this presumption another  presumption was raised that there were irregularities in all the  four batches from 1998 to 2001. In the case of other selections  held by the PPSC under the Chairmanship of R.S. Sidhu, the  Government had undertaken to constitute two separate  committees which had gone into the record of over 3,500  candidates to ascertain the presence of any taint or otherwise.   In the present case, it was not impractical or impossible to  have conducted this exercise for the serving judicial officers  who were only 39 in number.  According to the appellants, the  action of cancelling was taken in extreme haste and without  any logical basis. (XII)   The appellants submitted that it was incumbent upon  the State Government to establish from the records that prior  to 23.5.2002 it had examined all the selections made during  the tenure of R.S. Sidhu and it was after such a detailed  consideration that it became apparent that the taint was only  in respect of the selections in the year 1998 which would  necessitate the extremely harsh and punitive decision to  terminate en masse selections of  all the candidates on the  ground that the entire selection process was vitiated. (XIII)  The appellants submitted that the selections were  vitiated because, according to the respondents, Mr. Sidhu  employed corrupt methods in the selection process of the  candidates.   From this criterion or yardstick, all the 3,446  selections made during the tenure of R.S. Sidhu would stand  ’tainted’ and the services of all these candidates are also liable  to be terminated. (XIV)           The appellants submitted that it was not a case of  large scale irregularities where it was impossible to separate  the tainted candidates from the non-tainted candidates. The  test for determining whether a set of facts qualifies to be a  case of large scale irregularities sustaining a decision to cancel  the entire selection was aptly stated by this Court in the case  of  Union of India v. Rajesh P.U. (2003) 7 SCC 285  in the  following words :         "In the light of the above and in the absence of

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any specific or categorical finding supported by any  concrete and relevant material that widespread  infirmities of an all-pervasive nature, which could  be really said to have undermined the very process  itself in its entirety or as a whole and it was  impossible to weed out the beneficiaries of one or  the other irregularities, or illegalities, if any, there  was hardly any justification in law to deny  appointment to the other selected candidates whose  selections were not found to be, in any manner,  vitiated for any one or the other reasons.  Applying  a unilaterally rigid and arbitrary standard to cancel  the entirety of the selections despite the firm and  positive information that except 31 of such selected  candidates, no infirmity could be found with  reference to others, is nothing but total disregard of  relevancies and allowing to be carried away by  irrelevancies, giving a complete go-by to contextual  considerations throwing to the winds the principle  of proportionality in going farther than what was  strictly and reasonably to meet the situation.  In  short, the competent authority completely  misdirected itself in taking such an extreme and  unreasonable decision of cancelling the entire  selections, wholly unwarranted and unnecessary  even on the factual situation found too, and totally  in excess of the nature and gravity of what was at  stake, thereby virtually rendering such decision to  be irrational."

       It is the sacred duty of the Court to sift the grain from the  chaff.  The expression "public interest" or "probity in  governance" cannot be put in a strait-jacket. "Public interest"  takes into its fold several factors. There cannot be any hard- and-fast rule to determine what is public interest. The  circumstances in each case would determine whether the  action was taken in public interest or was taken to uphold  probity in governance. (XV)    The appellants submitted that where there are  imputations against a key decision maker or a key decision,  every decision made by such decision maker during his period  of office is not necessarily tainted and to be set aside.  In fact,  the correct approach is to investigate the issues thoroughly  and to weed out the tainted decisions from the ones that are  not. (XVI) The impugned order of termination is also stigmatic.  The  order ostensibly discharged the appellants during the period of  probation but the order of discharge in fact was because of  serious allegations of corruption which appeared in the press  against the entire batch.  If the veil is lifted it will be seen that  the only reason why the appellants’s services have been  terminated is the so called misconduct attributed to the entire  batch.  Under these circumstances, since the order is  stigmatic in nature the same could not have been passed  without conducting an enquiry and giving the appellants an  opportunity of explaining their position.  The order is,  therefore, liable to be quashed. (XVII)  The passing of such an order at this stage of a  person’s career has serious consequences in the entire course  of the individual’s life.  Today, the appellants would have to  suffer a big stigma of having been dismissed from the service  on account of their being a part of so called tainted batch.   (XVIII) The appellants submitted that they have spent three  best years of their lives taking the departmental examinations  and serving the State.  Therefore, it is totally arbitrary and

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illegal on the part of the State Government to throw the  appellants out of job at this stage unceremoniously.  The order  is totally arbitrary and liable to be quashed on this ground. (XIX)           The order of termination is in clear violation of Rule  17 of the PCS (EB) (Class 1) Rules 1976 which stipulates thus  "the Govt. may at any time, for reasons to be recorded in  writing, remove the name of any person from any register of  accepted candidates; provided that before taking such action  the person concerned will be given an opportunity against the  action so proposed".

(XX)    The entire case of the respondent State is based on the  report of investigation made by the Vigilance Department,  which is primarily based upon the statement of the tout  turned approver and the matter is still sub-judice before the  learned Trial Court, hence there is no veracity of these  statements or reports in law and can never be the basis of  termination of services.  The report and the challan have been  presented by the Vigilance Department in the months of July  and August 2002 whereas, the impugned order of termination  was passed on 23.5.02.  

(XXI)   That the allegation of pushing up the unmeritorious  candidates with a purpose to facilitate their selections by  awarding them more marks in the interview is not  substantiated by the fact that a large number of candidates  who are not named in the FIR have also got very high/low  marks.  The suggestion of the State Government would in fact  amount to a proposition, that marks in the interview are  linked with the academic record of the candidate and any  discrepancy in the same would give rise to suspicion of taint.   If this was so then the entire objective of conducting an  interview is lost.  An interview is included in the selection  process so as to evaluate the personality, leadership quality  and ability to be a good administrator by the Selection Board.   It is not uncommon where academically sound candidates may  prove to be bad administrators due to lack of the above  mentioned qualities.  Thus, in case the argument of the State  is to be accepted, possibly no selection can hold good and taint  can be read into practically any selection process. (XXII)  Reliance has also been placed on the case of Union  of India v. Rajesh P.U., Puthuvalnikathu [(2003) 7 SCC  285].  In this case, applications were invited for filling up 134  posts of Constables by the Central Bureau of Investigation.   The selection process consisted of a written examination and  an interview followed by a physical fitness test.  However, the  selected candidates including the respondent were informed  that the selection list had been cancelled by the Special  Committee constituted to enquire into the allegations of  favouritism and nepotism on the part of the officers in  conducting the Physical Efficiency Test and irregularities  committed during the written exam.  The respondent  approached the High Court after his application was dismissed  by the Central Administrative Tribunal.   The Division Bench  after perusal of the Committee’s report and review of the entire  process categorically rejected allegations of  nepotism/favourtism and came to the conclusion that there  was no justification to cancel the entire selection when the  impact of irregularities which crept into evaluation on merits  could be identified specifically and was found, on a  reconsideration of the entire records, to have resulted in about  31 specific number of candidates being selected undeservedly  to the detriment of similar such number of candidates.    Repelling the plea that a person in the select list has no vested  right to get appointed and finding the cancellation of the entire

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selection arbitrary and unreasonable, the High Court allowed  the writ petition.    (XXIII) An appeal was preferred to this Court.  This Court  observed that applying a unilaterally rigid and arbitrary  standard to cancel the entirety of the selections despite the  firm and positive information that except 31 of such selected  candidates, no infirmity could be found with reference to  others, is nothing but total disregard of relevancies and  allowing to be carried away by irrelevancies, giving a complete  go-by to contextual considerations throwing to the winds the  principle of proportionality in going farther than what was  strictly and reasonably required to meet the situation.   In  short, the competent authority completely misdirected itself in  taking such an extreme and unreasonable decision of  cancelling the entire selections, which was wholly  unwarranted and unnecessary.  This Court also observed that  the High Court had adopted a practical, pragmatic, rational  and realistic solution to the problem and the appeal filed by  the Union of India was consequently dismissed. (XXIV)  The appellants have also submitted that nominated  candidates were entitled to protection under Article 311.  The  appellants have also placed reliance on a large number of  judgments of this Court which indicated that probationers  who have crossed the maximum period of probation were  deemed to be confirmed. (XXV)   The appellants have also submitted that there is a  clear difference between the proven case of mass cheating for  an examination and an unproven imputed charge of  corruption where the appointment of the civil servant is  involved.             In Anamika Mishra v. U.P.P.S.C. [(1990) Supp. SCC  692], this Court observed that when no defect was pointed out  in regard to the written examination and the sole objection  was confined to exclusion of a group of successful candidates  in the written examination from the interview, there was no  justification for cancelling the written part of the recruitment  examination.  On the other hand, the situation could have  been appropriately met by setting aside the recruitment and  asking for a fresh interview of all eligible candidates on the  basis of the written examination and select those who on the  basis of the written and the freshly-held interview became  eligible for selection.            In S.P. Biswas v. State Bank of India [1991 Supp (2)  SCC 354], there were allegations of unfair means adopted in  the examination.  The Bank got the enquiry conducted and  steps were taken to exclude the possibility of results being  affected by unfair means.  This Court approved the decision of  the High Court and observed that the relevant records  disclosed that an honest attempt was made on the part of the  management of the Bank to examine all the points raised in  the report and otherwise, and in cases where an element of  use of unfair means was found, a necessary action was taken.    (XXVI)  The appellants also submitted that, in the instant  case, the decisions were collegiate decisions by a number of  people and those decisions could not be set aside because of  the allegations against the Chairman of the Commission.  It  was submitted that this is not a mass cheating case but a  mass dismissal case based on mere allegations.  It was  submitted that for cause on imputations of corruption even  though the order of 23.5.2002 is "finally a dismissal  simpliciter".   The various cases of dismissals are based on  proper investigation or proven illegality, not mass dismissals  based merely on conjectures.   It was also submitted that the  officers of 1999 were targeted where others of the period 1996- 2002 were given a total go-by.   

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       Reliance has been placed on  Onkar Lal Bajaj v. Union  of India [(2003) 2 SCC 673].  This Court, in the said case, on  the basis of news item appeared in the Indian Express, making  allegation of political patronage in allotment of retail outlets of  petroleum products, LPG distributorships and SKO-LDO  dealerships examined the entire case.   As a result of media  exposure the Government in public interest decided to cancel  all the allotments.   This Court examined the matter in great  detail and observed as to how could all the large number of  candidates against whom there was not even insinuation be  clubbed with the handful of those who were said to have been  allotted these dealerships/distributorships on account of  political connections and patronage? The Court stated that the  two were clearly unequals.  Rotten apples cannot be equated  with good apples.  Under these circumstances, the plea of  probity in governance or fair play in action motivating the  impugned action cannot be accepted.   The impugned order  from any angle cannot stand the scrutiny of law.   This Court  observed that the solution by resorting to cancellation of all  was worse than the problem.  Cure was worse than the  disease.  Equal treatment to unequals is nothing but  inequality.  To put both the categories, tainted and the rest, on  par is wholly unjustified, arbitrary and unconstitutional being  violative of Article 14 of the Constitution.  This Court also  observed that the Government instead of fulfilling the duty  and obligation, cannot unjustly resort to cancellation of all the  allotments en masse by treating unequals as equals without  even prima facie examining any case exposed by the media.   If  a hue and cry is made that certain allotments have been made  to the sitting members of Parliament or their wives or  members of legislature or their relations, the public, media  and the Opposition would be justified in raising eyebrows.    Faced with this situation, the Court appointed a Committee of  a retired Judge of this Court along with a retired Judge of  Delhi High Court to examine all 413 cases.   This Court  observed that if a Committee, on preliminary examination of  facts and records, formed an opinion that the allotment was  made on merit and not as a result of political connections or  patronage or other extraneous considerations, it would be  open to the Committee not to proceed with the probe in detail.   If such large scale matters from all over the country were  directed to be reexamined why cannot a small number of cases  of one State be scrutinized?         Mr. Rakesh Dwivedi, learned counsel appearing for the  State of Punjab submitted that the government can set aside  the selections if there is some material which is sufficient to  come to a conclusion that corruption and manipulation have  pervasively influenced the selection process.  He also  submitted that the Courts do not sit in appeal and would give  wide latitude to the Government with regard to adjudging the  fairness of selections.   The Courts would be slow at interfering  with such decisions of the government.    He submitted that  probity of public services can only be maintained through fair  selection where merit is judged on the basis of capability,  whether in the written examination or in the interview.  It is  the constitutional duty of the Commission and the State  Government to ensure that the selections are fair and free of  corruption and manipulations.           He also submitted that while taking the decision to  cancel a selection no stigma is attached to the candidates who  are affected as there was no individual charge against them.  It  is the selection process which is condemned.  He submitted  that the Government is not required to establish beyond  reasonable doubt that there was corruption and manipulation.    It is entitled to judge on the basis of probabilities and ordinary

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course of human conduct and the real possibility of the  selections being entirely effected by the likelihood of bias of the  Chairman of the Commission who was completely managing  the examinations.    According to him, it was not possible to  separate the tainted candidates from the non-tainted  candidates.  He submitted that the selection process is found  to be vitiated pervasively that all the appointments made on  the basis of such selection would be null and void as an issue.   He submitted that, therefore, the State Government was  justified in terminating the services of the appellants.         Mr. P.P. Rao, learned senior counsel appearing for the  High Court submitted that the selection of judicial officers is  believed to be contaminated at source, having regard to the  nature of judicial posts, the High Court had to take  appropriate remedial measures to restore the credibility of  recruitment and to safeguard the independence of judiciary.    The High Court acted after being satisfied prima facie on the  basis of the reports of the Committees of Judges that all the  four selections were vitiated.  In the circumstances, the  cancellation of selections/appointments and directing a fresh  selection was just, fair and reasonable.   He submitted that  this is a case of condemnation of all four selections made but  not of the candidates selected.    In such a case, the rule of  audi alteram partem will not be attracted.  He submitted that  appointments made on the basis of condemned selections are  void ab initio.   He submitted that, therefore, the appointees  cannot be regarded as lawful holders of the offices.            He also submitted that it is well settled that justice  should not only be done but also seen to be done.  The same  principle applies to the judicial appointments as well, as the  Judiciary survives on its credibility.  Selection of judicial  officers should not only be fair but also be seen to be  transparent, free from any taint or suspicion to retain public  confidence.  He further submitted that it is not open to allege  bias on the part of the two Judges who were on the  Committee, having consented to their hearing the matter.      No such plea was raised before the High Court in the writ  petitions.   In any event, without impleading the Judges  concerned by name, the plea of bias cannot be urged.  He  placed reliance on the cases of Dr. G. Sarana v. University of  Lucknow [(1976) 3 SCC 585], AShok Kumar Yadav v. State  of Haryana [(1985) Supp. 1 SCR 657] and State of  Maharashtra v. R.S. Nayak [(1982) 2 SCC 463].         The principal question which needs to be adjudicated is  whether, in the facts and circumstances of these cases, the  respondents were justified in cancelling the entire selection  both of executive and judicial officers?           Undoubtedly, in the selection process, there have been  manipulations and irregularities at the behest of R.S. Sidhu,  the then Chairman, Punjab Public Service Commission.  On  careful scrutiny of the facts and circumstances of the case, in  my considered opinion, the High Court ought to have made a  serious endeavour to segregate the tainted from the non- tainted candidates.  Though the task was certainly difficult,  but by no stretch of imagination, it was not an impossible  task.         The peculiar facts of this case which need to be  highlighted are that some of the candidates have worked for  about three years and their services were terminated only on  the basis of criminal investigation which was at the initial  stage.   The termination of their services as a consequence of  cancellation of selection would not only prejudice their  interests seriously, but would ruin their entire future career.         It may be pertinent to mention that during the said  period there has been no allegation regarding the integrity or

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efficiency of these officers.         The facts of this case reveal that the material supplied to  the Committee having regard to the facts that majority of the  officers named in the FIR belonged to 2001 batch, the  respondents not only cancelled the entire selection of 2001  batch, but on the basis of the cancellation of selections of  2001 batch the entire process of 1999 and 2002 selections  was also cancelled.  It is also relevant to mention that the  selection process for the year 1998 was not the subject matter  nor any recommendation had been made by the Committee,  even then the selections of this year were also vitiated. The  High Court Committee without there being sufficient and  adequate material on record  recommended cancellation of  selections of both the executive and judicial officers and the  Full Bench erred in accepting the recommendation and  terminating the services of all the officers.         A close scrutiny of the facts of this case clearly reveals  that the judicial officers did not get a fair treatment by the  High Court.  They were not given copies of the Report and  other material on which reliance was placed and they virtually  had no chance of making effective representation before the  Committee or any other forum where they could ventilate their  grievances and present their point of view.         When the basis of termination is serious allegations of  corruption, then it is imperative that the principles of natural  justice must be fully complied with.

       The High Court has not considered the case in the proper  perspective. The consequences of en masse cancellation would  carry a big stigma particularly on cancellation of the selections  which took place because of serious charges of corruption. The  question arises whether for the misdeeds of some candidates,  honest and good candidates should also suffer on en masse  cancellation leading to termination of their services?  Should  those honest candidates be compelled to suffer without there  being any fault on their part just because the respondents find  it difficult to segregate the cases of tainted candidates from the  other candidates?  The task may be difficult for the  respondents, but in my considered view, in the interest of all  concerned and particularly in the interest of honest  candidates, the State must undertake this task. The  unscrupulous candidates should not be allowed to damage the  entire system in such a manner where innocent people also  suffer great ignominy and stigma.

       This Court had an occasion to examine a similar  controversy in the case of Onkar Lal Bajaj’s case (supra).  In  that case, there were serious allegations of political patronage  in allotment of retail outlets of petroleum products, (LPG  distributorships and SKO-LDO dealerships).   This Court laid  down that how could a large number of candidates against  whom there was not even insinuation be clubbed with handful  of those who were said to have been allotted  dealerships/distributorships on account of political  connection and patronage?   This Court clearly stated that the  two were clearly unequals.  Equal treatment to unequals is  nothing but inequality.  This is the most important principle  which has been laid down in this case by this Court.  The  Court further observed that to put both the categories, tainted  and the rest, on par is wholly unjustified, arbitrary and  unconstitutional, being violative of Article 14 of the  Constitution.   In somewhat similar circumstances, in this  case, the Government, instead of discharging its obligation,  unjustly resorted to the cancellation of all the allotments en  masse by treating unequals as equals without even prima facie

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examining their cases.  Those officers whose services were  affected because of en masse cancellation have not been given  an opportunity to represent before the concerned authorities.    In the case of Onkar Lal Bajaj there were 413 cases and the  task was indeed difficult to segregate the cases of political  connection and patronage with other cases.  But, even then,  this Court while, setting aside the order of the Government  cancelling the allotment, appointed a Committee of two retired  Judges, one of this Court and another from the Delhi High  Court, and they were requested to examine all 413 cases and  decide the matter after getting the report from that Committee  appointed by the Court.            While following the ratio in the said case, in the facts and  circumstances of the case, we deem it appropriate to set aside  the order of the respondents cancelling the en masse  selections and direct the respondents to examine each case  separately on its merits and submit a report to this Court.         In somewhat similar circumstances, in which initially it  looked that it was impossible to weed out the beneficiaries of  one or the other irregularities, or illegalities, if any, from the  others, even then in the case of Union of India v. Rajesh P.U.   (supra), this Court observed that the competent authority  completely mis-directed itself in taking such an extreme and  unreasonable decision of cancelling the entire selections.         The appellants submitted that the judicial officers have  not been fairly treated by the High Court.  It was urged that  the two senior judges who were members of the Committee  (appointed by the High Court) should not have been part of the  Full Bench constituted by the Chief Justice. In the facts and  circumstances of this case, I do not find any merit in this  submission of the appellants.  In these cases, before hearing  commenced, the learned counsel appearing for the appellants  clearly consented to hearing of the matter by the judges of the  full bench.  After giving clear consent before the High Court,   they cannot be permitted to make any grievance before this  Court. This tendency should not be encouraged.                            The report submitted by the judges of the Committee was  placed before the Full Court and after thorough examination  and discussion on the report by the full court, the same was  approved by all the judges of the High Court unanimously.  All  the judges after threadbare deliberations on the report had put  their seal of approval.   The report, in fact became the report of  the High Court.   On the same analogy no judge of the Punjab  and Haryana High Court should have heard this matter.                    The respondents have placed reliance on famous case  Pinochet (1999) 1 All ER 577 which has been referred and  relied by the Supreme Court in Rupa Hurra (2002) 4 SCC 388  at prs.21 read with prs.37-9 and Kumaon Vikas Mandal    (2001) 1 SCC 182 at prs.30-2.  There is no quarrel with the  principles which have been laid down in Pinochet’s case.     But in the facts and circumstances of this case after giving  clear consent before the commencement of the hearing in the  High Court, it is not fair and appropriate for the appellants to  take this objection before this Court for the first time after the  Division Bench’s judgment.  

       In the facts of this case doctrine of waiver is attracted.                  In 16 Halsbury’s Laws (4th edn) para 1471, the term  ’Waiver’ has been described in the following words:         "Waiver is the abandonment of a right in such  a way that the other party is entitled to plead the  abandonment by way of confession and avoidance if

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the right is thereafter asserted, and is either express  or implied from conduct.  It may sometimes  resemble a form of election, and sometimes be  based on ordinary principles of estoppel, although,  unlike estoppel, waiver must always be an  intentional act with knowledge.  A person who is  entitled to rely on a stipulation, existing for his  benefit alone, in a contract or of a statutory  provision may waive it, and allow the contract or  transaction to proceed as though the stipulation or  provision did not exist.  Waiver of this kind depends  upon consent, and the fact that the other party has  acted upon it is sufficient consideration.  Where the  waiver is not express it may be implied from  conduct which is inconsistent with the continuance  of the right, without need for writing or for  consideration moving from, or detriment to, the  party who benefits by the waiver; but mere acts of  indulgence will not amount to waiver; nor can a  party benefit from the waiver unless he has altered  his position in reliance on it.  The waiver may be  terminated by reasonable but not necessarily formal  notice unless the party who benefits by the waiver  cannot resume his position, or termination would  cause injustice to him.

       It seems that, in general, where one party has,  by his words or conduct, made to the other a  promise or assurance which was intended to affect  the legal relations between them and to be acted on  accordingly, then, once the other party has taken  him at his word and acted on it, so as to alter his  position, the party who gave the promise or  assurance cannot afterwards be allowed to revert to  the previous legal relationship as if no such promise  or assurance had been made by him, but he must  accept their legal relations subject to the  qualification which he has himself so introduced,  even though it is not supported in point of law by  any consideration."

       In 45 Halsbury’s Laws (4th edn) para 1269, the meaning  of the word ’waiver’ has been described as follows:         "Waiver is the abandonment of a right, and  thus is a defence against its subsequent  enforcement.  Waiver may be express or, where  there is knowledge of the right, may be implied from  conduct which is inconsistent with the continuance  of the right.  A mere statement of an intention not to  insist on a right does not suffice in the absence of  consideration; but a deliberate election not to insist  on full rights, although made without first obtaining  full disclosure of material facts, and to come to a  settlement on that basis will be binding."

       The two judges, who were part of the full bench, did not  have bias of any kind against the appellants.  They had no  pecuniary or any other interest in the matter.  They have  discharged their judicial functions as judges.  Therefore, I find  no merit in the submission that the two judges, who were part  of the Committee, ought not to have heard this matter.

       In the facts and circumstances of the case, in my  considered opinion, the appellants are not justified in making

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any grievance before this Court regarding the hearing of the  cases by the full bench of which two judges who had  submitted the Report, were also members.  Admittedly, those  judges constituting the full Bench had no interest of any kind  in deciding the matter one way or the other.  The appellants  before the commencement of hearing categorically submitted    that they had no objection whatsoever to the hearing of the  matter by the said full bench.  Even assuming, those judges  had any bias against the appellants, the appellants had  waived their right, if any.  In these circumstances, the doctrine  of ’waiver’ is fully applicable.  

       The doctrine of "Waiver" has been explained in Kammins  Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd.  [(1970) 2 ALL ER 871].  The Court observed as under: "Waiver is the abandonment of a right in such a way  that the other party is entitled to plead the  abandonment by way of confession and avoidance if  the right is thereafter asserted, and is either express  or implied from conduct.   It may sometimes  resemble a form of election, and sometimes be  based on ordinary principles of estoppel."

       The English Court in Earl of Darnley v. London,  Chatham and Dover Rly Co. [(1867) LR 2 HL 43 at 57, per  Lord Chelmsford LC] observed that Waiver must always be an  intentional act with knowledge.

       In Central London Property Trust Ltd. v. High Trees  House Ltd. [(1947) KB 130], the Court observed as under: "It seems that, in general, where one party has, by  his words or conduct, made to the other a promise  or assurance which was intended to affect the legal  relations between them and to be acted on  accordingly, then, once the other party has taken  him at his word and acted on it, so as to alter his  position, the party who gave the promise or  assurance cannot afterwards be allowed to revert to  the previous legal relationship as if no such promise  or assurance had been made by him, but he must  accept their legal relations subject to the  qualification which he has himself so introduced,  even though it is not supported in point of law by  any consideration."

       The doctrine of ’waiver’ has been interpreted by American  cases in the same manner.

       In Scherer v. Wahlstrom [Tax Civ. App., 318 S.W.2d  456, 459], the waiver is relinquishment or surrender of a right.   The Court observed as under: "A "waiver" is a giving up, relinquishment or  surrender of some known right and takes place  where a person dispenses with the performance of  something which he has a right to exact."

       In Smith v. McKnight [Tax Civ. App., 240 S.W.2d 368,  371, 372], the court observed as under: "A "waiver" is a giving up, relinquishment or  surrender of some known right, and takes place  where a person dispenses with the performance of  something which he has a right to exact."

       The same principles have been adopted in Covington

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Virginian v. Woods [29 S.E.2d, 406, 410, 182 Va. 538] and  Missouri State Life Ins. Co. v. Le Fevre, Tex [10 S.W.2d 267,  269].         The doctrine of ’waiver’ has been given the same meaning  by our Courts also. In the instant case, assuming the  appellants had any right, that right was clearly relinquished  and given up by them, when they gave no objection to the  hearing of the case by the two judges who were part of the full  bench.  Now, after the case was heard and the judgment has  gone against them, it is hardly fair, proper and appropriate for  them to raise this as a ground before this Court.

       Another significant aspect of this matter is that the two  judges (who were part of the Committee) were not impleaded  as parties in the writ petitions before the High Court and they  have not been impleaded as parties in these appeals before  this Court.  In case, the appellants were so keen to level  allegations against those two judges, the appellants ought to  have impleaded them as parties at least before this Court (with  the permission of this Court).  This is the minimum  requirement of the principles of natural justice.

       The ratio of Joseph Vilangandan v. Executive  Engineer [(1978) 3 SCC 36], is that before taking any action  against a contractor or anyone, a notice has to be given.   Applying the principles of the said case, in this case, the  conclusion would be that the appellants ought to have  impleaded the said two judges as parties to the petition before  levelling allegation of bias against them.

       In M/s Erusian Equipment and Chemicals Ltd. v.  State of West Bengal [(1975) 1 SCC 70, this Court laid down  that fundamentals of fair play require that the person  concerned should be given a notice.  The appellants in the  instant case are not justified in levelling allegations against  the said two judges without impleading them as parties to the  appeal before this Court.

        I respectfully agree with all the findings of my learned  brother Justice Sinha expect on this issue. On consideration  of the cumulative facts and circumstances I entirely endorse  the directions given by my learned brother Justice Sinha.  Consequently, the learned Chief Justice of Punjab and  Haryana High Court is requested to set up two independent  committees, one, with regard to the executive officers and  another with regard to the judicial officers.  They should  delineate the area which falls for consideration by the said  Committees and the Committees be requested to reconsider all  the cases and submit a Report to the Punjab and Haryana  High Court as expeditiously as possible.           In consonance with the principles of natural justice the  respondents are directed to supply the copies of the report and  other material on which reliance has been placed within two  weeks.  The appellants would also be permitted to inspect the  entire record and obtain copies of the documents in  accordance with the rules. The Court would also provide the  appellants two weeks time to submit their objections to such  report and comment, if any, on the material provided by the  Court.  Since the appellants are out of job, the High Court is  requested to dispose of the matter as expeditiously as possible  preferably within three months from the date of receipt of the  copy of this order.  Status quo as of today shall be maintained  until the disposal of the matter by the High Court.           These appeals are accordingly disposed of.   In the facts  and circumstances, the parties are directed to bear their own

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costs.