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PETITIONER: KARNATAKA PUBLIC SERVICE COMMISSION AND ORS. ETC.

       Vs.

RESPONDENT: B.M. VIJAYA SHANKAR AND ORS.

DATE OF JUDGMENT14/02/1992

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) OJHA, N.D. (J) PANDIAN, S.R. (J) KULDIP SINGH (J) SHETTY, K.J. (J)

CITATION:  1992 AIR  952            1992 SCR  (1) 668  1992 SCC  (2) 206        JT 1992 (4)   348  1992 SCALE  (1)451

ACT:      Service   Law-Karnataka  Public   Service   Commission- Recruitment to State Civil Service-Competitive Examinations- General  Instructions (I) (XII) and  (XIII)-Instructions  to candidates not to write Roll Numbers anywhere in the  Answer Sheet except on the space provided on the front  page-Breach of  instruction by some candidates-Non-evaluation of  answer sheets   by   Commission-Action  of  Commission   held   not arbitrary-Failure   to   provide  hearing   opportunity   to candidates held not violative of natural  justice-Directions given to grant relaxation in age and chance to avail.      Natural  justice-Rule  of  hearing-Exceptions-Rule   is construed  strictly  in academic  disciplines-It  should  be construed more strictly in competitive examinations.

HEADNOTE:      The  Karnataka  Public  Service  Commission   conducted competitive  examinations  for  the  State  Civil  Services. Clause  (I)  of the General Instructions to  the  candidates provided that the candidates should write their roll  number only  on  the front page of the answer books  in  the  space provided  for  it and not anywhere else  inside  the  answer sheet.  Clause (xii) provided that the candidates must abide by the instructions and clause (xiii) provided that  failure to  abide  by the instructions will render  them  liable  to expulsion  from examination or such other punishment as  the Commission  may deem fit.  Some of the  candidates  violated the  instructions and entered their roll numbers inside  the answer books.  Consequently their answer books were not  got evaluated by the Commission.  The candidates challenged  the action of the Commission before the Karnataka Administrative Tribunal  which directed the Commission to get their  answer books evaluated by holding that (i) no penalty was  provided for breach of the instructions and  (ii) the failure of  the Commission  to afford any opportunity to the  candidates  to explain their bonafide and innocence was arbitrary.  Against the decision of the Tribunal the Commission and                                                        669

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the State filed appeals in this Court.      Allowing  the appeals  and setting aside the  order  of the Tribunal, this Court,      HELD:  1.  The Tribunal faulted in  inferring  that  no penalty was provided for breach of instructions requiring  a candidate  not  to write his role number inside  the  answer book.    The  expression  ‘such  other  punishment  as   the Commission  may deem fit to impose’ in clause (xiii) of  the General Instructions read with clause (xii) provides  action for breach of that which is, clearly specified.   Provisions attempting to infuse discipline in competitive  examinations cannot  be construed with same yardstick as a provisions  in penal  statutes.   Direction not to write  roll  number  was clear  and  explicit.   Once it was violated  the  issue  of bonafide  and  honest mistake did not  arise.   [671C,  G-H, 672A, 673D]      1.1. However, the Commission did not impose any penalty on  the  candidates because neither  their  examination  was cancelled nor were they debarred from taking any examination conducted by the Commission.  The only action taken was that those  answer  books in which roll number had  been  written inside  were  not subjected to  evaluation.   Therefore  the action  of  the  Commission could not  be  characterised  as arbitrary.  [672B-C]      2. Natural justice is a concept which has succeeded  in keeping  the arbitrary action within limits  and  preserving the  rule of law.  But with all the religious rigidity  with which it should be observed, since it is ultimately  weighed in balance of fairness, the courts have been circumspect  in extending  it  to  situations  where  it  would  cause  more injustice  than  justice.   Absence of  any  expectation  of hearing in matters which do not affect any interest and call for  immediate  action, such as the present  one,  where  it would  have delayed declaration of list of other  candidates which  would have been more unfair and unjust are  rare  but well  recognised exceptions to the rule of natural  justice. [672F-H; 673C-D]      2.1. Even though the procedure of affording hearing  is as  important  as  decision on merits  yet  urgency  of  the matter,  or public interest at times require flexibility  in application of the rule as the circumstances of the case and the  nature  of the matter required to be  dealt  may  serve interest of justice better by denying opportunity of hearing and  permitting the person concerned to challenge the  order itself   on   merits   not   for   lack   of   hearing    to                                                        670 establish  bonafide  or innocence but  for  being  otherwise arbitrary or against rules. [672G-H]      2.2.  Rule  of hearing has been construed  strictly  in academic disciplines.  It should be construed more  strictly in  such  cases  where an examinee is  competing  for  Civil Service  post.   Present  case can safely  be  placed  in  a category  where  natural justice before  taking  any  action stood  excluded  as  it did not involve  any  misconduct  or punishment.    Therefore   the  Tribunal  in   issuing   the directions approached the matter technically and  completely misdirected itself in this regard. [673E-F, 673H, 673G]

JUDGMENT:      CIVIL  APPELLATE JURISDICTION : Civil Appeal Nos.  369- 393 of 1991.      From  the  Judgment and Order dated  13.9.1990  of  the Karnataka Administrative Tribunal, Bangalore, in Application

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Nos.  875, 4243, 4632, 1978 to 1980, 2974, 676,  677,  4483, 1499,  2022,1500,2023, 3357, 1865, 1781, 1684,  3484,  3479, 2724, 2080, 3926, 4113, 4279, 3527 and 4553 of 1990.                          WITH      Civil Appeal Nos. 825-826 and 394-397 of 1991.      R.N. Narsimhamurthy, E.C. Vidyasagar, M. Veerappa,  Kh. Nobin  Singh, Ms. Kiran Suri, P.P. Tripathi, N.S. Das  Bahl, Ms.  Lalitha Kaushik, S.K. Kulkarni, Sury Kant,  D.B.  Vohra and L.R. Singh for the appearing parties.      The Judgment of the Court was delivered by      R.M. SAHAI, J. Does the rule of natural justice has  no exception  ? Is denial of opportunity of hearing,  in  every circumstance,  arbitrary?   The State of Karnataka  and  the Public  Service  Commission,  through  these  appeals,  seek answer to these questions. They are aggrieved by directions, issued by the Karnataka Administrative Tribunal, to get  the answer books of candidates evaluated who in the  competitive examinations conducted by the commission for the State Civil Service  for  categories ‘A’ and ‘B’ post,  were  guilty  of writing  their  roll numbers not only on the front  page  of the answer books, in the space provided for it, but even  at other  places  in disregard of instructions  issued  by  the Commission.   Basis  for the direction was  failure  of  the Commission to afford any opportunity to the candidates                                                        671 to  explain  their bonafide and innocence therefore  it  was arbitrary  and it entailed grave consequences for those  who were aspirants for entering into public service.      Power   and  authority  of  the  Commission   to   hold examinations,  regulate  its working  and  functioning  take action  against erring candidates guilty of  misconduct  are all  provided  for by the rules and instructions  issued  in exercise of power conferred by the Statutes.  The  claim  of the   candidates   that they did not vest any right  in  the Commission  to  take  such  action  was  negatived  by   the tribunal.  But it faulted in inferring that no  penalty  was provided  for breach of instructions requiring a   candidate not  to  write  his roll  number  inside  the  answer  book. Relevant  clause  (1) of the  Instructions to Candidates  is extracted below:           "Before commencing your answers please  write your           register number and other particulars in the space           provided above.  Do  not  write  your  name   or           register  number  or sign any where in the  answer           book  or  on  any loose sheets,  such  as  precis           sheets,maps, graph papers, etc.’      It  is  not  disputed and it was  found,  even  by  the tribunal  that  it was printed on the first page  of  every, answer book. Its observance was mandatory and its  disregard was  punishable is clear  from instruction (xii) and  (xiii) of   General  Instructions  to  the  candidates  which   are extracted below:           "(xii)   The   candidates  must  abide   by   such           instructions as may be specified  on the cover  of           the answer book or any further instructions  which           may be given by the Supervisor/Invigilator of  the           Examination.           (xiii) If the candidates fail to do so or  indulge           in  disorderly  or improper   conduct,  they  will           render themselves   liable   to   expulsion    from           examination   and or such other punishment as  the           Commission  may deem fit to impose."      Is  the  expression,  ’such  other  punishment  as  the commission may deem fit to impose’ vague and thus arbitrary? We   do not think so.Read with clause (xii) it  presents  no

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difficulty.  It provides action for breach of that which is, clearly,  specified.  It cannot be characterised  as  vague. And  then  any capricious exercise  of  power can always  be assailed. More important                                                       672 than this is that provisions attempting to infuse discipline in competitive to be conducted by the Commission cannot   be construed  with  same  yardstick as  a  provision  in  penal statutes. Moreover the Commission did not impose any penalty on the candidates.  Their examination was not cancelled  nor they were debarred from taking any examination conducted  by the  Commission for that year or any year, in future.  Their marks  in papers, other than those in which they were  found to  have acted in disregard of instructions  were  declared. The only action taken  was that those answer books in  which roll  numbers had been written inside were not subjected  to evaluation.    In   our   opinion   there    was    nothing, basically,wrong  in it. The  Commission did not treat it  as misconduct. The action could not  be  termed  as  arbitrary. Nor it  was abuse  of  power which  could  be  corrected  by judicial review.    Such  instructions are issued to ensure fairness  in  the examination. In the fast deteriorating standards of  honesty and   morality  in  the  society  the  insistence   by   the Commission that no attempt should be made of  identification of  the candidate by writing his roll number anywhere is  in the larger public interest. It is well known that the  first page  of the answer book on which roll number is written  is removed and a fictitious code number is provided to rule out any  effort  of  any approach to the examiner.  Not  that  a candidate  who  has  written  his  roll  number  would  have approached  the examiner. He may have committed  a  bonafide mistake. But that is not material. What was attempted to  be achieved by the instruction was to minimise any  possibility or  chance of any abuse. Larger public interest  demands  of observance of instruction rather than its breach.      Was  natural  justice violated ? Natural justice  is  a concept which has succeeded in keeping the arbitrary  action within  limits and preserving the rule of law. But with  all the  religious  rigidity with which it should  be  observed, since  it is ultimately weighed in balance of fairness,  the courts  have been circumspect in extending it to  situations where  it  would  cause more injustice  than  justice.  Even though the procedure of affording hearing is as important as decision  on  merits yet urgency of the  matter,  or  public interest at times require flexibility in application of  the rule as the circumstances of the case and the nature of  the matter  required to be dealt may serve interest  of  justice better by denying opportunity of hearing and permitting  the person concerned to challenge the order itself on merits not for  lack of hearing to establish bonafide or innocence  but for being otherwise                                                       673 arbitrary or against rules. Present is a case which, in  our opinion,  can safely be placed in a category  where  natural justice  before taking any action stood excluded as  it  did not involve any misconduct or punishment.      Competitive  examinations are required to be  conducted by  the Commission for public service in strict  secrecy  to get  the best brain. Public interest requires no  compromise on  it.  Any  violation of it should  be  visited  strictly. Absence  of any expectation of hearing in matters  which  do not affect any interest and call for immediate action,  such as the present one, where it would have delayed  declaration of  list  of  other candidates which would  have  been  more

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unfair and unjust are rare but well recognised exceptions to the rule of natural justice. It cannot be equated with where a  student  is  found  copying  in  the  examination  or  an inference  arises against him for copying due to  similarity in  answers of number of other candidates or he  is  charged with misconduct or misbehavior.  Direction not to write roll number  was clear and explicit. It was printed on the  first page  of every answer book.  Once it was violated the  issue of   bonafide  and  honest  mistake  did  not  arise.    Its consequences,  even,  if  not  provided  did  not  make  any difference in law.  The action could not be characterised as arbitrary.   It  was not denial of equal  opportunity.   The reverse  may  be true.  The tribunal appears  to  have  been swayed by principles applied by this Court where an examinee is  found copying or using unfair means in the  examination. But  in  doing so the tribunal ignored a  vital  distinction that  there may be cases where the right of hearing  may  be excluded  by the very nature of the power or absence of  any expectation  that  the hearing shall be afforded.   Rule  of hearing has been construed strictly in academic disciplines. It should be construed more strictly in such cases where  an examinee  is  competing for Civil Service  post.   The  very nature  of the competition requires that it should be  fair, above board and must infuse confidence.  If this is  ignored then,  as  stated  earlier, it is not  only  against  public interest  but it also erodes the social sense  of  equality. The  tribunal  in issuing directions approached  the  matter technically  and  has attempted to make out  much  where  it would  have  been  better part of discretion  to  refuse  to interfere.   The tribunal completely misdirected  itself  in this regard.  In our opinion its order cannot be maintained.      Before  concluding  we express our unhappiness  on  the letter of First member of the Public Service Commission sent to  this court that the Special Leave Petitions  were  filed without authority against the decision of                                                        674 the Commission by the Chairman and the secretary.  We do not make  any comment on it but we shall be failing in our  duty if  we do not place it on record that but for the action  of the Chairman and the Secretary incalculable harm would  have been caused to the institution.      In  the result these appeals succeed and  are  allowed. The  order passed by the tribunal is set aside.   The  claim petition  filed  by  the  candidates shall stand  dismissed, except to the extent indicated below.      Claim  petitions were allowed on 13th  September  1990. Nearly one and half years have elapsed since then.  Many  of the   candidates might not have availed of their  chance  in the meantime.  They might have become over age.   therefore, we consider it necessary to direct that the Commission shall grant  relaxation  of age and of chance to  be  availed,  if there is any restriction in this regard, to those candidates whose  answer books were not evaluated for the  reason  that they  had violated the instructions and entered  their  roll numbers  inside  the answer books.  We  were  informed  that there were large number of such candidates.  Therefore, this decision  will  apply to respondents as well as  others  who appeared  in the examination.  Relaxation shall be  for  one chance only to be availed of in the next examination.      The  appeal  nos.  394-397/91 have been  filed  by  the selected candidates.  Since the appeal of the Commission has been allowed it is not necessary to pass any order in  these appeals.  They shall stand disposed of accordingly.      parties shall bear their own costs. T.N.A.                                       Appeals allowed.

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