2004 Haryana Civil Services Scam: High Court Division Bench Delivers Split Verdict On Plea For Appointment Of Allegedly Tainted Candidate

The Punjab & Haryana High Court delivered split verdict on appointment  of alleged tainted candidate in 2004 Haryana Civil Services recruitment.

Justice Sanjeev Prakash Sharma allowed the intra court appeal and directed to appoint the candidate, whereas Justice Meenakshi I. Mehta dismissed the plea.

Facts In Brief

The Letter Patent Appeal was filed by Surender Lather who was selected in 2004 Haryana Civil Services (Executive Branch) conducted by the Haryana Public Service Commission.

Following allegations of irregularities in the recruitment process and the Supreme Court's directive to conclude the inquiry, the State Vigilance Bureau completed its investigation and submitted its report on 09.11.2011.

The inquiry found irregularities in the selection process, including unusual practices in the checking of answer sheets and preparation of the final marks list. It was also alleged that examiners altered marks—either increasing or decreasing them—using different inks.

In compliance of order of the Division Bench, the Committee consisting of senior officers under the chairmanship of Additional DG, Vigilance Bureau, was constituted, which held that exercise was required to be conducted as to which of the candidates were innocent and which were not. The State Vigilance Bureau was considered to be the most

The committee of senior officers, therefore, concluded and segregated candidates where answer sheets had no discrepancy and offered appointment to 38 candidates treating them as 'non- tainted'. The Division Bench in 2016 while confirming the decision of the Haryana Government granted liberty to make representation to the State with regard to claim of being non-tainted.

The appellant, Surender Lather, submitted his representation and the Committee noticed that the examiner who conducted the evaluation of answer sheet used two pens while evaluating the answer sheet and signing and, therefore, proceeded to reject the claim of the appellant vide order dated 27.02.2017. The same was challenged by the appellant, whereby he had been treated as tainted candidate and his claim has been rejected.

It was the case of the appellant that out of those '38' candidates who had been considered as untainted and had been appointed, five of the selected candidates were those in whose cases also the examiner had used different pen while putting number and while signing and the case of the appellant could not have been distinguished from the said five candidates. It was further submission that so far as the FSL report relating to the examiner is concerned, it had clearly stated that the examiner who has used the two inks, is the one and the same.

Opinion Of Justice Sanjeev Prakash Sharma

While allowing the plea, Justice Sanjeev Prakash Sharma said, "there has been an arbitrary exercise conducted by the respondents while carrying out their duties of examining the case of the candidates as directed by the Division Bench of this Court and by the Supreme Court. The power given to the executive authorities has to be exercised fairly and without any discrimination."

Justice Sharma wrote that "the exercise as directed has been done by adopting pick and choose method. Once the authorities took a decision to treat the candidates having their answer sheet signed by one single examiner by two inks fall within untainted category, the concerned committee could not have been allowed to pick up five of them and offer appointment while leaving similarly situated person like the appellant."

The judge noted that the answer sheets of those candidates who have been appointed also carry two different inks of the same examiner who has examined the answer sheet of the appellant. He apparently has made markings from one pen while examining the answers, however, on the front page he has used another rink and has put his signatures also.

"There has been no forgery found by the FSL nor there is any ambiguity. No doubt, therefore, can be raised with regard to authenticity of the answer copy," it added.

Moreover, once a view is taken, the same has to be applied to all similarly situated persons. Picking up some and leaving others would be anathema to the principles of equality. It is a case of discrimination per se which cannot be allowed to be sustained, it added.

While concluding that appellant was discriminated, the Justice Sharma had directed to offer appointment to the appellant along with all the benefits.

Justice Sharma had also noted that the plea cannot be rejected on ground on Res Judicate because the previous plea filed by the appellant was decided with "liberty to revive iy."

"We therefore cannot turn back and hold that the revival could not have been done. Principal of res-judicata essentially would apply where there is a same cause of action which has arisen and was decided on merits in an earlier litigation between the same parties," it added.

Opinion Of Justice Meenakshi I. Mehta

 Justice Mehta noted that, there is nothing in the  impugned order of the single judge to suggest that the writ- petitioner had ever sought to reserve his right to file an appeal against the same.

"In such circumstances, he cannot be allowed to take a somersault by moving this appeal to lay challenge to the afore-cited order," she added.

Justice Mehta pointed that, even after having been categorized as tainted candidate, had chosen not to agitate/contest his above-referred appeal on merits and had, rather, opted for consideration of his claim by the respondent-Government, without seeking any liberty to approach this Court again, on the same cause of action, in the eventuality of the rejection of his claim by the respondent- Government.

"The Report qua the difference in handwriting of the marking of his answer-sheets of Hindi and Hindi Essay from the handwriting of the marking of the other answer-sheets, had also been taken into consideration. Similarly, order...regarding the rejection of his representation has also been passed after considering all the relevant factors. The writ-petitioner has not been able to place any cogent material on the file to show/establish any bias, malice or mala-fides on the part of the respondents towards him in rejecting his above- described claim," read the order.

Considering the difference of opinion the Court directed the Registry to place the matter along with the respective judgments before the Chief Justice for constitution of a Larger Bench, to decide the issue finally.

Mr. Chetan Mittal, Senior Advocate, assisted by Mr. Himanshu Gupta, Advocate and Mr. Avichal Sharma, Advocate for the appellant.

Mr. Vivek Chauhan, Addl. AG, Haryana.

Mr. Kanwal Goyal, Advocate and Ms. Sheena Dhaiya, Advocate for the respondent No.2.

Title: Surender Lather v. State of Haryana and another

Click here to read/download the order