Abhishek Kumar Singh vs G. Pattanaik on 3 June, 2021


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Supreme Court of India

Abhishek Kumar Singh vs G. Pattanaik on 3 June, 2021

Author: A.M. Khanwilkar

Bench: A.M. Khanwilkar, Dinesh Maheshwari

                                               1
                                                                REPORTABLE

                                IN THE SUPREME COURT OF INDIA

                                    INHERENT JURISDICTION

                         CONTEMPT PETITION (CIVIL) NOS. 625­626 OF 2019
                                               IN
                             CIVIL APPEAL NOS. 11017­11018 OF 2018


          Abhishek Kumar Singh                                  … Petitioner

                                             Versus

          G. Pattanaik & Ors.                                   …Respondents

                                             WITH

                         CONTEMPT PETITION (CIVIL) NOS. 642­643 OF 2019
                                               IN
                             CIVIL APPEAL NOS. 11017­11018 OF 2018


                         CONTEMPT PETITION (CIVIL) NOS. 671­672 OF 2019
                                               IN
                             CIVIL APPEAL NOS. 11017­11018 OF 2018


                         CONTEMPT PETITION (CIVIL) NOS. 395­396 OF 2020
                                               IN
                             CIVIL APPEAL NOS. 11017­11018 OF 2018


                         CONTEMPT PETITION (CIVIL) NOS. 408­409 OF 2020
Signature Not Verified

Digitally signed by
                                               IN
DEEPAK SINGH
Date: 2021.06.03
13:28:00 IST
                             CIVIL APPEAL NOS. 11017­11018 OF 2018
Reason:
                                             2
        CONTEMPT PETITION (CIVIL) NOS. 598­599/2020
                            IN
            CIVIL APPEAL NOS. 11017­11018/2018

      CONTEMPT PETITION (CIVIL) NOS. 669­670 OF 2020
                            IN
          CIVIL APPEAL NOS. 11017­11018 OF 2018


      CONTEMPT PETITION (CIVIL) NOS. 671­672 OF 2020
                            IN
          CIVIL APPEAL NOS. 11017­11018 OF 2018


               WRIT PETITION (CIVIL) NO. 491 OF 2020

                                          AND

            TRANSFER PETITION (CIVIL) NO. 1209/2020



                                 JUDGMENT

A.M. Khanwilkar, J.

1. These cases essentially assail the orders dated 4.12.2018

and 2.3.2020 issued by the Chief Engineer (A­2­1), Uttar Pradesh

Jal Nigam, Lucknow1, pursuant to the judgment of this Court

dated 15.11.2018 in Civil Appeal Nos. 11017­11018/2018 2. This

Court by the aforesaid judgment, had directed the Uttar Pradesh

1
For short, “the Chief Engineer” or “respondents”
2
Uttar Pradesh Jal Nigam & Ors. v. Ajit Singh Patel & Ors., (2019) 12 SCC 285
3
Jal Nigam (the respondent corporation) to comply with the

judgment of the High Court of Judicature at Allahabad 3 dated

28.11.2017 in a batch of writ petitions (leading case being Writ­A

No. 37143/2017) and pass a fresh, reasoned order.

2. In pursuance of the aforementioned decision of this Court,

the Chief Engineer issued order dated 4.12.2018, thereby

reengaging the petitioners and other appointees to their previous

place of posting. However, with a caveat that the said

appointment was subject to the liberty granted by this Court and

that no arrears would be paid by the respondent corporation. The

order of the Chief Engineer dated 4.12.2018 is reproduced thus:

“The order dated 11.8.2017 passed by the Chief Engineer
(A­2­1) U.P. Jal Nigam Lucknow has been set aside by
Hon’ble High Court Allahabad by its order dated
28.11.2017 in W.P. No. A­37143/2017 and Review
Application No. 2/2018 is also rejected by Hon’ble High
Court in its order dated 25.07.2018. The Hon’ble Supreme
Court has upheld [sic] the above order passed by Hon’ble
High Court in Civil Appeal No. 11017­11018/2018 titled as
U.P. Jal Nigam & Ors. v. Ajit Singh & Ors.
In
the above context you are expected to perform your
duty at your previous posting place within 15 days
from issuing of this order.

That it is being clarified that the said appointment will
be subject to the liberty granted to Nigam, by the
Hon’ble Supreme Court of India vide judgment dated
15.11.2018 in Civil Appeal No. 11017­11018/2018. The
concerning paragraphs are extracted below:

3

For short, “the High Court”
4
“15. In view of the above, the challenge to the impugned
judgment dated 28th November, 2017 and 25th July, 2017
must fail but with a clarification that the competent
authority is free to pass a fresh, reasoned order in
accordance with law.

16. We may not be understood to have expressed any
opinion either way on the merits of the course of action
open to the appellants against the respondents including
against the other appointees under the same selection
process. All questions in that behalf are left open.”4
That no Arrears prior to the fresh date of appointment
will be granted by Nigam.”
(emphasis supplied)

3. This order, according to the contempt petitioners, is in the

teeth of the decision of this Court dated 15.11.2018 and,

therefore, the respondents be proceeded for having committed

wilful disobedience of the order of this Court.

4. Thereafter, in terms of the liberty granted by this Court in

the aforementioned judgment, the respondent corporation passed

a fresh order dated 2.3.2020, annulling the appointment of the

petitioners and similarly placed Assistant Engineers. In arriving

at the fresh decision, reliance was placed upon the two internal

inquiry reports dated 29.5.2017 and 7.7.2017; expert reports —

of IIIT Allahabad dated 11.9.2018 and IIT Kanpur dated

15.9.2018; CFSL report dated 11.12.2019; and recommendation

made by the Special Investigation Team (SIT) in its final report

4
extracted in paragraph 14 ibid
5
dated 22.1.2020 received by the respondent corporation on

18.2.2020, to cancel the recruitment process due to corruption

involved. The two expert reports given by Assistant Professor at

IIT Kanpur and Associate Professor at IIIT Allahabad dated

15.9.2018 and 11.9.2018 respectively, pointed out that the audit

trail/checksum and time stamps of the candidates were not

made available and therefore, segregation of tainted and

untainted candidates was not possible, in absence of primary

data. The operative portion of the order dated 2.3.2020 is

reproduced below:

“20. …..

After the investigation conducted by the
department in the case, the reports of both the experts,
the relevant recommendation/conclusion of the SIT
investigation and after examination of the records, it
has become clear that the selection process in question
is void ab initio for the above reasons.

In view of the above, the office memo number 08/A­2­
1/2151­0201/17 dated 03.01.2017, memo no. 09/ A­2­1 /
2151­0201/17 dated 03.01.2017 and memo number 10/A­
2­1/2151­0201/17 dated 03.01.2017 is cancelled with
effect from the date of issue i.e. date 03.01.2017 and the
appointments in question are declared void from the said
date.

Due to the cancellation of the above office
memorandum issued on dated 03.01.2017, the orders
which were circulated on 04.12.2018 to contribute again
are effectively annuled.

The Assistant Engineer appointed under this process
will get the protection of salary allowances etc. received so
far and no recovery will be made from them. In the
discharge of departmental responsibilities, the
6
administrative and financial functions performed by them
so far will remain valid.”
(emphasis supplied)

5. This order has been assailed by the writ petitioner(s) directly

in this Court by way of Writ Petition (Civil) No. 491/2020. We are

informed that the same order has been assailed by similarly

placed persons governed by the impugned order by way of writ

petition(s) before the High Court of Judicature at Allahabad and

also at its Bench at Lucknow. Some of them have filed transfer

petition before this Court, to transfer their Writ Petition No.

13083/2020 (S/S) filed at Lucknow Bench of the High Court and

to hear it along with contempt petitions pending in this Court

involving overlapping issues. Accordingly, the assail in these

petitions is to the aforementioned order dated 4.12.2018, as well

as, order dated 2.3.2020 passed by the respondents.

6. In Contempt Petition (C) Nos. 625­626/2019, 642­643/2019

and 671­672/20195, the grievance of the petitioners is that the

respondents have appointed them afresh instead of reinstatement

with continuity of service along with arrears of wages and thus,

have wilfully violated the direction of this Court in judgment

5
Collectively, “contempt petitions against non­payment of arrears”
7
15.11.2018, to give full effect to the High Court’s judgment dated

28.11.2017.

7. Whereas, in Contempt Petition (C) Nos. 395­396/2020, 408­

409/2020, 598­599/2020, 669­670/2020 and 671­672/2020 6,

the grievance is that the order of the respondents dated 2.3.2020,

have annulled the appointment of the petitioners, without

affording opportunity of hearing to the petitioners in violation of

the judgment of this Court dated 15.11.2018 in Civil Appeal No.

11017­11018/2018.

8. In W.P. (C) No. 491/2020, the petitioners have prayed for

quashing of order dated 2.3.2020 passed by the respondent and

to reinstate the petitioners with continuity of service and full

back wages. While, in T.P. (C) No. 1209/2020, the petitioners

seek to withdraw and transfer to this Court, Writ Petition (C) No.

13083/2020 (Service Single), which is pending before the

Lucknow Bench of the High Court, as the order dated 2.3.2020

(impugned therein) is already subject matter in second set of

contempt petitions including W.P.(C) No. 491/2020 before this

Court.

6
Collectively, “contempt petitions against termination”
8
CONTEMPT PETITIONS AGAINST REENGAGEMENT WITHOUT
CONTINUITY OF SERVICE AND ARREARS OF BACK WAGES
VIDE ORDER DATED 4.12.2018:

9. The factual background leading to filing of these contempt

petitions is that the respondents, vide order dated 11.8.2017,

annulled the recruitment process pursuant to which the

petitioners were employed, thereby terminating services of the

petitioners. The said order was challenged before the High Court

and came to be set aside by way of common judgment dated

28.11.2017. The above judgment also directed that the

petitioners be permitted to work and be paid regular monthly

salary. The relevant extract of this decision is reproduced thus: ­

“…..

In view of the above, we are of the considered opinion
that the impugned order dated 11.8.2017 has been passed
in violation of principles of natural justice without issuing
notice and without affording opportunity of hearing to the
petitioners, no exercise was undertaken to distinguish the
case of tainted and non­tainted candidates to arrive at the
conclusion while passing the impugned order as such the
impugned order dated 11.8.2017 is not sustainable and is
liable to be set aside.

Accordingly, the impugned order dated 11.8.2017
passed by the Chief Engineer Jal Nigam (Annexure­9 to the
writ petition) is here by set aside.

The writ petitions succeed and are allowed with the
further direction to permit the petitioners to work on the
post of Assistant Engineer (Civil); Assistant Engineer
(Electrical/Mechanical) and Assistant Engineer
(Computer Science/Electronics and
Communication/Electrical and Electronics) and to pay
them regular salary month by month with the liberty to
9
the respondents to pass a fresh, reasoned order after
providing opportunity of hearing to the petitioners and other
affected parties on the basis of observations made above.
No order as to costs.”
(emphasis supplied)

10. Another writ petition filed by some of the petitioners before

Lucknow bench of the High Court, being Service Bench No.

19863/2017 was also disposed of on 12.12.2017, in terms of the

judgment dated 28.11.2017, in the following words:

“…..

Accordingly, this writ petition is also allowed in terms of
the judgment and order dated 28.11.2017 passed by this
Court at Allahabad in the bunch of Writ Petitions, leading
Writ Petition being Writ­A No. 37143 of 2017, Ajit Singh
Patel and others vs. State of U.P. and others
with a further
direction to permit the petitioners to work on the post
of Assistant Engineer (Civil), Assistant Engineer
(Electrical/ Mechanical) and Assistant Engineer
(Computer Science/ Electronics and Communication /
Electrical and Electronics) and pay them regular salary
as and when the same accrues to them with a liberty to
the respondents to pass a fresh reasoned order after
providing opportunity of hearing to the petitioners and
other parties on the basis of the observations made by this
Court at Allahabad in the judgment and order dated
28.11.2017 (supra).

…..”
(emphasis supplied)

11. Upon failure of the respondents to act upon the directions

passed in judgment dated 28.11.2017, the petitioner(s) filed

Contempt Application (Civil) No. 6218/2017 before the High

Court. Meanwhile, the respondents preferred SLP (C) Nos. 5410­
10
5419/2018 before this Court assailing the judgment dated

28.11.2017. The said special leave petitions were disposed of by

an order dated 16.3.2018, holding that the respondents may

approach High Court for a liberty to re­work the answer sheets

on the basis of corrections. The said order reads thus: ­

“ORDER
Mr. Rakesh Dwivedi, learned senior counsel appearing
for the petitioners, points out that the petitioners having
found out that there were defective questions and incorrect
answer keys, the High Court should have permitted the
petitioners to re­work the merit list. He submitted that the
High Court has gone wrong in insisting for an individual
notice in the factual matrix of this case. In this regard he
has also placed reliance on a judgment of this Court in Vikas
Pratap Singh and Others v. State of Chhattisgarh and
Others
, reported in (2013) 14 SCC 494.

Mr. Mukul Rohatgi, learned senior counsel appearing
for the respondent(s), however, points out that whether the
questions were defective or key answers were incorrect are
disputed question and, therefore, liberty should be granted
to the respondents to participate in the inquiry. He further
submits that the decision of this Court referred to by the
learned senior counsel for the petitioners may not apply to
the facts of this case.

Be that as it may, having gone through the
impugned judgment, we do not find that the door is yet
closed. It is for the petitioners, if they are so advised, to
approach the High Court itself for a liberty to re­work
the answer sheets on the basis of the corrections, in case
the High Court is also of the view that the corrections
need to be made.

The special leave petitions are, accordingly, disposed
of.

Pending application(s), if any, shall stand disposed of.”
(emphasis supplied)
11

12. Upon disposal of the said special leave petitions, the

respondents furnished an undertaking to the High Court in the

Contempt Application (Civil) No. 6218/2017 that the judgment

dated 28.11.2017 will be complied with on or before 15.5.2018.

In the meantime, the respondents preferred a Review Application

No. 2/2018 in Writ ­ A No. 37143/2017, wherein the High Court,

vide order dated 25.7.2018, refused to interfere with the

judgment dated 28.11.2017 and reiterated that it was open to the

respondents to pass a fresh order. This order dated 25.7.2018

reads thus: ­

“The Managing Director, U.P. Jal Nigam, Lucknow and the
Chief Engineer, U.P. Jal Nigam, Lucknow have both filed
an application for the review of the judgement and order
dated 28.11.2017 by which a bunch of these writ petitions
were finally decided.

The submission of learned Advocate General of State of
U.P. is that the applicants be granted liberty to segregate
tainted and untainted candidates in passing a fresh order
for which liberty has been given.

The order impugned in the writ petitions was of 11.08.2017
passed by the Chief Engineer, Jal Nigam which cancels the
entire selection.

In allowing the petition, we have held that the order
impugned in the writ petition has been passed in
violation of principles of natural justice and that the
selection as a whole was not liable to be cancelled
without undertaking any exercise to separate the
tainted candidates from the untainted one’s. The court
in the end while allowing the writ petitions had
permitted the applicants to pass a fresh reasoned order
after providing opportunity of hearing to the
12
petitioners and the other affected parties keeping in
view the observations made in the judgment.

The applicants till date have not passed any fresh order.

In passing the fresh order they may consider each and
every aspect of the matter and they do not require any
permission of the court for the manner in which they
would pass the fresh order.

In view of above, we do not consider that any liberty for the
above purpose is needed from the court.

We do not find any apparent error in the judgment and
order which is sought to be reviewed.

The Review Application stands disposed of.”
(emphasis supplied)

13. Since the undertaking filed in Contempt Application (Civil)

No. 6218/2017 was not complied with even after the disposal of

the review petition, the High Court by order dated 6.8.2018,

directed that upon failure to file compliance affidavit before next

date of hearing, the presence of the respondents would be

required for framing of charges of contempt. Likewise, in another

contempt petition before the Lucknow bench of the High Court

(against non­compliance of judgment dated 12.12.2017), a

similar order was passed on 7.8.2018.

14. The respondents carried the matter in appeal before this

Court vide Civil Appeal Nos. 11017­11018/2018, impugning the

judgment and orders dated 28.11.2017 passed in Writ­A No.

37143/2017 and also dated 25.7.2018 in Review Application No.
13
2/2018. It may be useful to advert to an interim order passed by

this Court in the stated appeal, dated 20.8.2018, which may have

some bearing on the grounds under consideration. The same

reads thus: ­

“The only liberty granted to the petitioners and as
rightly understood by the learned Advocate General
appearing for the State was to segregate the tainted
from the untainted as per Order dated 16.03.2018.

We direct the petitioners to file a report, in a sealed
cover, within one month from today, as to what steps have
been taken pursuant to the Judgment dated 28.11.2017
passed by the High Court and the order dated 16.03.2018
by this Court in the Special Leave Petition.

List on 20.09.2018.

The petitioners may approach the High Court and seek
for extension of time.”
(emphasis supplied)

Be that as it may, the decisions of the High Court referred to

above stood confirmed by this Court vide order dated 15.11.2018,

giving liberty to the respondent(s) to pass a fresh, reasoned order.

The relevant portion of the decision of this Court reads thus: ­

“14. The limited plea taken before this Court as noted
in the first paragraph of order dated 16 th March, 2018
was to allow the appellants to re­work the question and
answer sheets and revise the merit list and issue fresh,
reasoned order after providing opportunity of hearing
to the affected candidates. That option has been kept
open. It is for the appellants to pursue the same. In
other words, the appellants must, in the first place, act
upon the decision of the High Court dated 28 th
November, 2017 whereby the order passed by the Chief
Engineer dated 11th August, 2017 has been quashed and
set aside. The appellants may then proceed in the
14
matter in accordance with law by passing a fresh,
reasoned order. Indeed, while doing so, the appellants
may take into consideration the previous inquiry
reports as also all other relevant material/documents
which have become available to them. We make it
clear that we have not dilated on the efficacy of the
opinion given by the experts of the “IIIT Allahabad and
IIT Kanpur”.

15. In view of the above, the challenge to the impugned
judgment dated 28th November, 2017 and 25th July, 2017
must fail but with a clarification that the competent
authority of Nigam is free to pass a fresh, reasoned
order in accordance with law.

16. We may not be understood to have expressed any
opinion either way on the merits of the course of action
open to the appellants against the respondents including
against the other appointees under the same selection
process. All questions in that behalf are left open.”
(emphasis supplied)

15. After the judgment of this Court dated 15.11.2018, the High

Court in the Contempt Application (Civil) No. 6218/2017, vide

order dated 26.11.2018, directed the respondents to comply with

the judgment dated 28.11.2017 in the first instance. An order of

even date was made in Contempt No. 1428/2018 by the Lucknow

bench of the High Court on similar lines.

16. In terms of the directions of this Court in judgment dated

15.11.2018 and that of High Court in the two orders dated

26.11.2018, the respondents passed the impugned order dated

4.12.2018 (reproduced in paragraph No. 2 above), reengaging the

petitioners, albeit, without continuity of service and arrears. The
15
respondents also filed affidavit of compliance before the High

Court.

17. In Contempt Application No. 6218/2017, the petitioner filed

objections to the said affidavit of compliance on 10.12.2018 on

the ground that withholding the payment of arrears is directly in

teeth of the judgment dated 28.11.2017, as confirmed by this

Court vide judgment dated 15.11.2018 and thus, it amounts to

wilful and deliberate disobedience of the order of the Court.

18. Similarly, in Contempt No. 1428/2018, the objections were

first noted in order dated 17.12.2018 and then, a detailed

affidavit of objections was filed on 21.1.2019. The High Court,

vide order dated 22.1.2019, observed that the reinstatement

should be followed by payment of full back wages and directed

the respondents to pay the same within three months. The

relevant portion of the said order is reproduced thus:

“…..

The Supreme Court has observed in the case of Deepali
Gundu Surwase7 that reinstatement ordinarily should be
followed by payment of full back wages.
It is not the case of the respondents that the termination
order has not been set aside by this Court. It is also not the
case of the respondents that the petitioners have been
gainfully employee during the period that they remained
out of service due to termination order which has
7
Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) & Ors.
(2013) 10 SCC 324
16
ultimately been set aside. Therefore, the respondents are
directed to give arrears of salary as are due to the
petitioner after termination order is set aside by this Court.
The back wages of the petitioners in compliance of the
orders passed by this Court in writ jurisdiction shall be
paid to the petitioner within a period of three months.
List this matter after three months on 29.4.2019 by which
date if all arrears of salary are not paid, then the Managing
Director of U.P. Jal Nigam shall appear in person to assist
this Court.”

19. Thereafter, by order dated 1.4.2019, the High Court

recorded that the respondents are prima facie guilty of wilful and

deliberate disobedience and directed their presence before the

Court on next date of hearing, for framing charge. The

respondents assailed the said order by way of SLP(C) No.

10774/2019. This Court, vide order dated 7.5.2019, observed

that after the decision in Civil Appeal No. 11017­11018/2018,

the contempt petitions cannot be continued before the High

Court and be deemed to have been withdrawn to this Court.

Liberty was granted to the petitioners to pursue other remedies

as per law against the impugned orders.

20. The respondents had challenged the High Court’s order

dated 22.1.2019 by way of SLP (C) Diary No. 15756/2019,

wherein this Court by order dated 10.5.2019, had followed the
17
order passed in SLP (C) No. 10774/2019 to withdraw the

contempt petition.

21. In these circumstances, the present contempt petitions in

reference to the order dated 4.12.2018 regarding reengagement

without continuity of service and arrears of back wages, arise for

our consideration.

22. The thrust of the argument of the petitioners in these

petitions is that the effect of judgment of High Court in setting

aside the termination order dated 11.8.2017, as upheld by this

Court is that the termination order stood effaced in its entirety.

As such, it was necessary to issue a formal order of

reinstatement along with continuity in service and arrears of pay

for the relevant period. It is not open to the respondents to give

any other interpretation. It was then urged that the petitioners

were not gainfully employed elsewhere between the dates of

termination and reinstatement and therefore, were entitled to

back wages. In support, reliance has been placed upon the

decision of this Court in Deepali Gundu Surwase8. Further, it

was submitted that denial of back wages would amount to giving

premium to the respondents for their wrongdoings. It was also
8
supra at Footnote No. 7
18
pointed out that in Deepali Gundu Surwase9, the judgment of

this Court in J.K. Synthetics Ltd. v. K.P. Agrawal & Anr.10,

which has been relied upon by the respondents, was held to be

not a good law.

23. On the other hand, the respondents would submit that

neither the High Court in its judgment dated 28.11.2017 nor this

Court in its judgment dated 15.11.2018 had directed payment of

arrears. Reliance was then placed on the decisions of this Court

in J.K. Synthetics Ltd.11 and U.P. State Brassware Corpn.

Ltd. & Anr. v. Uday Narain Pandey 12, to submit that arrears

cannot be claimed as a matter of right upon reinstatement,

unless it has been expressly granted by the Court. In that, the

petitioners are not entitled to arrears. Further, the petitioners

cannot now claim arrears as it would amount to claiming a fresh

relief and is beyond the scope of contempt proceedings, whilst

placing reliance upon the decision of this Court in Director of

Education, Uttaranchal & Ors. v. Ved Prakash Joshi &

Ors.13 It is urged that the petitioners had accepted the terms of

9
supra at Footnote No. 7
10
(2007) 2 SCC 433
11
supra at Footnote No. 10
12
(2006) 1 SCC 479
13
(2005) 6 SCC 98
19
re­engagement without any demur and therefore it was not open

to them to claim back wages.

CONTEMPT PETITIONS AGAINST FRESH TERMINATION
ORDER DATED 2.3.2020:

24. The fresh termination order dated 2.3.2020 came to be

passed pursuant to the liberty given by this Court, leading to

filing of the present petitions. The background facts are that

there were several lapses by few officials of the respondent

corporation and M/s. Aptech Private Limited (the testing agency)

in relation to the selection process for filling up 122 posts of

Assistant Engineers (113 ­ Civil, 5 ­ Electrical/Mechanical and 4

­ Electrical and Electronics/Electronics and

Communication/Computer Science). That as per the agreement

between the respondent corporation and the testing agency, the

testing agency was required to display the answer key for three

days and to take remedial action on the objections received.

Further, the testing agency was also required to retain the data

pertaining to the examination for at least one year. The testing

agency breached the aforesaid conditions and interviews were

conducted, without confirming if the answer key was uploaded or
20
not. The interviews of 34,158 candidates were conducted in

tearing haste on 30.12.2016 and 31.12.2016 and the final result

was released on 3.1.2017, and the appointments were made on

the same day i.e., 3.1.2017. Since non uploading of the answer

key had deprived the candidates of the opportunity to file

objections, the unsuccessful candidates approached the High

Court alleging that the recruitment process was not transparent

and was replete with several illegalities and irregularities. The

High Court, in Writ Petition Nos. A/15948/2017 and

9794/S.B./2017 (preferred by unsuccessful or non­selected

candidates), directed the respondent corporation to inquire into

the said grievance and ensure that appropriate action is taken.

Accordingly, two separate inquiries were conducted by the

officers wherein several irregularities were found. On the basis of

these inquiries, the entire selection process was declared void­ab­

initio and an order to that effect was passed on 11.8.2017. The

said order later on came to be set aside vide judgment dated

28.11.2017 of the High Court.

25. Meanwhile, a complaint was received by the U.P.

Government (Home Department) in regard to various
21
examinations pertaining to recruitment to several posts

(including the present recruitment process). The government

forwarded the same to SIT for investigation. The SIT in its initial

enquiry found that the testing agency had removed the entire

data pertaining to the present recruitment process from the main

server, in violation of the condition to store it for a year. The said

fact was also admitted by the testing agency. Therefore, in

absence of original data, assistance of the Directors of IIT Kanpur

and IIIT Allahabad was sought to segregate the tainted and

untainted candidates. The finding in the two expert reports, inter

alia, was that the response sheet was uploaded after a long gap

after the conclusion of the test which casts a doubt of

manipulation in the response sheets. Further, the data provided

by the testing agency did not contain the Timestamps and Mouse

Clicks of the candidates and there is no mention of the Audit

Trail/Checksum. Therefore, the authenticity of the answers of

the candidates could not be verified and certified. Moreover,

since primary data was not available and the data stored in the

CD could not be authenticated, it was not possible to segregate

the tainted and untainted candidates.

22

26. In the meantime, this Court in Civil Appeal No. 11017­

11018/2018 (against judgment dated 27.11.2017 and judgment

in review dated 25.7.2018), had observed that the expert reports

were not available while passing order dated 11.8.2017 and gave

liberty to pass a fresh reasoned order by considering the previous

inquiry reports and other data that becomes available to the

respondents.

27. In separate proceedings pending before the High Court in

W.P. No. 12222/2017 (against recruitment for other posts), the

Court passed an order dated 21.5.2019 that it was for the

respondent corporation to decide to annul the entire selection

process if the segregation cannot be undertaken. The said order

was upheld by the High Court in Special Appeal (Defective) No.

625/2019 and 626/2019 (intra court appeals) by an order dated

31.7.2019. Furthermore, the SIT sent its final report dated

22.1.2020 to the Government, which was made available to the

respondent corporation on 18.2.2020. The said report mentions

that the testing agency had removed primary data from the cloud

server in furtherance of a criminal conspiracy and recommended

to consider cancelling all the appointments made in the exams
23
conducted by the testing agency (including for the post of

Assistant Engineer). In view of the aforesaid, and in exercise of

the liberty granted by this Court, the order dated 2.3.2020 was

passed on the aforesaid findings. Aggrieved therefrom, the

present contempt petitions have been filed.

28. The case of the petitioners is that the High Court and also

this Court had held that the termination order dated 11.8.2017,

terminating the services of the petitioners (and other appointees)

en masse, was invalid as it was passed without adhering to the

principles of natural justice. However, the respondent

corporation had yet again passed the order dated 2.3.2020

without following the principles of natural justice. By doing so,

the respondent corporation in effect has restored the termination

order dated 11.8.2017, under the guise of the liberty granted by

this Court. The same cannot be countenanced.

29. It was urged that the decision of this Court dated

15.11.2018 contained a categorical direction for the respondent

corporation to pass a fresh reasoned order after providing an

opportunity of hearing to the affected parties. However, the

impugned order had been passed in violation thereof. In support,
24
reliance is placed on the decision of this Court in Haryana

Financial Corporation & Anr. v. Jagdamba Oil Mills & Anr. 14

to contend that the judgments are not to be read like statutes. It

was then urged that liberty to pass a fresh order ‘in accordance

with law’ cannot be stretched to such an extent that would

circumvent compliance with principles of natural justice.

30. It was contended that the reliance placed by the

respondents upon decisions of High Court in W.P. No.

12222/2017 and Special Appeal (Defective) No. 625/2019 and

626/2019 is misplaced and untenable as the same has been

done only to overcome the orders of this Court. It was submitted

that the executive cannot sit in appeal or revision over the

judicial orders. Reliance is placed on the decision of this Court

in Union of India & Anr. v. K.M. Shankarappa 15 and Union of

India v. Ashok Kumar Aggarwal16, to contend that an attempt

to renew an order which had been quashed by the Court, would

amount to legal malice.

31. Per contra, the respondents would submit that the

judgment dated 15.11.2018 had directed the respondents to act
14
(2002) 3 SCC 496
15
(2001) 1 SCC 582
16
(2013) 16 SCC 147
25
upon the High Court’s judgment dated 28.11.2017, wherein the

petitioners were permitted to work on the post of Assistant

Engineers. The respondents duly complied with the

aforementioned judgment of this Court, by appointing the

petitioners vide order dated 4.12.2018. It was then urged that

this Court had granted liberty to the respondents to proceed in

the matter in accordance with law. Therefore, contempt action

cannot be maintained in respect of order dated 2.3.2020 in

absence of any specific direction to afford opportunity to the

petitioners despite the conclusion and opinion recorded by the

competent authority that segregation of tainted and the

untainted was not possible. The respondents contend that in

such a case the entire selection process stood vitiated and no

notice/opportunity need be given to the petitioners. Reliance is

placed upon decisions of this Court in Union of India & Ors. v.

O. Chakradhar17, Veerendra Kumar Gautam & Ors. v.

Karuna Nidhan Upadhyay & Ors.18, M.P. State Coop. Bank

Ltd., Bhopal v. Nanuram Yadav & Ors.19, Nidhi Kaim v.

State of Madhya Pradesh & Ors.20, Kunhayammed & Ors. v.
17
(2002) 3 SCC 146
18
(2016) 14 SCC 18
19
(2007) 8 SCC 264
20
(2016) 7 SCC 615
26
21
State of Kerala & Anr. and Khoday Distilleries Limited v.

Sri Mahadeshwara Sahakara Sakkare Karkhane Limited,

Kollegal22 to contend that the respondents have not violated the

judgment dated 15.11.2018. In law, the decision of High Court

dated 28.11.2017 had merged in the judgment of this Court

dated 15.11.2018. It was then submitted that no additional

direction can be given in a contempt proceeding as the same

would amount to exercise of review jurisdiction. In support of

this plea, reliance is placed upon the decisions in Bihar Finance

Service House Construction Cooperative Society Ltd. v.

Gautam Goswami & Ors.23 and Sudhir Vasudeva, Chairman

and Managing Director, Oil and Natural Gas Corporation

Limited & Ors. v. M. George Ravishekaran & Ors.24. It was

then urged that civil contempt would require wilful disobedience.

Passing of order dated 2.3.2020, assuming it to be a case of

disobedience, the same cannot be termed as wilful. Thus, no

contempt action can be maintained. Reliance was placed on

decision of this Court in Ram Kishan v. Tarun Bajaj & Ors.25,

21
(2000) 6 SCC 359
22
(2019) 4 SCC 376
23
(2008) 5 SCC 339
24
(2014) 3 SCC 373
25
(2014) 16 SCC 204
27
Dinesh Kumar Gupta v. United India Insurance Company

Limited & Ors.26 and Kapildeo Prasad Sah & Ors. v. State of

Bihar & Ors.27. It was then submitted that the implementation

of orders can be insisted depending on its practicability. But, in

the fact situation of this case, giving notice to the petitioners was

not practical. Reliance is placed upon the decision of this Court

in Mohd. Iqbal Khanday v. Abdul Majid Rather28.

RE: W.P. (C) No. 491/2020

32. W.P.(C) No. 491/2020 is filed for quashing and setting aside

the termination order dated 2.3.2020 and to direct the

respondents to reinstate the petitioners with full back wages and

continuity of service. Several applications were filed in the above

petition seeking impleadment as parties. I.A. No. 116777/2020,

I.A. No. 106077/2020 and I.A. No. 93552/2020 have been filed

by the successful candidates. Whereas, I.A. No. 50899/2020 is

filed by the candidates who were declared unsuccessful or non­

selected in the initial merit list, but whose score was revised after

considering the objections to the answer key, so as to enter the
26
(2010) 12 SCC 770
27
(1999) 7 SCC 569
28
(1994) 4 SCC 34
28
merit list. An application for directions being I.A. No.

50896/2020 was filed by the aforesaid unsuccessful candidates

seeking to be appointed as per the revised merit list and to pay

arrears from January, 2017 when they ought to have been

appointed. The applications of the unsuccessful or non­selected

candidates shall be dealt with a little later.

33. The ground for filing the above writ petition is that the

termination order dated 2.3.2020 is violative of Articles 14, 19(1)

(g) and Article 21 of the Constitution of India. That, the

respondent corporation had malafidely tried to improve its case

at every stage by adding new grounds. For instance, in the first

inquiry report dated 29.5.2017, the Chief Engineer stated that

the sanction for a few posts was made by Board of Directors of

the respondent corporation, which was not competent to do so,

as only the Government had authority to sanction posts.

Further, the candidates with lower marks in the written test were

given higher marks in the interview and that the entire selection

process was rushed through within a period of less than one

month from the date of advertisement issued on 13.12.2016 and

appointment orders issued on 3.1.2017, presumably because
29
election code of conduct was about to come into force.

Thereafter, in second inquiry report dated 7.7.2017, the Chief

Engineer added that the respondent corporation could not have

recruited without permission of the Finance Department of the

Government in view of the loan of Rs.300 crores given by the

Government to the respondent corporation. Further, the

examination results were published without inviting objections,

some of the answers in the answer key and some questions in the

question paper were wrong and that answer sheets of 4

successful candidates were identical.

34. Then, in the termination order dated 11.8.2017, it was

added that the permission of Election Commission of India

should have been taken as the Model Code of Conduct had come

into effect prior to joining date. Before the High Court, it was

urged that the respondent corporation was facing shortage of

funds and was not in a position to pay so many additional

employees and that provision was not made for reservation of

posts in accordance with law. Thereafter, in the review

application, the ground taken was that on the basis of
30
revaluation, some of the selected candidates would not even have

been eligible for the interview.

35. The petitioners would submit that the writ petition is

maintainable in view of violation of their fundamental rights

under Articles 14, 19(1)(g) and 21 of the Constitution. Reliance is

placed upon the decision of this Court in Romesh Thappar v.

State of Madras29. It was urged that the action of the

respondents in adding new grounds at each stage shows that the

respondent corporation despite being ‘State’ under Article 12 of

the Constitution, has been prosecuting the matter like a

desperate private litigant, under dictation.

36. The petitioners would then urge that the impugned order

had been passed by the respondents whilst relying upon the

opinion of experts that there was a possibility that the response

filed by certain candidates ‘might have been doctored’, which is a

mere speculation, without any data in its support. It was

submitted that the data upon which the respondents relied, to

pass the order dated 2.3.2020, was available even at the time of

passing of the judgment dated 15.11.2018 by this Court; and is

in the nature of ‘being repacked in a fresh package’ and the same
29
1950 SCR 594
31
cannot be permitted as per decision of this Court in Manohar

Lal (Dead) by LRs. v. Ugrasen (Dead) by LRs. & Ors.30.

37. It was urged that the respondents deliberately did not ask

the testing agency for checksum data until one year period of

storing had expired. It was then pointed out that the testing

agency, in an affidavit before the High Court (in W.P. (S/S) No.

7647/2020 – relating to another examination), had stated certain

facts concerning the present selection process. Particularly, that

the primary data was not deleted but merely moved from the

cloud server to data storage centre in accordance with its Data

Retention Policy and is still available with the testing agency and

that the respondent corporation had never approached them for

obtaining the same. Therefore, the opinion given by the two

experts was based on conjectures and surmises that the primary

data is not available.

38. It was submitted that the SIT Report dated 22.1.2020 and

the reports of Central Forensic Science Laboratory (CFSL) dated

28.8.2019, 19.11.2019, 11.12.2019 and 1.1.2020 (considered by

the SIT in its report) relied upon by the respondents in passing

the impugned order ought to have been served upon the
30
(2010) 11 SCC 557
32
petitioners before taking any adverse action against them, in light

of dictum in Union of India & Ors. v. S.K. Kapoor31. Further,

the SIT report is in the nature of a final report by an investigative

agency and cannot be treated as conclusive proof of malpractices.

Moreover, the petitioners cannot be made to suffer at the cost of

any malfeasance by the testing agency.

39. It was urged that the documents relied upon by the

respondents have never been proved or subjected to scrutiny by a

fact­finding authority or tribunal, nor had the petitioners been

given an opportunity to meet the assertions made therein. That

the testing agency had by letter dated 7.11.2017 intimated the

SIT that primary data was stored in data storage facility and not

the hard drive, despite which, the SIT raided its office on

10.9.2018 and seized random hard drives of ‘dump data’ and

sent the same to CFSL. Therefore, the very basis of CFSL’s

analysis is flawed.

40. Further, despite the finding in SIT report that the testing

agency was a part of criminal conspiracy for deleting the primary

data, the respondents continued to engage the testing agency for

conducting examinations. The respondent corporation procured a
31
(2011) 4 SCC 589
33
letter dated 31.8.2020 from the Addl. Chief Secretary,

Government of U.P. recommending to the DGP, SIT that the

testing agency be blacklisted, about three years after the

irregularities came to its knowledge, which clearly demonstrates

malafides. It was then submitted that there is no substance in

the argument that the selection process was hastily completed as

the same was in full compliance with the advertisement and

applicable SoP and Rules of the respondent corporation.

Moreover, the said argument was rejected by the High Court in

judgment dated 28.11.2017.

41. It was then urged that the only liberty granted to the

respondents is to rework the answer sheets based on the

corrections, after giving candidates an opportunity of hearing.

Further, the respondent corporation had failed to discharge the

burden that the response sheets were manipulated and argued of

inability to verify the veracity of examination process, which

cannot be permitted.

42. The submission that principles of natural justice were

violated was akin to the submissions made in the above contempt

petitions. It was submitted that there can be no exception to the
34
principle of audi alter partem. Reliance is placed upon decision of

this Court in Nisha Devi v. State of Himachal Pradesh &

Ors.32 and Indian Institute of Information Technology,

Deoghat Jhalwa, Allahabad & Anr. v. Dr. Anurika Vaish &

Ors.33 to submit that when termination order was set aside for

not hearing the affected parties before passing it and liberty is

granted to pass a fresh reasoned order, the employer­State

cannot pass another fresh termination order without hearing the

affected persons yet again.

43. On the other hand, the respondents would raise a

preliminary objection as regards the maintainability of the Writ

Petition as the alternate remedy under Article 226 of the

Constitution was not exhausted, whilst placing reliance on

decisions of this Court in P.N. Kumar & Anr. v. Muncipal

Corporation of Delhi34, Kanubhai Brahmbhatt v. State of

Gujarat35, Kunga Nima Lepcha & Ors. v. State of Sikkim &

Ors.36, Confederation of All Nagaland State Services

32
(2014) 16 SCC 392
33
(2017) 5 SCC 660
34
(1987) 4 SCC 609
35
1989 Supp (2) SCC 310
36
(2010) 4 SCC 513
35
Employees’ Assn. & Ors. v. State of Nagaland37 and Amrit

Lal Berry v. Collector of Central Excise, New Delhi & Ors. 38.

It was also pointed out that parties similarly placed to that of the

petitioners filed writ petition before the High Court being W.P. (C)

No. 13083/2020 (Service Single) and even the petitioners ought

to have approached High Court.

44. With reference to petitioners’ reliance on affidavit filed by

the testing agency, the respondents would submit that the onus

was on the testing agency to give correct and complete data to

the SIT for investigation. It was pointed out that the SIT had

recorded the statement of Mr. Vishvajeet Singh, Technical and

Delivery Head of the testing agency, wherein he stated that the

examination data was kept in the cloud only for a month, after

which it was downloaded onto the ‘local environment’ ­ the hard

disk. Further, the testing agency had itself accepted in the

certificate provided to the SIT under Section 65­B of the Indian

Evidence Act, 187239, that the original primary data had been

deleted and the backup data does not contain any system logs.

And that, the deletion of primary server data made it impossible

37
(2006) 1 SCC 496
38
(1975) 4 SCC 714
39
For short, ‘the 1872 Act’
36
to re­analyse the response sheets using the secondary data

provided in the form of CDs, as the same is not accurate. It was

then urged that the respondent corporation had taken prompt

action against its officials involved in the irregularities committed

in the recruitment process.

45. It was submitted that the respondents had rightly cancelled

the entire recruitment process and terminated the services of all

the recruits in accordance with law as the illegality was of such

nature that the tainted candidates could not have been

segregated from the untainted and the veracity of the entire

examination process was doubtful. Further, it was urged that if

the tainted and untainted candidates could be segregated, the

show cause notice would have been issued to the concerned

candidate. However, since the segregation was not possible and

did not take place, the entire recruitment process had to be

cancelled in view of O. Chakradhar40. Thus, no individual show

cause notice was necessary in law. This submission of the

respondents is similar to the stand taken by them in the above

contempt petitions.

40
supra at Footnote No. 17
37

46. It was then urged that even if an opportunity of hearing is

given to the candidates, it would be an empty formality as the

respondents do not have primary data to compare actual correct

answers given by the candidates, as it would be impossible to

segregate the tainted and untainted candidates in absence of the

primary data. Even if an opportunity of hearing is granted, the

decision of the respondent corporation would remain the same.

Reliance in that regard was placed upon decision of this Court in

Dharampal Satyapal Limited v. Dy. Commissioner of

Central Excise, Gauhati & Ors.41.

RE: IMPLEADMENT APPLICATIONS BY NON­SELECTED
CANDIDATES:

47. Coming to the impleadment applications filed by non­

selected candidates, their case is that upon objections raised by

the candidates that the answer key was not released, the

respondents had published the answer sheet and answer key on

28.2.2017. The applicants found various errors therein and

being aggrieved, they had filed W.P. Nos. 10667/2017 and

21876/2017 before the High Court, wherein the High Court
41
(2015) 8 SCC 519
38
directed the respondents to conduct an enquiry in the alleged

irregularities. Pursuant thereto, an inquiry was conducted

wherein the errors were taken note of and accordingly, the testing

agency had submitted a revised list to the respondents. In that

revised merit list, these applicants had stood higher in the merit

list than the appointees. The respondents, instead of reworking

the appointments in accordance with the revised list, had

annulled the entire selection process first vide order dated

11.8.2017 (which was later set aside) and then again by order

dated 2.3.2020.

48. These applicants would submit that various grounds noted

by the respondents in the order dated 2.3.2020 had already been

rejected by the High Court in its judgment dated 28.11.2017,

whereby the earlier order dated 11.8.2017 was set aside. The

High Court in the said judgment had held that there was no

prohibition imposed against appointment on regular selection in

the model code of conduct and the post of Assistant Engineers

were regular in nature. That the requirement mandating prior

sanction of the State Government was not applicable to the

present case as the requirement was made by G.O. dated
39
13.12.2016 whereas the selection process in question had

commenced on 19.11.2016. That the permission to advertise the

posts was made by the Chairman, which was ratified by the

Board of Directors of the respondent corporation. The argument

of malafide in the selection process was rejected by the High

Court and the said judgment was upheld by this Court.

49. It was urged that the testing agency undertook the exercise

of rectification of incorrect entries in the key and submitted a

report to the respondents dated 8.8.2017 containing the revised

merit list and therefore, the only option available to the

respondents was to act upon the revised merit list. It was

submitted that cancellation of entire selection process (by order

dated 2.3.2020) when it was merely a case of certain infirmities

in the evaluation, would be unreasonable, arbitrary and

disproportionate. In support of this plea, reliance is placed upon

decisions of this Court in Union of India & Ors. v. Rajesh P.U.

Puthuvalnikathu & Anr.42, Rajesh Kumar & Ors. v. State of

Bihar & Ors.43 and K. Channegowda & Ors. v. Karnataka

Public Service Commission & Ors.44.

42

(2003) 7 SCC 285
43
(2013) 4 SCC 690
44
(2005) 12 SCC 688
40

50. It was then urged that the principle of proportionality has

been recognised as an aspect of Article 14 by this Court in

Modern Dental College and Research Centre & Ors. v. State

of Madhya Pradesh & Ors.45 and in view whereof, the

cancellation of entire selection process, being disproportionate, is

violative of Article 14.

51. Further, it was urged that even in the case of malpractice

and malafide, entire selection process should not be cancelled

but the tainted and untainted candidates ought to be segregated.

In support of this plea, reliance was placed on decisions of this

Court in Inderpreet Singh Kahlon & Ors. v. State of Punjab

& Ors.46, Girjesh Shrivastava & Ors. v. State of Madhya

Pradesh & Ors.47 and Joginder Pal & Ors. v. State of Punjab

& Ors.48. It was then urged that the mandate of decisions of

High Court dated 28.11.2017 and 25.7.2018 and of this Court

dated 16.3.2018 and 15.11.2018 was to re­work the answer

sheets and a limited liberty to that effect was given to the

respondents. The applicants would then take a stand similar to

45
(2016) 7 SCC 353
46
(2006) 11 SCC 356
47
(2010) 10 SCC 707
48
(2014) 6 SCC 644
41
that of the petitioners in the above contempt petitions, to submit

that the judgment of a court has to be understood in its entirety

and cannot be read as a statute, whilst relying upon the decision

of this Court in Purnendu Mukhopadhyay & Ors. v. V.K.

Kapoor & Anr.49. Therefore, the order dated 2.3.2020 passed by

the respondents is against the mandate of the above judgments.

RE: TRANSFER PETITION:

52. In T.P. (C) No. 1209/2020, the petitioners have approached

this Court under Article 139A for transfer/withdrawal of Writ

Petition (C) No. 13083/2020 (Service Single) pending before the

High Court to this Court as the subject matter of the said writ

petition (impugned order dated 2.3.2020) is already pending

challenge before this Court in W.P. No. 491/2020 and companion

contempt petitions. In W.P. (C) No. 13083/2020 (Service Single)

before the High Court, the petitioners have relied upon opinion of

their own expert, Dr. A.V. Subrahmanyam, Assistant Professor at

IIIT Delhi, who had discredited the IIT and IIIT reports and

opined that the ‘checksum’ method of fingerprinting not having

49
(2008) 14 SCC 403
42
been deployed shall have no bearing on the candidates as they

had no role to play in the same.

53. These petitioners would submit that the issue of veracity

and weight of experts shall be examined in a departmental

inquiry and cannot be gone into before this Court. Further, the

petitioners urge that they would like to present their expert and

to cross examine other experts, so that the truth could be

distilled. That the respondents ought to have had a departmental

inquiry by giving the petitioners an opportunity to hear, so that

the parties could have led their evidence and the decision should

have been taken on the basis of the outcome of such inquiry.

54. We have heard Mr. Mukul Rohatgi, Ms. Meenakshi Arora,

Mr. Ravindra Raizada, learned senior counsel, Mr. Gaurav

Mehrotra, Mr. Kumar Shivam and Mr. Rohit Anil Rathi, learned

counsel ­ for the petitioners; Mr. Nizam M. Pasha for the

impleaded petitioners; Ms. Sanskriti Pathak, learned counsel for

applicants (candidates successful as per revised merit list); and

Mr. Vikas Singh, learned senior counsel for the respondents.

55. The broad points that arise for our consideration are:
43

1. Whether the order dated 4.12.2018 passed by the

respondents is in the teeth of judgment of this Court dated

15.11.2018, requiring compliance of judgment of High Court

dated 28.11.2017, for deliberate failure to reinstate with

continuity of service and to pay arrears to the petitioners?

2. Whether the termination order dated 2.3.2020 passed by

the respondents is in wilful disobedience of and in the teeth

of judgment of this Court dated 15.11.2018, for not

following the principles of natural justice and is thus non­

est in law?

CONSIDERATION

56. At the outset, we deem it appropriate to first answer the

preliminary objection regarding maintainability of writ petition

under Article 32 of the Constitution of India. We have no

hesitation in rejecting this preliminary objection for more than

one reason. It is well­established position that if the termination

order is assailed on the ground of violation of principles of

natural justice or fundamental rights guaranteed under Part III of

the Constitution, such a grievance can be brought before the

constitutional Court including by way of writ petition under
44
Article 32 of the Constitution of India. It is a different matter

that this Court may be loath in entertaining the grievance directly

under Article 32 and instead relegate the petitioner(s) before the

High Court to first exhaust the remedy under Article 226 of the

Constitution of India. That is also because this Court will then

have the advantage of the judgment of the High Court on relevant

aspects. In other words, it is not a question of maintainability of

writ petition, but one of exercise of discretion with

circumspection in entertaining writ petition under Article 32 in

such matters. Further, in the present case, there are other

proceedings pending in the form of contempt petitions and a

transfer petition wherein the termination order dated 2.3.2020 is

the subject matter. Thus, the arguments in these cases will be

overlapping. In that, the self­same order has been impugned in

the writ petition filed before this Court. The fact that other

affected similarly placed persons have filed writ petitions directly

before the High Court and which are stated to be pending, can be

no impediment for this Court in entertaining and deciding the

writ petition. For, the issue regarding the purport of orders

passed by this Court needs to be answered appropriately in

contempt petitions only by this Court. It is not open to the High
45
Court to interpret or explain the order passed by this Court in

previous proceedings between the parties. The High Court can

only follow the dictum of this Court which is binding on it.

Accordingly, we are not impressed by the preliminary objection

taken by the respondents regarding the maintainability of writ

petition under Article 32 of the Constitution by similarly placed

persons directly filed before this Court to assail the impugned

order dated 2.3.2020, which is also subject matter of second set

of contempt petitions.

57. As aforesaid, we are dealing with two sets of contempt

petitions. The first set complains about non­compliance of order

dated 28.11.2017 passed by the High Court, which came to be

upheld by this Court consequent to disposal of special leave

petitions being SLP(C) Nos. 5410­5419/2018 vide order dated

16.3.2018, and more particularly, reiterated by this Court in its

order dated 15.11.201850 directing the respondents to first act

upon the decision of the High Court dated 28.11.2017 and only

thereafter proceed in the matter in accordance with law by

passing a fresh, reasoned order. It is not in dispute that after the

judgment of this Court dated 15.11.2018, a consequential order
50
supra at Footnote No. 2
46
was passed by the High Court on 26.11.2018. The respondents

thus issued order dated 4.12.2018 (reproduced in paragraph 2

above), reengaging the petitioners on the concerned posts without

continuity of service and arrears.

58. The grievance of the petitioners is that the unambiguous

direction given by the High Court and upheld by this Court was

to reinstate the petitioners on the same position with full back

wages. No more and no less. The respondents were, therefore,

obliged to issue order of reinstatement with continuity of service

and back wages. The argument is attractive at the first blush,

but on deeper scrutiny of the orders passed by the High Court

and finally by this Court, it is noticed that the direction is limited

to permit the petitioners to work on the posts of Assistant

Engineer (Civil), Assistant Engineer (Electric/Mechanical) and

Assistant Engineer (Computer Science and Electronics and

Communication/Electrical and Electronics) and to pay them

regular salary month by month as and when it becomes due and

payable to them. That can be discerned from the last paragraph

of the order dated 28.11.2017 (reproduced in paragraph 9 above).

On similar lines, the High Court disposed of another writ petition
47
challenging the termination order dated 11.8.2017 passed by the

respondents, vide order dated 12.12.2017 (reproduced in

paragraph 10 above). In these orders, the expression used by the

High Court is “to permit the petitioners to work on the concerned

posts and to pay them regular salary as and when the same

accrues to them”. The order dated 28.11.2017 passed by the

High Court was upheld by this Court on 16.3.2018. In that

order, after recording contentions of both sides, while disposing

of petitions it is observed as follows: ­

“…..

Be that as it may, having gone through the impugned
judgment, we do not find that the door is yet closed. It is
for the petitioners, if they are so advised, to approach the
High Court itself for a liberty to re­work the answer sheets
on the basis of the corrections, in case the High Court is
also of the view that the corrections need to be made.
…..”

The respondents had, therefore, pursued review petition as per

the liberty given by this Court. The same came to be disposed of

by the High Court on 25.7.2018. On perusal of that order

(reproduced in paragraph 12 above), there is nothing to indicate

that the High Court expressly directed reinstatement of

petitioners with continuity of service and back wages, as such.

Even in the decision of this Court dismissing the appeals filed by
48
respondents, vide order dated 15.11.2018 (reproduced in

paragraph 14 above), no such direction has been issued. The

limited direction is that the respondents must first act upon the

decision of the High Court dated 28.11.2017 and only thereafter

proceed in the matter in accordance with law by passing a fresh,

reasoned order.

59. After cogitating over the orders passed by the High Court

and this Court referred to above, it becomes amply clear that the

High Court had quashed and set aside the first termination order

dated 11.8.2017 solely on the ground that it was passed in

violation of principles of natural justice and further observed that

the selection as a whole was not liable to be cancelled without

undertaking an exercise to separate the tainted candidates from

the untainted. While so observing, it was made clear that the

respondents were free to pass a fresh, reasoned order in

accordance with law.

60. In light of the aforesaid discussion, we have no hesitation in

accepting the explanation offered by the respondents that going

by the text of the orders passed by the High Court and this

Court, it was open to the respondents to issue order (dated
49
4.12.2018) to reengage the petitioners on the same posts from

the date of order and to pay them regular salary month by month

thereafter or as and when it would accrue to them. The orders

passed by the High Court and this Court, as aforementioned, do

not contain explicit direction to reinstate the petitioners with

continuity of service and back wages as such. Instead, the

expression used is only “to permit the petitioners to work on the

posts” which were held by them at the time of their termination

and “to pay them regular salary month by month” and “as and

when the same accrues to them”. Thus understood, it is not a

case of wilful disobedience of the orders of the Court.

61. Arguendo, the interpretation as propagated by the

petitioners of the stated orders dated 28.11.2017 passed by the

High Court and 16.3.2018 of this Court, is a possible view. Being

another possible view, the benefit must then be given to the

respondents. For, it would certainly not be a case of wilful

disobedience as enunciated by this Court in Sushila Raje

Holkar v. Anil Kak (Retired)51 which follows the dictum of this

Court in State of Bihar v. Rani Sonabati Kumari52, Purnendu

51
(2008) 14 SCC 392
52
AIR 1961 SC 221
50
53
Mukhopadhyay and Maruti Udyog Limited v. Mahinder C.

Mehta & Ors.54.

62. It is well settled that contempt action ought to proceed only

in respect of established wilful disobedience of the order of the

Court. This Court in paragraph 12 of the decision in Ram

Kishan55 observed thus: ­

“12. Thus, in order to punish a contemnor, it has to be es­
tablished that disobedience of the order is “wilful”. The
word “wilful” introduces a mental element and hence,
requires looking into the mind of a person/contemnor
by gauging his actions, which is an indication of one’s
state of mind. “Wilful” means knowingly intentional,
conscious, calculated and deliberate with full knowl­
edge of consequences flowing therefrom. It excludes ca­
sual, accidental, bona fide or unintentional acts or genuine
inability. Wilful acts does not encompass involuntarily or
negligent actions. The act has to be done with a “bad
purpose or without justifiable excuse or stubbornly, ob­
stinately or perversely”. Wilful act is to be distinguished
from an act done carelessly, thoughtlessly, heedlessly or in­
advertently. It does not include any act done negligently or
involuntarily. The deliberate conduct of a person means
that he knows what he is doing and intends to do the
same. Therefore, there has to be a calculated action
with evil motive on his part. Even if there is a disobedi­
ence of an order, but such disobedience is the result of
some compelling circumstances under which it was not
possible for the contemnor to comply with the order, the
contemnor cannot be punished. “Committal or sequestra­
tion will not be ordered unless contempt involves a degree
of default or misconduct.” (Vide S. Sundaram Pillai v. V.R.
Pattabiraman56
, Rakapalli Raja Ram Gopala Rao v. Nara­

53
supra at Footnote No. 49
54
(2007) 13 SCC 220
55
supra at Footnote No. 25
56
(1985) 1 SCC 591
51
gani Govinda Sehararao57, Niaz Mohammad v. State of
Haryana58
, Chordia Automobiles v. S. Moosa59, Ashok Paper
Kamgar Union v. Dharam Godha60
, State of Orissa v. Mohd.
Illiyas61
and Uniworth Textiles Ltd. v. CCE62).”
(emphasis supplied)

It is useful to recall the exposition in Director of Education,

Uttaranchal63 and also in K.G. Derasari & Anr. v. Union of

India & Ors.64; wherein this Court observed that in exercising

contempt jurisdiction, the primary concern must be whether the

acts of commission or omission can be said to be contumacious

conduct of the party who is alleged to have committed default in

complying with the directions given in the judgment and order of

the Court. Further, the Court ought not to take upon itself power

to decide the original proceedings in a manner not dealt with by

the Court passing the judgment and order. It is also not open to

go into the correctness or otherwise of the order or give additional

directions or delete any direction, which course could be adopted

only in review jurisdiction and not contempt proceedings.

57

(1989) 4 SCC 255
58
(1994) 6 SCC 332
59
(2000) 3 SCC 282
60
(2003) 11 SCC 1
61
(2006) 1 SCC 275
62
(2013) 9 SCC 753
63
supra at Footnote No. 13
64
(2001) 10 SCC 496
52

63. Reliance placed on Deepali Gundu Surwase65 by the

petitioners is inapposite. It was a case of wrongful termination

and entitled the petitioner therein relief of back wages. The

respondents have instead relied upon the exposition in P.

Karupaiah (Dead) through Legal Representatives v. General

Manager, Thruuvalluvar Transport Corporation Limited66

and J.K. Synthetics Ltd.67 which has restated the legal position

regarding back wages. It has been held that it is not automatic

or natural consequence of reinstatement. Suffice it to mention

that for reasons already recorded hitherto including that the

limited direction given by the High Court and not disturbed by

this Court was to permit the petitioners to work on the concerned

posts and to pay them regular salary as and when the same

accrues to them, the plea under consideration needs to be

recorded only to be rejected.

64. Be that as it may, keeping in mind the settled legal position,

we have no hesitation in concluding that the case at hand does

not qualify the test of contumacious, much less wilful

disobedience of the order of the Court by the officers of the

respondents as such. In other words, the basis on which the

65
supra at Footnote No. 7
66
(2018) 12 SCC 663 (paragraph 10)
67
supra at Footnote No. 10
53
contempt action against the respondents in reference to order

dated 4.12.2018 issued by the respondents, has been initiated is

tenuous. Hence, the same is rejected.

65. We would now revert to the second set of contempt

petitions, which emanate from termination order dated 2.3.2020

issued by the respondents. These petitions essentially proceed on

the allegation that the respondents committed wilful disobedience

of the order of this Court dated 15.11.2018 passed in Civil Appeal

Nos. 11017­11018/2018 in not affording prior opportunity of

hearing to the petitioners and similarly placed persons despite

express direction contained in the said order. For considering

this grievance, we may reproduce the relevant portion of the

order dated 15.11.2018, which reads thus: ­

14. The limited plea taken before this Court as noted in
the first paragraph of order dated 16th March, 2018 was to
allow the appellants to re­work the question and answer
sheets and revise the merit list and issue fresh, reasoned
order after providing opportunity of hearing to the
affected candidates. That option has been kept open. It
is for the appellants to pursue the same. In other words,
the appellants must, in the first place, act upon the
decision of the High Court dated 28 th November, 2017
whereby the order passed by the Chief Engineer dated
11th August, 2017 has been quashed and set aside. The
appellants may then proceed in the matter in
accordance with law by passing a fresh, reasoned order.
Indeed, while doing so, the appellants may take into
consideration the previous inquiry reports as also all
other relevant material/documents which have become
available to them. We make it clear that we have not
54
dilated on the efficacy of the opinion given by the
experts of the “IIIT Allahabad and IIT Kanpur.”
(emphasis supplied)

66. The Court had set aside the termination order dated

11.8.2017 issued by the respondents, solely on the ground that it

was in violation of principles of natural justice. At the same time,

liberty was given to the respondents to pass a fresh order in

accordance with law including by undertaking exercise of

segregating the tainted from the untainted candidates. Indeed,

the Court expected that before taking any precipitative action

against the petitioners, the respondents must afford opportunity

of hearing to them. This observation is contextual. It would

come into play dependent upon the opinion eventually formed by

respondents after due consideration of the material collated by

them to distinguish the tainted and untainted candidates, was

possible or otherwise. Had the respondents concluded that it

was possible to segregate tainted from untainted candidates, they

would have been obliged to comply with the directions given by

the High Court and restated by this Court in order dated

15.11.2018, to afford prior opportunity of hearing to the

petitioners and similarly placed persons before passing fresh,

reasoned order. However, from the subject termination order
55
dated 2.3.2020, which is a speaking order, it is crystal clear that

after due enquiry and taking into consideration all aspects of the

matter, in particular the enquiry reports and the opinion of the

experts including final report of SIT, the respondents were of the

considered opinion that it was not possible to segregate tainted

from the untainted candidates for reasons recorded in that order.

We are not inclined to go into the correctness of the said reasons,

because it is subject matter of challenge in writ petitions pending

before the High Court (as pointed out in Annexure R­29 of the

Supplementary Affidavit), filed not only by Assistant Engineers,

but also by Junior Engineers, Routine Grade Clerks and others.

67. We would, therefore, confine our analysis as to whether the

respondents were justified in passing subject termination order

dated 2.3.2020 without giving prior opportunity of hearing to the

petitioners. In light of the conclusion reached by the respondents

in the stated order dated 2.3.2020 — that it was not possible to

segregate the tainted from the untainted candidates, in law, it

must follow that the respondents could annul the entire selection

process and pass the impugned order without giving individual

notices to the petitioners and similarly placed persons. We are
56
fortified in taking this view in terms of the exposition in O.

Chakradhar68 and the subsequent decisions of this Court in

Joginder Pal69, Veerendra Kumar Gautam70 and Vikas

Pratap Singh & Ors. v. State of Chhattisgarh & Ors. 71,

adverted to in paragraph 12 of the judgment dated 15.11.2018 72

of this Court while disposing of earlier appeals between the

parties.

68. In other words, since the respondents have concluded that

it was not possible to segregate tainted from the untainted

candidates because of the reasons noted in the termination order

dated 2.3.2020, in law, there was nothing wrong in respondents

issuing the said termination order without affording prior

opportunity to the petitioners and similarly placed persons. Had

it been a case of even tittle of possibility in segregating the

tainted from the untainted candidates, which exercise the

respondents were permitted to engage in, in terms of the decision

of this Court dated 15.11.2018, it would have been a different

matter. In that case alone, the petitioners and similarly placed

68
supra at Footnote No. 17
69
supra at Footnote No. 48
70
supra at Footnote No. 18
71
(2013) 14 SCC 494
72
supra at Footnote No. 2
57
persons could complain of wilful disobedience of the order passed

by this Court dated 15.11.2018.

69. Having said thus, we must conclude that even the second

set of contempt petitions in reference to the subject termination

order dated 2.3.2020 being in violation of direction given by this

Court to afford opportunity to the petitioners vide order dated

15.11.2018, must fail.

70. Considering the fact that multiple writ petitions have been

filed by different groups of affected persons before the High Court

being similarly placed persons against the subject termination

order dated 2.3.2020 and as the same are pending, as aforesaid,

to obviate even slightest of prejudice being caused to the

petitioners in those cases, who are not before us, we refrain from

examining the arguments regarding the justness and validity of

the stated order and leave all other contentions open to the

parties to be pursued before the High Court in pending

proceedings. Consequently, we would dispose of the transfer

petition, as well as, the writ petition by relegating the petitioners

therein including the applicants in intervention/impleadment

applications, to pursue their grievance in the form of writ
58
petitions before the High Court, which could be heard by the

High Court analogously along with all other pending writ

petitions involving overlapping issues to obviate any

inconsistency and conflicting findings regarding the same subject

matter in any manner. Indeed, in the event the High Court

agrees with the conclusion recorded by the respondents in the

stated order dated 2.3.2020, that it is not possible to segregate

the tainted from the untainted candidates, the High Court would

be bound by the observations made by us in this judgment. For,

in that eventuality, in law, it would not be necessary for the

respondents to give prior hearing or afford opportunity to the

petitioners and similarly placed persons before annulling the

entire selection process and issuing the termination order under

challenge.

71. Accordingly, while discharging the show­cause notices

issued in the concerned contempt petitions and disposing of all

the contempt petitions, we deem it appropriate to relegate the

petitioners in the transfer petition and the writ petition filed in

this Court, before the High Court to pursue their remedy under

Article 226 of the Constitution to assail the order dated 2.3.2020
59
with further direction that all petitions involving overlapping

issues and referred to in Annexure R­29 of the Supplementary

Affidavit or any other writ petition pending or to be filed, list

whereof be furnished by the parties to the High Court, for being

heard analogously. We request the High Court to expeditiously

dispose of the writ petitions, leaving all contentions other than

decided in this judgment, open to the respective parties to be

raised before the High Court. The same be decided on its own

merits as per law.

72. In view of the above, we pass the following order: ­

(1) Show­cause notices issued in the respective contempt

petitions stand discharged. Contempt petitions are

dismissed;

(2) The transfer petition stands rejected, as a result of

which the writ petitions referred to therein will now

proceed before the High Court in terms of this

judgment;

(3) The writ petition is disposed of with liberty to the

petitioners therein including applicants in

intervention/impleadment applications to pursue
60
their remedy before the High Court by way of writ

petition under Article 226 of the Constitution, if so

advised. That writ petition be decided on its own

merits in accordance with law keeping in mind the

observations made in this judgment along with other

pending or fresh writ petitions involving similar

issues; and

(4) We request the High Court to take up all writ petitions

involving overlapping issues together for analogous

hearing expeditiously. We leave all contentions open

except the issues decided in this judgment.

73. There shall be no order as to costs. All pending

interlocutory applications stand disposed of in terms of this

judgment.

………………………………J.

(A.M. Khanwilkar)

………………………………J.

(B.R. Gavai)

New Delhi;

June 03, 2021.

61



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