STATE OF U P Vs. PAWAN KUMAR SINGH

JUDGEMENT

(1.) THIS is a bunch of 30 connected appeals against the judgment of the learned Single Judge of this court dated 8.12.08. By that judgement the learned Single Judge has allowed the writ petitions of the respondents against the order of the State Government dated 11.9.07, 18.9.07 and 30.9.07 cancelling the selection/appointments of the writ petitioners. A massive recruitment drive of constables of the civil police, PAC and on several posts in the Wireless Wing of the police department was made in the year 2005-06. The recruitments were made by 51 recruitment Boards at different places in the State of Uttar Pradesh. As a result of the drive some 18 thousand and odd constables were selected. It is stated by the respondents that about 6 thousand of them were given appointment and some of them had put in service of about 2- 3 years while the remaining of the selected candidates were sent for training and were receiving a stipend of about Rs.3 thousand per month. The recruitments were made at the time when the Mulayam Singh Govt. was in power in the State of Uttar Pradesh. Shortly after the new Govt. of Km. Mayawati was inducted on 13.5.07 three complaints of sitting MLAs of the ruling party were addressed to the Chief Minister in which allegations relating to irregularities in the selection and corruption in recruitment were highlighted. The Secretary of the Chief Minister forwarded the complaints to the Principal Secretary, Home Deptt. and the Principal Secretary, Home Deptt in turn sent the complaints to the DGP. The DGP by letter dated 13.6.07 constituted a committee of 4 members headed by Sri Sailja Kant Misra as Chairman to investigate into the complaints. It also appears that looking into the enormity of the exercise that was to be conducted by the Committee the DGP passed an order that the committee may take assistance of certain officers. The committee fragmented into separate sub committees to enquire into the irregularity of the selections at the various recruitment centres. As a result of the exercise conducted by the sub Committees some 51 reports were submitted. The committee recommended the cancellation of the selection in 42 recruitment centres and cleared selections made by 9 recruitment Boards. The reports were submitted by the Director General of Police to the State government. Out of the nine reports clearing the selections one has been accepted by the State Government, namely report no. 25 in respect of Saharanpur Recruitment Centre and one pertaining to Sitapur is pending reconsideration by another committee. It has been stated at the Bar by Sri R.N. Singh Senior Advocate learned counsel for the the respondents that Saharanpur happens to be the constituency of Km. Mayawati. The remaining of the seven reports in which selections were cleared are pending consideration of the State Government. The learned Single Judge has allowed the writ petitions holding that the constitution of the four member Misra committee itself was invalid as two of its members Shailja Kant Misra Chairman and Javed Akhtar suffered from the vice of official bias; that certain officers had been permitted by the Director General of Police to assist the Misra committee and though these officers had never been inducted as members of the Misra Committee were included in the sub committees into which the Misra Committee under orders of its Chairman had fragmented itself and the enquiry was actually conducted by the sub committees and the enquiry reports were submitted under the signatures of such officers who were to assist the Committee along with signatures of Shailja Kant Misra or one other member of the Misra Committee and the reports were therefore invalid; that the reports of the Misra Committee lacked fairness being vitiated by the fact that the same standards which were applied by the committee for clearing the selections in respect of some recruitment centres such as Deoria report No.23 were not applied to the selections, which have been found by the Committee to be tainted; that the entire selections made by a recruitment centre could not have been cancelled whole hog by the State Government and an exercise ought to have been made to segregate the selections tainted from the untainted ones. As regards the approval of the reports by the DGP and the order of the State Government cancelling the selections impugned in the writ petitions the learned Single Judge found that neither the DGP nor the State Government had applied mind to the facts of the case and the decision of the State government in respect of the reports was taken in a hasty manner. The learned Single Judge also took serious note of the fact that although the officers who had conducted the recruitment were also in the dock no punishment had been given them nor any effort has been made by the State to complete the disciplinary proceedings against them while the writ petitioners have been fastened with the consequence of cancellation of their selections/ appointments. THIS order of the learned Single Judge has been challenged by the State in all these appeals. We have heard S/Sri P.P.Rao and P.S.Patwaliya learned Senior Advocates on behalf of the State assisted by Chief Standing Counsel and Sri Piyush Shukla Standing Counsel. On behalf of the writ petitioners respondents in these appeals we have heard Sarva Sri R.N. Singh Senior Advocate and Sri Ashok Khare, Senior Advocate assisted by Sri A.K.Rai. A large number of submissions were made by Sri P.P.Rao. I shall begin with the attack made against the finding of the learned Single Judge that on account of the inclusion of Shailja Kant Mishra as Chairman of the committee and of Javed Akhtar as a member, the constitution of the Misra Committee was invalid as these officers were biased. To appreciate the submission it is necessary to notice the role of Sailja Kant Misra and Javed Akhtar in the recruitment process; for the learned Single Judge has found their inclusion in the committee vitiated on the ground that they were involved in the recruitment process and would have had prior knowledge of facts they were required to enquire into and in such circumstances their prior deposition towards certain views could not be ruled out leading to an inference of official bias. They were also found disqualified by the learned single judge as there were instructions issued by the DGP himself not to include even for the assistance of the committee any officer who was involved in the recruitment process in the past three years whereas Sailja Kant Misra was the I.G. Eastern Zone PAC and Javed Akhtar was the Chairman of the II Recruitment Board, Sitapur in the year 2006 and were both connected with the recruitment process. A circular dated 2.7.06 of the PAC Head quarters has been annexed with the paper book of the special appeal in Pawan Kumar Singh's case as Annexure 11 to the stay application. THIS circular confers a duty upon the IG PAC Eastern Zone to scrutinize all the PAC recruitments after the declaration of the results and to report to the ADGP, PAC by 16.9.06. Under this circular it was the duty of the IG to scrutinize the marks obtained by the candidates in different items of the examination i.e. Physical ability, written examination and interview etc. and to check whether other formalities required to be performed under the instructions given such as preparation of a broad sheet had been complied with. By the letter dated 1.9.06 of R.N. Yadav, DIG, Chairman PAC Recruitment Board, Ballia the records in respect of Ballia PAC selection were sent to Shailja Kant Misra, IG PAC, Eastern Zone, U.P. Lucknow for scrutiny in view of the directions in the circular letter dated 2.7.2006. By a subsequent letter dated 18.9.06 Sri R.N. Yadav wrote to the IG, PAC, Eastern Zone U.P.Lucknow requesting for return of the records, which were required for the preparation of the main register. According to the writ petitioners who are the respondents in these appeals the records of the selections remained with Sri Sailja Kant Misra and were scrutinized by him between the period 1.9.2006 and 18.9.2006. A letter dated 3.11.2007 of Sulkhan Singh, which was sent to the DIG (Lok Shiyakat) has been filed along with the counter affidavit in Writ Petition No. 48717 of 2007. The letter states that the records relating to PAC Ballia Recruitment were sent to Sailja Kant Misra but were recalled on 19.9.2006. In para 33 of the affidavit of D.K. Gupta filed in support of the stay application in the Special Appeal No. 244 of 2009 against Pawan Kumar Singh it is stated that Shailja Kant Misra was never a member of any of the selection committees but he was required to send under the instructions dated 2.7.06 issued by the PAC Head quarters his report on certain points in respect of the selection. From this material it appears that while Shailja Kant Misra may have been under duty to scrutinise the recruitment records after the declaration of the results and that the records in respect of Ballia PAC recruitment were in his custody from 4.9.06 to 18.9.06 but it has not been proved that he had actually scrutinized the records at least of other recruitment centres. It was submitted by counsel for the respondents that even if the averment that Sailja Kant Misra did not scrutinise the records is accepted he was still disqualified to be included in the committee constituted to examine the complaints about corruption and other irregularities in the selection for if he did not scrutinise the records he had evidently failed in his duties under the circular and his own conduct would have been a subject matter of the enquiry and as a member Chairman of the committee his position was that of a Judge of his own cause. Reliance has been placed upon AIR 1993 SC 2155, R. L. Sharma Vs. Managing Committee Dr. Hari Ram Higher Secondary School and Others. Mr. P.P. Rao however submitted that the true test to determine bias is to examine whether there is any conflict between the interest of the enquiry officer in the subject of enquiry and his duty and that if there be no such conflict no inference of bias can be drawn. In support of his contention Sri P.P. Rao placed reliance upon Sarju Prasad Singh Vs, South Bihar Regional Transport Authority Patna and Others [AIR 1957 Patna, 73]; J.Y. Kondala Rao Vs. APSRTC [AIR 1961 SC 82]; T. Govindaraja Mudaliar Vs. State of Tamil Nadu [AIR 1973 SC 974]; Dr.G. Sharma Vs. Lucknow University [(1976) 3 SCC 585,591] ( para 14); Sunil Kumar Banerji Vs. State of W.B. [(1980) 3 SCC, 304] ( para 5); State of M.P. Vs. Ganekar Motghare [(1989) Supp. 2 SCC 703[; M/s Lakshmi Motor Service Vs. RTA Goa, [AIR 1985, Bom. 436]; Secretary to Government Transport Deptt Madras Vs. Munuswamy Mudaliar and another [(1988) Supp. SCC 651] ( paras 12,13) and State of U.P. Vs. R.K. Bhargava [(1992) Supp.2 SCC 92[ (para 2). In these cases it has been held that there must be real likelihood of bias. Sri P.P. Rao also tried to distinguish the decision of A.K. Kraipak Vs. Union of India, [AIR 1970 SC 150], which has been relied upon by the learned Single Judge. In Kraipak's case one of the members of the selection Board was also a candidate in the selection and although he had abstained when his own selection was under consideration but had participated in the selection of the other candidates and therefore there was a conflict between his interest and duty. We find that in the case of Shailja Kant Misra there is no direct conflict between interest and duty. The duty of Sailja Kant Misra in the recruitment was to scrutinise the records after the declaration of the result and it is the duty of the same nature which he was required to perform as a Chairman of the four member committee. Moreover the selection of PAC Ballia, the records of which were sent for scrutiny to Sri Shailja Kant Misra have been found to be tainted. Bias if any would have operated in favour of upholding the PAC Ballia selections whereas these selections have been found by the Misra Committee to be tainted. But as IG PAC Eastern Zone Shailja Kant Misra was obliged under the circular to scrutinize the result of Ballia PAC and other Recruitment Centres in the zone also. In the case of Javed Akhtar there would have been a conflict between interest and duty were he as a member of the Misra Committee required to enquire into the Sitapur selections. He was the Chairman of the Sitapur II Recruitment Board and as a member of the Misra Committee his interest would have been to uphold the selections made. But the undisputed position on facts is that Javed Akhtar under instructions from the DGP was dissociated from making enquiry into the Sitapur selections. The conflict of duty and interest situation however is not the only situation in which bias can be inferred. From the plethora of judicial decisions cited two principles emerge (1) that official bias can be inferred where there is a conflict between duty and interest and (ii) where a person has a firm commitment to certain beliefs on account of his prior knowledge of facts he is required to enquire into. Linked to this proposition is the principle that justice should not only be done but must also appear to have been done. In R.v. Bow Street Metropolitan Stipendiary Magistrate, exp Pinochet Ugrate [(1999) 1 All ER 577] the principle has been thus stated "However, I am of opinion that there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as shareholding (which might be small) in a public company involved in the litigation." The law upon this aspect has been dealt with in Ashok Kumar Yadav Vs. State of Haryana [1985 (4) SCC 417]. It has been held there that justice should not only be done but must also appear to have been done is a principle not applicable to the judicial process alone. It has application even to administrative bodies. The relevant passage in Ashok Yadav Vs, State of Haryana has been extracted and quoted in the decision of the apex court in Indra Preet Singh Kahlon Vs State of Punjab [2006 (11) SCC 356]. We are extracting the said passage which is quoted below: "The basic principle underlying this rule is that justice must not only be done but must also appear to be done and this rule has received wide recognition in several decisions of this Court. It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone; it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a welfare State where the jurisdiction of administrative bodies is increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner." The aspect of official bias arising in a case where the enquiry officer has prior knowledge of certain facts may now be considered. An integral part of the issue is the effect of certain instructions issued by the DGP not to associate even for the purpose of assistance to the enquiry committee such officers who were involved even remotely in the recruitment process. We have seen that Shailja Kant Misra as IG PAC Eastern Zone was required under instructions to scrutinize the selection papers after the declaration of result. Some records were also sent to him. Whether Shailja Kant Misra had in fact scrutinized the records is not quite clear. But being involved in the recruitment process an inference can be drawn that he would have had knowledge of facts relating to the selection. The counsel for the respondents drew our attention to the letter dated 31.7.07 issued by the DGP by which he had nominated certain persons to assist the Misra Committee in the enquiry. THIS letter contains a clear prohibition against inclusion of officials even to assist the Misra committee if such official has in the past three years been in any capacity associated with the recruitment process. The learned Single Judge has taken the view that the DGP was oblivious of the fact that Saialja Kant Misra and Javed Akhtar were involved in the recruitment process and they could not have been included in the committee. It is clear from the directions contained in the letter dated 31.7.07 that the DGP had laid down the standards to be adopted in associating persons in the enquiry committee and in excluding officials involved in the recruitment process in the past three years. The purpose for such prohibition obviously was that the enquiry be conducted by unbiased minds so that public confidence and more particularly that of the persons whose conduct was to be enquired into or who would be affected as a result of the enquiry is not shaken. If the standard laid down in the circular dated 31.7.07 had been observed and none of the persons who had been involved in the recruitment process were included in the committee the test of fairness and that laid down in Ashok Yadav and the Pinochet's case would have been cleared. Administrative action involving civil consequences has to pass the test of fairness. It is in this context that it has been said that an executive agency which lays down certain standards which it professes to follow is bound by those standards. THIS proposition of law has been succinctly stated by Justice Frankfurter in Vitarelli Vs. Seaton 359 45 535 as follows; "An executive agency must be rigorously held to the standards by which it professes its action to be judged......Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed...... THIS judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword." These words have been quoted with approval by the apex court in B. S. Minhas Vs. Indian Statistical Institute and others, [(1983) 4 SCC 582]. The principle has the backing of high authority and its infraction would be an act of arbitrariness constituting a breach of Article 14 of the Constitution of India. In my view the inclusion and continuance of S.K. Misra and Javed Akhtar in the four member committee was vitiated by the fact that it does not conform to the standards laid down in the letter dated 31.7.07. Although the letter dated 31.7.07 was issued after the Constitution of the four member Misra committee but it is clear that the standard for eligibility for association in the enquiry were set out by the DGP in that letter and when an officer even associated with the recruitment process in any capacity was disqualified even for rendering assistance to the Committee there appears to be no justification for the inclusion of Shailja Kant Misra and Javed Akhtar or for their continuance as Chairman/member of the Committee when they had been involved in the recruitment process and as Chairman/member of the enquiry committee were expected to discharge higher responsibilities than an officer appointed merely to assist the Committee. We now come to the question of addition of some members in the Misra committee who had also signed the reports upon which the impugned action was taken by the State government. The learned Single Judge has found that out of 51 reports only reports 1 and 2 have been signed by all the Members of the Misra Committee. The other reports were signed by Shailja Kant Misra along with one or more of the members of the committee or along with some of the officials nominated to assist the Misra Committee. A supplementary counter affidavit was filed on 5.2.2008 on behalf of the State to which reference has been made in the order of the learned single judge that in view of the enormity of the exercise entrusted to the Misra committee orders were passed enlarging the membership of the committee. The learned Single Judge found that those orders did not direct enlargement of the committee but only made available services of certain additional officers to give assistance to the committee and that these officers were never made members of the Misra Committee. By the order dated 14.6.07 the DGP nominated Sulkhan Singh to assist the Misra Committee. The learned Single Judge found that Shailja Kant Misra by order dated 14.7.07 had fragmented the Misra Committee into different sub committees and had selected one of the members of the Misra Committee to head the sub committee and it was the sub committee headed by an officer merely of DIG rank which conducted the enquiry which was entrusted by the DGP to the high level four member committee headed by Shailja Kant Mishra an officer of ADGP rank. Sri p.P. Rao submitted that the mere fact that certain officers had signed the reports in addition to the Chairman or other members would not invalidate the reports. The finding of the single judge however is that the sub committees did not merely collect evidence. They conducted the enquiry itself and it was their report which was forwarded to the DGP. The finding that the Misra Committee was fragmented into sub committees and the sub committees conducted the enquiries is supported by material and there is nothing to demonstrate that the finding is erroneous. We shall now see how Sri P.P. Rao has challenged the finding on grounds of law. He submitted that the power of addition of a member in an administrative committee as the Misra Committee was, is an incidental power which every administrative committee is possessed of and the Misra Committee could legitimately include additional members. It is not in dispute that the Misra committee was constituted by an administrative order. The powers conferred upon the committee it is submitted included all implied ancillary and incidental powers. In support of his contention reliance has been placed by the learned counsel upon the decision of the apex court in M.S.Gill Vs. Chief Election Commissioner [1978 1 SCC 405 ( para 89)]. The learned Judges quoted Black's Law Dictionary to describe the nature of implied powers. In the context of certain statutory provisions conferring wide powers upon the election court it was held by the apex court that the election court has incidental power to order repoll of a particular polling station and report the result to the court although that power was not specifically conferred. In the present case the incidental power being relied upon is of a different nature. It is the power of the enlargement of the committee itself which is being claimed and not the power of the committee to carry out certain ancillary functions. The reason for spelling out an incidental power in a statutory provision is that the Legislature frequently does not legislate in respect of minor details; for doing so would be impracticable and would require a continuous exercise of the tedious legislative process. THIS is the reason for the rule given in Sutherland - a reason which is not applicable in respect of administrative conferment of power where the grantor is available to confer additional powers. Paras 89 and 90 in which Black's Law Dictionary and Sutherland have been quoted in Mohinder Singh Gill's case are extracted below; "89. Black's Law Dictionary explains the proposition thus: Implied powers are such as are necessary to make available and carry into effect those powers which are expressly granted or conferred, and which must therefore be presumed to have been within the intention of the constitutional or legislative grant. "90. THIS understanding accords with justice and reason and has the support of Sutherland. The learned Addl. Solicitor General also cited the cases in Matajog Dobey v. H.C. Bhari and Commissioner of Commercial Taxes v. R.S. Jhaver to substantiate his thesis that the doctrine of implied powers clothes the Commissioner with vast incidental powers. He illustrated his point by quoting from Sutherland (Frank E. Horack Jr., Vo. 3): 0 Necessary implications. - Where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication. Thus it has been stated, "An express statutory grant of power or the imposition of a definite duty carries with it by implication, in the absence of a limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty..........That which is clearly implied is as much a part of a law as that which is expressed". The reason behind the rule is to be found in the fact that legislation is enacted to establish broad or general standards. Matters of minor detail are frequently omitted from legislative enactments, and 'if these could not be supplied by implication the drafting of legislation would be an interminable process and the true intent of the Legislature likely to be defeated." The rule whereby a statute, is by necessary implication extended has been most frequently applied in the construction of laws delegating powers to public officers and administrative agencies. The powers thus granted involve a multitude of functions that are discoverable only through practical experience." In Union of India Vs. Paras Laminates ( P) Ltd. [(1990) 4 SCC 453] It was held that there was an incidental power in the President of the Tribunal to refer the matter to a larger Bench in case of disagreement of a bench of the Tribunal with a previous decision. Such an incidental power was culled out although the statutory provision relating to the power of the President of the Tribunal was confined to referring matters in the case of disagreement between the members of the Bench and not to a disagreement with a previous decision. It was clarified however that implied powers are subject to express grant. It was submitted by Sri Khare that incidental power relates to the exercise of statutory power and in the State of U.P. this power has been expressly conferred by section 19-A of the U.P. General Clauses Act. Reliance was placed by the learned counsel upon the decision in Meerut Collegiate Association, Meerut and others Vs. Sri Arvind Nath Seth and others, [1982 U.P.L.B.E.C.[ page 82, paragraphs 6 and 10. It was held in this case that incidental power can be spelled out from the provisions of the statute if the exercise of such power is absolutely necessary. In that case the question was whether the power under Section 25 of the Societies Registration Act includes the power of granting an interim order of stay. Repelling the contention it was held by a Division Bench of this Court that such incidental power can be read into the statute only if it is absolutely necessary to cull out the existence of such a power. In this regard reliance has also been placed by Sri Khare upon a decision of the Apex Court in Kharagram Panchayat Samiti and another Vs. State of West Bengal and others, (1987) 3 SCC 82 in which the learned Judges of the Apex Court referred to and quoted a passage from the celebrated Judicial Review by De. Smith. That passage is being extracted and being quoted below:- 1 "The House of Lords has laid down the principle that "whatever may fairly be regarded as incidental to, or consequent upon, those things which the legislature has authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires." The passage in Sutherland and the cases cited by Sri Rao relate to the existence of incidental powers in a statutory or constitutional conferment of powers. In the cases before us however the conferment of power was made by an administrative order. Sri R. N. Singh, learned counsel for the respondents submitted that what has to be seen in the case of an administrative conferment of power is the intention of the granter of the power. He relied upon S. Parthasarthi Vs. State of Andhra Pradesh [(1974) 3 SCC 459]. In that case the statute provided that an enquiry officer could be appointed by the head of the office, the appointing authority or any higher authority. The Director who happened to be the head of the office was appointed as an enquiry officer by the State government. At that time there was an In-charge Director who started the enquiry. Later on it appears that when the Director joined, the In-charge Director was reverted to his post of Deputy Director. The Director as head of the office then passed an order authorizing the Deputy Director who was earlier the in charge Director to continue with the enquiry. The Deputy Director continued with the enquiry. Subsequently, the State government also passed an order that the In-charge Director could continue with the enquiry but in the meantime the Deputy Director had already submitted his report. It was held that the intention of government in this case was to have the enquiry done by the Director himself and the Deputy Director could continue to hold the enquiry only so long as he continued to be the In charge Director and it was not the intention of the government to allow him to continue as enquiry officer after he had ceased to be the In-charge Director. The subsequent conferment of power of enquiry officer by the State government upon the Deputy Director was held to be of no avail as the enquiry had already been completed by the Deputy Director and there could have been no retrospective conferment of power. From the cases cited by the parties it appears that incidental or implied powers can be spelled out in a conferment of powers only when the exercise of such an incidental power is necessary to give effect to the express grant; that implied powers are subject to express grant; and that the intention of the legislature in the case of a statutory conferment and that of the grantor in the case of an administrative conferment has to be given effect to and in case the scheme of the statute or the language of the order of the grant suggests otherwise no incidental power can be culled out. In the present case the intention of the Director General of Police in defining the role of the officers in the enquiry was clear. The enquiry 2 was to be conducted by the Misra Committee. Other officers had been permitted only to assist the committee and not to function as members of the Committee. Moreover, there is no decision of the Misra Committee itself brought to our notice enlarging the strength of the Committee. The Chairman of the Committee by himself could not have enlarged the Committee. In view of the legal position discussed above it appears that if the task of the Misra Committee was big the Committee could on the ground of necessity take assistance of persons in the discharge of its functions but the Committee could not have co-opted members or enlarged its strength by reference to any incidental power vested in the committee. The single judge is right in holding that the matter could have been different had the report of the sub committees been considered and approved after application of mind by a separate report of the Misra Committee. Sri P.P. Rao then submitted that an administrative committee can sub delegate its powers and that the maxim Delegatus Non potest Delegare relied upon by the learned single judge to invalidate inclusion of additional members is a maxim, which is applicable to the judicial process and is not applicable to administrative action. In support of his contention he placed reliance upon Pradyat Kumar Bose Vs. The Hon'ble Chief Justice of Calcutta High Court,[ A.I.R. 1956 SC 285]. In that case it was held that the enquiry judge appointed by the Chief Justice could hold the enquiry and the order of punishment passed by the Chief Justice on the foundation of such report was not an invalid order. It was observed that where a statutory functionary exercises such a power it cannot be said that he has delegated the functions merely by appointing an official to collect the material. The other case relied upon by Sri P.P. Rao is AIR 1994 SC 346 Sahni Silk Mills Vs. ESI Corporation [(1994) 5 SCC 346]. In that case the statutory provision, which was involved for consideration authorized the Corporation to delegate power to a subordinate officer. The resolution empowered the Director General or any other officer authorized by him. It was held that while it is essential that a delegated power is to be exercised by the authority upon whom that power is conferred and by none-else but judicial aversion against such delegation cannot be carried to the extreme; for a public functionary is at liberty to employ agents to exercise its power. The learned judges observed that the maxim is not being followed strictly where there is a discretionary administrative power. Sri P.P. Rao also placed reliance upon Thakker's Administrative Law in which the proposition of law stated is that administrative functions may be delegated and sub-delegated unless there is a specific bar or prohibition in the statute. A Constitution Bench of the Apex Court in Barium Chemicals Ltd Vs. Company Law Board [AIR 1967 SC 295] had occasion to consider exhaustively the question of validity of sub delegation in the context of Section 237 (b) of the Companies Act which authorized the Central Government to appoint inspectors to investigate the affairs of a company. The Central Government in exercise of powers under Section 637 and 10-E of the Companies Act delegated the power to the Company Law Board. The Chairman of the Company Law Board passed an order for inspection under Section 237 of the Act. The order was challenged on the ground that the power had been delegated to the Board and the Board consisting of all its members alone could pass the order and not the Chairman individually and that the power of the 3 Board could not be sub delegated. The defence to the challenge was that Rule 3 of the Rules framed by the Central Government empowered the Chairman to distribute the business of the Board amongst himself and other members and to specify the cases or class of cases which shall be considered jointly by the Board and that in exercise of this power the Chairman had allocated to himself the power under Section 237 to direct investigation of the affairs of the Company. The power conferred by Section 237 (b) was described as being an administrative one. It was held by a majority (Hidayatulla, Bachawat and Shelat JJ) that the sub delegation was invalid. Bachwat J observed as follows:- "34-A. As a general rule, whatever a person has power to do himself, he may do by means of an agent. THIS broad rule is limited by the operation of the principle that a delegated authority cannot be re- delegated, delegatus non potest delegare. The naming of a delegate to do an act involving a discretion indicates that the delegate was selected because of his peculiar skill and the confidence reposed in him, and there is a presumption that he is required to do the act himself and cannot re-delegate his authority. As a general rule, "if the statute directs that certain acts shall be done in a specified manner or by certain persons, their performance in any other manner than that specified or by any other person than one of those named is impliedly prohibited." See Crawford on Statutory Construction, 1940 Edn., Art. 195, p. 335. Normally, a discretion entrusted by Parliament to an administrative organ must be exercised by that organ itself. If a statute entrusts an administrative function involving the exercise of a discretion to a Board consisting of two or more persons it is to be presumed that each member of the Board should exercise his individual judgment on the matter and all the members of the Board should act together and arrive at a joint decision. Prima facie, the Board must act as a whole and cannot delegate its function to one of its members. 35. The learned Attorney-General submitted that a distribution of business among the members of the Company Law Board is not a delegation of its authority, and the maxim has no application in such a case. I cannot accept this submission. In Cook v. Ward, (1877) 2 CPD 255, the Court held that where a drainage board constituted by an Act of Parliament was authorised by it to delegate its powers to a committee, the powers so delegated to the committee must be exercised by them acting in concert and it was not competent to them to apportion those powers amongst themselves and one of them acting alone, pursuant to such apportionment, could not justify his acts under the statute. Lord Coleridge, C. J. said at p. 262: "It was not competent to them to delegate powers, which required the united action of the three, to be exercised according to the unaided judgment of one of them."" 4 The situation in the present case is quite similar to that in Barium Chemicals (Supra) except that an administrative power was there being exercised under a statutory provision unlike the present case where the power was being exercised under an administrative order. The question was again considered in Marathwada University case (Supra) in the following manner:- "... ... It is a settled principle that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation. Halsbury's Laws of England (Vol. I, 4th Ed., para 32) summarises these principles as follows : "32. Sub-delegation of powers. In accordance with the maxim delegatus non potest delegate, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub- delegation of the power is authorised by express words or necessary implication. There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub-delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind." The enquiry in the present cases resulted in civil consequences to the writ petitioners. It was also an enquiry which would have required the committee to apply mind. In view of the proposition of law stated in the passages above quoted there would be no presumption of authorization of delegation. In this case the Director General of Police had entrusted the task of the enquiry to the four member committee and the other members were appointed only to assist the committee. Nothing has been brought on record to show that there was any delegation of power by the Director General of Police. There is also no material on the record to indicate that the Misra Committee had as a body inducted the officers appointed to assist it as members of the committee. The Chairman of the Committee on his own could not have inducted other persons into the committee when the Director General of Police had permitted them merely to assist the Misra Committee. In the circumstances the cases cited by Sri P.P. Rao are distinguishable and I am of the view that the sub delegation was invalid. To justify the enlargement of the Misra Committee and to save the reports from the invalidity found by the single judge that these reports were really not the reports of the Misra Committee but of certain sub committees, Sri P.P. Rao also invoked the doctrine of Ratification. He submitted that the Director General of Police had accepted the reports of the enquiry committee and therefore had ratified the inclusion of the additional members also. The law upon the subject of Ratification was exhaustively 5 considered by the apex court in Marathwada University v. Seshrao Balwant Rao Chavan [AIR 1989 SC 1582]. The following extracts from the said decision may be usefully quoted; "... ... ... Ratification is generally an act of principal with regard to a contract or an act done by his agent, In Friedman's Law of Agency (Fifth Edition) Chapter 5 at p. 73, the principle of ratification has been explained : "What the 'agent' does on behalf of the 'principal' is done at a time when the relation of principal and agent does not exist : ... ... ..." ... ... ... 26. These principles of ratification, apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot be ratified." Reliance was placed by Sri P.P. Rao upon Jugraj Singh and another Vs. Jaswant Singh and others, [1970 (2) SCC 386] in which a sale made under an unauthenticated power of attorney was held to be valid by ratification under a subsequent power of attorney. It was also held therein that the ratification would relate back to the date of the original grant. That was a case of ratification of the act of an agent by the principal. In Punjab University Vs. V.N. Tripathi [2001 (8) SCC 179] it was held that the Registrar who was empowered under a statutory provision to represent the University in all legal proceedings was not competent under that power to initiate proceedings on his own but his act of filing an appeal could be ratified by the Senate. The Marathwada University case was referred to and was distinguished on facts but not dissented from. In High Court of Judicature for Rajsthan Vs. P.P. Singh and another, [(2003) 4 SCC 239] cited by Mr. Rao it was held by the Rajasthan High Court that the preparation of the merit criteria by a committee appointed by the Chief Justice, which was subsequently approved by the Full Court was valid. The challenge to the constitution of the Committee was repelled on merits. Alternatively it was held that even if the initial action was illegal it could be ratified by a body competent. The learned Judges relied upon Parmeshwar Prasad Gupta Vs. Union of India [1973 (2) SCC 543] where an action of termination of the services of an employee of a company by the Chairman of the Board of Directors on the basis of an invalid resolution of the Board of Directors was up held on the basis of ratification by a resolution in a properly convened meeting of the Board. Parmeshwar Gupta's case was considered in Marathwada University case and it was said in para 28 that principles governing 6 ratification of transactions of a company cannot be extended to other cases because the general body of a company is a repository of all powers. Sri Ashok Khare, learned senior counsel for the respondents on the other hand relied upon two decisions of the apex court. In Tej Pal Singh Vs. State of U.P. and another, [AIR 1986 SC 1814] the State Government submitted a proposal for premature retirement of an official and sought opinion of the High Court. Under the rules important matters on which government could seek opinion of the High Court were required to be placed before the Administrative Committee. The Administrative Judge, however, before whom the papers were placed agreed with the proposal. Acting upon the opinion of the Administrative Judge the State government passed an order of premature retirement. Subsequently the Administrative Committee of the High Court also approved the opinion given by the Administrative Judge. It was held that the subsequent approval granted by the Administrative Committee did not validate the opinion given by the Administrative Judge as the illegality was incurable and no ex post facto sanction could be granted. THIS decision is in line with the Marathwada University case. Again in S. Parthasarthi (supra) it was held that subsequent authorization to the Deputy Director to continue as the enquiry officer when the enquiry was already over could not validate the enquiry. In V.N. Tripathi and P.P. Singh actions in excess of statutory authority were sustained by ratification and some problem has therefore arisen in reconciling these cases with the Maradhwada case. But the present is a case of administrative conferment of power and the case of S. Parthasarthy cited by the counsel for the respondents appears to be nearer the facts of the present case and in my opinion the DGP could not have validated the reports by ratification. Moreover, ratification has also not been proved on facts. In the present case ratification is being inferred from the acceptance of the enquiry report. It however appears as found by the learned single judge that only one report namely Report No. 44 was specifically approved by a one sentence order of acceptance passed by the Director General of Police (D.G.P). In respect of other reports there is no specific order even of acceptance passed by the D.G.P. The Single Judge has recorded a finding that the D.G.P. had forwarded the reports to the State Government without application of mind. No ratification by the D.G.P. who had constituted the Misra Committee can however be inferred from the mere fact that the reports were forwarded to the State Government by the D.G.P. The submission regarding ratification therefore fails. Sri P.P. Rao then submitted that the inclusion of additional members and the reports submitted were valid on the strength of the doctrine of de facto. The report of the Committee having been approved by the Director General of Police, so it is contended, cannot be invalidated on the ground that the reports were not of the Misra Committee but of persons appointed to assist the Misra Committee. In support of his contention reliance has been placed by the learned counsel upon the decision of Gokaraju Rangaraju (1981) 3 SCC 132. It was held therein that a judge defacto is not a mere usurper but one who holds office under colour of lawful authority even though his appointment is defective and may later be found to be so. The doctrine is now firmly established and protects acts of officers de facto performed in the interest of the public or of third persons as valid and binding as those of officers de jure. The principles 7 laid down by the Privy Council in the case of Pulin Behari Vs. King Emperor 16 Indian Cases 257 were applied in the case. In Gokaraju's case collateral challenge to the appointment was held to be impermissible. On the other hand reliance has been placed by Sri Ashok Khare upon a decision of the apex court in Central Bank of India Vs. C. Bernard, [(1991) 1 SCC 319] wherein it was held that the doctrine of de facto is applicable to the holder of a public office performing functions in the public interest. It is urged and in my opinion rightly so that an enquiry committee of the nature of the Misra Committee appointed under a non statutory administrative order to report about irregularities in a recruitment drive does not hold public office. Moreover, the Director General of Police had appointed the additional officers only to assist the committee. They had never been appointed as members of the Misra Committee. The question of protecting their acts under the colour of lawful authority therefore does not arise in their case for it did not lie within the scope of the duties entrusted to them to prepare and submit the report. The inclusion in the report of additional members was invalid and cannot be saved by the de facto doctrine. A Division Bench of the High Court of Judicature at Lucknow in Brij Bhushan Bakshi and others Vs. State of U.P. [2009 (i) ADJ 362] has held the constitution of the Misra Committee as invalid on the ground amongst others that inclusion of Shailja Kant Mishra and Javed Akhtar who were involved in the recruitment process was invalid. It however appears that a Special Leave to Appeal Petition has been filed against the order before the Apex Court. Sri R.N. Singh, who appeared for the respondents relied upon a decision in Kunhayammed and others Vs. State of Kerala and another, [AIR 2000 SC 2587] wherein it has been held that the mere filing of an SLP would not render the judgment of the High Court under jeopardy. In that case the effect of the orders passed at various stages of the SLP was considered by the Apex Court and principles to test when the judgment of an inferior court has been put under jeopardy as to make applicable the principle of res judicata have been laid down. It was held in that case that mere issuance of notice would not put the judgment challenged under jeopardy and it is only when leave is granted that the judgment challenged ceases to be final. The terms in which the notice on the SLP has been issued in this case are clear from the the order passed by the Apex Court, a copy whereof has been produced by Sri R. N. Singh at the Bar. It reads:- "Learned counsel for respondents 1, 4 and 5 appear and accept notice. Dasti service, in addition, is permitted. Counter affidavits on be half of respondents shall be filled within a period of four weeks. Rejoinder affidavit, if necessary, may be filed within two weeks thereafter. 8 We have been informed that certain matters pertaining to the recruitment of the constables are pending at various Courts. We clarify that all the pending matters shall be dealt with in accordance with law on their own merits uninfluenced by the issue of notice in the present petition." In my opinion the decision of the Division Bench in Brij Bhushan's case being that of a Bench of coordinate jurisdiction is binding and at least of much relevance in this case. Sri P.P. Rao, counsel for the appellant then took us through the report of the Misra Committee in respect of the selections made by the Recruitment Centre, Allahabad which the learned Single Judge has made the lead case. Sri Rao placed before us also the conclusions drawn by the committee that on account of large scale irregularities in the recruitment process which the committee found, it could be smoothly inferred that corruption prevailed in the selection. The finding about corruption is not based upon any direct evidence, which may have been referred to by the Committee but is an inference drawn by the committee from the irregularities found by it. It appears that it was in view of this nature of its finding that the committee has recommended that the allegations of corruption be investigated into in a regular enquiry by the CBI. We may now refer to the irregularities in the selection which have been pointed out by Sri P.P. Rao as having been found by the Mishra Committee on the basis of which the committee has drawn its conclusion that corruption had prevailed in the selection. Sri Rao drew our attention to the departmental instructions that in case of overwriting, the countersignature of the Chairman of the Selection Board were required. THIS instruction, it is submitted was not followed. Reference has been made to the names of seven candidates in respect of whom it was found there were cuttings and overwriting and change of marks. The committee found that answer sheets of 29 candidates contain identity marks and according to the instructions these answer books were required to be examined by the Chairman but that was not done. The Misra Committee has also found that 16 candidates who did their graduation were awarded only four marks out of 20 in the interview whereas under the instructions issued a candidate who had a graduation degree was entitled to five marks in the interview for the educational qualifications alone and thus the award of 4 marks in the interview was a proof of serious irregularity by the Selection Board. The submission of the counsel for the respondent is that these instructions regarding minimum marks for educational qualifications were done away with by a subsequent circular dated 13.3.2005 which gave full discretion to the interview board to award whatever marks they found the candidates deserved. A copy of the circular has been filed with the Fifth Supplementary affidavit in the Special Appeal of Pawan Kumar Singh. It is difficult to believe that this circular dated 13.3.2005 was not available with the Misra Committee. The Misra Committee did not refer to this circular for the reasons best known to it but the attempt to show an irregularity in the selections where none existed by referring to a circular which had been superseded, casts doubt about the fairness of the Misra Committee itself. The Misra Committee has also found that in breach of the instructions each page of the answer sheets was not signed by the selection committee. Breach of the instructions requiring the mark sheet to be signed by the examiners and put in sealed cover has also been noticed by the Committee. It has also been found by the Misra Committee that a broad sheet was 9 not prepared. A broad sheet it has been explained to us at the Bar is a paper which contains the performance of each candidate in respect of the physical test, written test, interview and also the result. Learned Standing counsel in fact has produced before us a spirally bound computer printed sheet prepared by the Selection Board and it is conceded by the standing counsel that in the computer printed sheet marks for the physical test, written test and interview have been shown but not the total. It was however not disputed that from the marks available in the main register or in the spirally bound computer sheet itself, a broad sheet can be constructed. That could also be done on the basis of the mark sheets of the physical and written tests and interview. Another irregularity pointed out by the counsel for the appellant is that in the model answer of the mathematics questions only answers have been given to the questions without mentioning the formula and therefore full marks had to be awarded in the mathematics questions if the answers were found correct. In this regard statements made before the Misra Committee have been referred to in the report. The Misra Committee also found that answer books of 25 candidates which appeared to be in a handwriting different from that of the candidates were sent to the expert who found that 24 answer books were indeed in different hand writing. Another irregularity pointed out by the Misra Committee is that no date was put by the members of the selection committee under their signatures and that the main register was not signed. The committee however found that the main register contains the names of candidates, their qualifications, physical measurement, performance in physical test, written test and interview. The Misra Committee has adversely commented upon the pattern of marks awarded to the candidates in the physical test and the interview and has referred to it as some design on the part of the selection board to manipulate the marks. The dissimilarity pointed out in the pattern of marks is that candidates securing higher marks in physical test were awarded lower marks in interview and vice versa. It is difficult to appreciate how this dissimilarity could form the basis of any rational finding of irregularity in the selections. While a dissimilarity in the pattern of marks obtained in the written examination with those in the interview could have some relevance to arouse suspicion but surely the fact that the marks in the physical examination do not correspond with those in the interview appears to have hardly any relevance. The adverse inference drawn by the Misra Committee from the pattern of marks aforesaid is irrational. The learned Single Judge has also found that uniform norms were not followed by the Misra Committee to adjudge all the recruitments and different standards were applied for clearing or rejecting the selections made by the various Recruitment Boards. To demonstrate the glaring instances where the Misra Committee has discriminated in making recommendations whether the selection be cleared a comprehensive chart has been prepared by the learned Single Judge showing the percentage of discrepancies found in the various enquiry reports relating to the selection made by various recruitment centers. The percentage of the irregularities found in the Report No.23 pertaining to Deoria selection is 53.4%. The Deoria selection is at the top of the list in the matter of the percentage of irregularities found but the Misra Committee has recommended the clearance of the selections of this center. We are not quoting the entire chart prepared by the learned Single Judge in ex tenso but the correctness of the figures depicting percentage of irregularities arrived at by the learned Single Judge has not been 0 challenged by the appellant. No arguments were pressed by the counsel for the appellant upon the correctness of the figures. The figures are revealing. The percentage of irregularities in the following recruitment centres where the selections have been recommended to be cancelled are as follows; Report No. 3 Allahabad 18%, Report No. 4 Varanasi 27.6%, Report No. 5 Bareilly 17.5%, Report No. 7 Kannauj 24%, Report No. 9 Jhansi 35.4%, Report No. 12 Mainpuri 34.4%, Report No. 16 Etah 38.43%, Report No. 35 Bulandshahr 20.7% and Report No. 47 Budaun 19.4% etc. The fact that the Mishra Committee has recommended for the clearance of the selection in respect of Deoria where the percentage of irregularities were far in excess of the irregularities found by it in respect of other recruitment centers for which recommendation for cancellation of the selections has been made casts serious doubt upon the fairness of the Misra Committee and indeed it is difficult to justify the recommendations made by it. What is to be taken note of from these figures is that different standards have been adopted by the Misra Committee in rejecting or clearing the selections - a breach of the provisions of Article 14 of the Constitution of India. The facts and figures given in paras 108 to 116 of the judgment of the learned single clearly demonstrate the discriminatory standards applied by the Misra Committee. Irregularities such as cuttings and overwriting, change of handwriting, dissimilarity in the pattern of marks in physical test and interview considered serious flaws in the Allahabad selections have been conveniently ignored or explained away as human error in the selections cleared. I am in agreement with the single judge that the report of the Misra Committee does not appear to be fair. Sri Patwaliya who appeared for the appellant submitted that interviews were held in groups and not individually. The learned Single Judge has considered in the interview this aspect and has held that in the selections to the rank of constable after the physical and written test a mere glance at the candidate in the interview was sufficient to assess his worth. Reliance has been placed by the Single Judge upon the decision in Sadanand Halo Vs. Mumtaz Ali Sheikh [2008 (3) JT 74] where a similar contention that interviews of a large number of candidates within a short time was not possible was repelled by the Apex Court. Two serious infirmities have been found by the learned Single Judge in the procedure adopted by the Misra Committee and one of these infirmities even casts doubt upon the fairness of the enquiry made. Firstly that tainted and untainted selections could be separated and that in this case it was possible to do so in view of the nature of irregularities found by the Misra Committee and that it was not necessary to set aside the entire selections and second: that the same standards were not adopted by the committee while rejecting selection of some centres as were applied by it in clearing selection of other centres. In my opinion both these findings are justified. 1 The learned Single Judge found that the irregularities alleged by the State with regard to overwriting, award of more than prescribed marks etc., to certain selectees or group of them are peculiar and unique to those selectees or group of them and as such although the exercise for segregating them would have been an enormous one but such an exercise could have been performed. The learned Single Judge has noticed the fact that it was not the case of the State that relevant records were not available. It has also been found that the Misra Committee had summoned three fourth (3/4) of the records in respect of the selections made at the various recruitment centres and there appeared to be no such difficulty on account of which all the records could not have been scrutinized. The learned Single Judge has also referred in this regard to the directions given by the Chairman of the Misra Committee Sri Shaija Kant Misra in his order dated 14.7.2007 to its members and their associates. It would be useful now to refer to the cases cited by the counsel for the parties. Sri P.P. Rao, learned counsel for the appellant relied upon the following decisions of the Apex Court:- Union Territory of Chandigarh Vs. Dibagh Singh and others [1993 (1) SCC 154 paragraph 2], Krishan Yadav and another Vs. State of Haryana and others [1994 (4) SCC 165], Union of India through the Secretary, Ministry of Home Affairs and others Vs. Joseph P Cherian [2005 (8) SCC 180], Union of India and others Vs. O. Chakradhar [2002 (3) SCC 146], Biswas Ranjan Sahoo and others Vs. Sushanta Kumar Dinda and others [1996 (5) SCC 365] and Pramod Lahudas Meshram Vs. State of Maharashtra and others [1996 (10) SCC 749]. We will take up each of these cases in the order in which they have been cited. In Union Territory of Chandigarh Vs. Dibagh Singh and others, a select list of candidates was cancelled by the Chandigarh Administration and fresh selections were ordered. The Central Administrative Tribunal quashed the order on the ground that no opportunity was given to the members of the selection board. The Supreme Court set aside the order of the Central Administrative Tribunal and held that:- (a) the members of the selection board have no personal interest in the matter which may have been affected and as such no opportunity need have been given them; (b) the selected candidates have no indefeasible right to be appointed; (c) the selections were vitiated as they were made on the basis of marks for educational qualification plus interview marks but on investigation it was found that those who were having higher educational qualifications were awarded lesser marks in the interview and vice versa and uniform standards were not applied by the Selection Board. In view of such taint the Supreme Court held that the selections could be cancelled even though corruption charges were not proved. Sri P.P. Rao relied upon this decision in support of his contention that where the selections were vitiated by dishonesty the principle of audi alterem partem is not applicable. The decision was considered by the Apex Court in Inderpreet Singh Kahlon and others Vs. State of Punjab and others, (2006) 11 SCC 356. The distinguishing feature in Dilbagh Singh case (supra) is that the Supreme Court in that case had found that the selection board did not apply uniform standards. In such a case no segregation was possible on facts. Moreover in the present cases a large number of selected candidates approximately 6000 have been given appointments and their case stands on a better footing than those of mere selectees. In Krishan Yadav case (Supra), the selection for 96 posts of Taxation Inspectors was made. Some non 2 selected candidates challenged the selection. The High Court dismissed the writ petition on the ground that the records had been destroyed, so that it was not possible to record any finding regarding the infirmities alleged by the non selected candidates. In the circumstances of the case the Supreme Court directed that CBI investigations be made. The report revealed serious irregularities in the selections. The interview sheets of the Chairman and of some of the members were found to be blank. Some candidates were shown to be present before different Interview Boards showing that the interviews were fake. Relying upon the report of the CBI, it was found by the Supreme Court that the records relating to the examination were not available and that some records were fabricated. In the peculiar circumstances of that case the Supreme Court cancelled the selection and directed for fresh selection from among those who had applied in response to the earlier advertisement. THIS case was considered in Inderpreet Singh Kahlon case (Supra). The distinguishing feature of Krishan Yadav case (Supra) is that the appointments were made contrary to the rules and the selection as a whole was vitiated. In that case appointments had been made without medical test and character verification as was found in the CBI investigation. Records of the written examination had been destroyed so the question of segregating the tainted and non tainted selections did not arise. In Biswa Ranjan Sahoo case (Supra) selection to six posts of Chargemen was set aside by the Administrative Tribunal. The Supreme Court held that it was a case of malpractice in the selection and it was not necessary to give opportunity to the candidates. The distinguishing feature of that case is that the Tribunal itself had given a finding regarding the irregularities. The question of observance of principles of natural justice before the departmental authorities therefore did not arise. In Union of India Vs. Joseph P Cherian case (Supra), the Supreme Court upheld the cancellation of the departmental examination on account of mass scale malpractice in one of the centres and leakage of question papers and its transmission to other centers being not ruled out. In Union of India Vs. O. Chakradhar (Supra) selections for the post of Junior Clerk-cum-Typist were made. Under the instructions given for the selection, a separate typing test was to be held and the candidates who qualified in the typing test alone were eligible for interview. Instead of adopting this procedure the candidates were subjected to typing test in the course of interview. No separate marks for the typing test were awarded. The rule of eligibility for the interview was therefore breached which vitiated the entire selection. The Apex Court relying upon Krishan Yadav's case held that where irregularities are on such mass scale and it becomes difficult to separate the cases of those who have been illegally benefited the whole selection is to be quashed. One of the distinguishing features of that case is that it was not possible to apply the principles of segregation on facts. In Pramod Lahudas Meshram Vs. State of Maharashtra and others [1996 (10) SCC 749], the appointment of certain probationers was cancelled. The appointment was found to be vitiated on the admitted fact that no selection or interview was held. It was found that the order of cancellation was not vitiated on account of want opportunity. In addition to these cases which have been cited by Sri P.P. Rao, Sri Paramjeet Singh Patwaliya relied upon 1994 (5) SCC 696, Preeti Pal Singh Vs. State of Haryana and others in which the court on the petition of some non selected candidates set aside the selection pending certain irregularities. The distinguishing feature of the case is that that the selections were set aside by the court. The question of the departmental authorities applying the principle of natural justice did not arise. 3 The question of segregation of tainted and non tainted selections was considered by the Apex Court exhaustively in Inderpreet Singh Kahlon case (Supra). In that case appointments to PCS (Executive Branch) and PCS (J) were made between 1998 and 2001 on the recommendation of the Punjab Public Service Commission. A Vigilance Bureau report was called for. It submitted a report that large scale irregularities were made in the selection. As a result of the finding, the services of various officers PCS (Executive Branch) as well as of certain officers of PCS (Judicial Branch) were terminated. In the matter of Judicial Officers the decision was taken on the basis of a report submitted by a committee appointed by the High Court. The High Court dismissed the writ petition filed by the candidates whose appointments had been cancelled on the ground that there was a large scale manipulation and that most of the candidates who had paid money were awarded higher marks. It was also found those candidates who secured higher marks in the written test were given lower marks in the interview. The Apex Court relying on Secretary, State of Karnataka Vs. Uma Devi [2006 (4) SCALE 247] held that an appointment made in violation of provisions of Article 14 and 16 of the Constitution is void. Sri Patwaliya who appeared for the appellant drew our attention to the Supreme Court's holding in Kahlon's case regarding the satisfaction of the appointing authority about the existence of three foundational facts before arriving at the finding that the appointment is void and terminating the services of employees. They are: Firstly satisfaction in regard to the material collected to arrive at the conclusion that the selection process was tainted. Secondly determining by thorough investigation in a transparent and fair manner that illegalities committed go to the root of the matter which vitiate the selection process. Thirdly, whether the sufficient material collected enabled the State to arrive at the satisfaction that the officers in majority have been found to be part of the fraudulent purpose or the system itself was corrupt. We will now apply the test laid down by the Apex Court in Inderpreet Singh Kahlon case to examine the validity of the report of the Misra Committee and that of the impugned order of the State Government. It appears that none of the foundational facts has been established. No doubt the Misra Committee has observed that mass scale irregularities were found in the selection process from which the committee could smoothly conclude that corruption was practiced but the Misra committee has not referred to any specific evidence in proof of corruption. In the absence of any evidence indicated in the report, it is difficult to uphold in a judicial scrutiny the conclusion drawn by the committee that corruption prevailed. The learned Single Judge has given a chart indicating the percentage of irregularities found in the reports regarding different recruitment centres. That chart indicates that the percentage of irregularities found in many of the selection centres where the Committee recommended cancellation of the results is far less than those where the Committee recommended clearance of the selection. The Misra Committee has not adopted uniform standards in recommending clearance of selection or rejection. Some instances demonstrating lack of fairness of the Misra Committee have already been given above. The single judge has also found that the working of the Misra Committee was not fair. The existence of one of the foundational facts that the investigation into the irregularities alleged was transparent and fair has also not been established. The conclusion drawn in the report on the basis of 4 the magnitude of the irregularities that corruption prevailed can hardly be sustained. There is no reference in the report to any evidence that any selected candidate had obtained selection by bribe. Learned Single Judge has held that suspicion cannot replace proof. While the alleged large scale irregularities could be the basis for suspicion that corruption had prevailed but such suspicion cannot be treated as proof. The third foundational fact referred to in Kehlon's case regarding prevalence of corruption has not been established. As regards the foundational fact regarding sufficiency of the material collected for arriving at the conclusion whether the entire selection process was tainted it is necessary to examine another aspect of the matter which is as to whether the entire selection was required to be set aside or whether the tainted and the non-tainted selections could be separated. The report of the Misra Committee is based upon what it has described as large scale irregularities found by it in the selections. I have already referred to the nature of the irregularities found by the Misra Committee in an earlier portion of the order. The said irregularities have also been considered by the learned Single Judge. It appears that irregularities found were of a nature individual to the particular candidates or to a group of candidates. For example, the cases of overwriting and cutting resulting in change of marks in respect of some candidates, use of different handwriting in answer books etc., are irregularities which pertain to particular candidates whose cases could be separated from the rest of the cases where irregularities were not noticed by the Misra Committee. In Kahlon's case Dalvir Bhandari, J. in support of the judgment agreeing with the conclusion arrived at by S.B. Sinha,J. except on the question of bias attributed to the enquiry committee observed in Paragraph 124 of the judgment as follows; "124. The High Court has not considered the case in the proper perspective. The consequences of en mass cancellation would carry a big stigma particularly on cancellation of the selections which took place because of serious charges of corruption. The question arises whether for the misdeeds of some candidates, honest and good candidates should also suffer on en mass cancellation leading to termination of their services ? Should those honest candidates be compelled to suffer without there being any fault on their part just because the respondents find it difficult to segregate the cases of tainted candidates from the other candidates ? The task may be difficult for the respondents, but in my considered view, in the interest of all concerned and particularly in the interest of honest candidates, the State must undertake this task. The unscrupulous candidates should not be allowed to damage the entire system in such a manner where innocent people also suffer great ignominy and stigma." In paragraph 126 the conclusion arrived at was; 5 "while following the ratio of the said case, in the facts and circumstances of the case, we deem it appropriate to set aside the order of the respondents cancelling the en mass selections and direct the respondents to examine each case separately on its merits and submit a report to this court." The learned Single Judge has stated his conclusion upon the point in para 118 of the judgement in the following words - a conclusion with which I entirely agree; "118. Thus, it cannot be said that the irregularities or discrepancies were of such large proportion where there was no other option except to cancel the entire recruitment itself. Though it may be repetitive, but untainted selection could have been identified if there was a will to do so." In the circumstances I am in agreement with the view taken by the learned Single Judge that it was not impossible to segregate the tainted from the untainted selections but unfortunately no exercise in that direction was made by the Committee. The enormity of the exercise is only proportionate to the enormity of the recruitment drive and should not therefore be a factor to deter the exercise. Sri Patwalia pointed out certain irregularities found by the Misra Committee in the selections made by some Recruitment Boards, other than Allahabad. The learned single judge has given a finding about the percentage of irregularities found by the Misra Committee in respect of other centers too and has found that although the percentage of irregularities found in those centres was less than Deoria, the Misra Committee had recommended cancellation of the selections. The Allahabad case was made the lead case. However, no such irregularities have been pointed out by Mr. Patwallia in the other selections which could vitiate the entire selections It was then contended by learned counsel for the appellant that no opportunity of hearing need have been granted to the candidates whose selections/appointments were cancelled in view of the fact that it was a case of mass scale irregularities found in the selection. The apex court itself in Inderpreet Singh Kahlon's case has distinguished between a proven case of mass copying by candidates in a Board examination and an unproven imputed charge of corruption where the appointment of a civil servant is involved. The apex court observed; "46. A distinction moreover exists between a proven case of mass cheating for a board examination and an unproven imputed charge of corruption where the appointment of a civil servant is involved." 6 "50. In those cases also tainted cases were separated from the non-tainted cases. Only, thus, in the event it is found to be an impossible or highly improbable could en masse orders of termination have been issued. "51. Both the State Government as also the High Court in that view of the matter should have made all endeavours to segregate the tainted from the non-tainted candidates." In paragraph 123 of his judgment Dalvir Bhandari, J. has held that when the basis of termination is a serious allegation of corruption, then it is imperative that the principles of natural justice must be fully complied with. The learned Single Judge has on facts observed and it was indeed not disputed before us that no opportunity of hearing was given to the candidates whose selections/appointments have been cancelled. We may now refer to the cases cited by Sri P.P. Rao upon the point whether opportunity of hearing was required to be granted. In Vijay Kumar Nigam Vs. State of M.P. [1996 (11) SCC 599] a dismissal of an employee after a departmental enquiry was challenged on the ground that the copy of the report of the preliminary enquiry was not given. It was held that a preliminary enquiry does not form the foundation of an order of punishment and therefore it was not necessary to supply a copy thereof. In Narayan Dattatraya Ramteerthakhar Vs. State of Maharashtra and others [(1997) 1 SCC 299] the contention that that preliminary enquiry was not properly held was repelled on the ground that the preliminary enquiry was to be followed by a regular enquiry. In the case of Arun Kumar [2007 (1) SCC 283] it was held that in the preliminary enquiry giving of opportunity of hearing was not necessary as it is followed by a departmental enquiry. The distinction between these cases and the present one is obvious. In the cases cited punishment was not founded upon the report of the preliminary enquiry. In the present case however the report of the Misra Committee has resulted in civil consequences against the writ petitioners in that the State Government has acted upon the said report in cancelling the selections/appointments of the writ petitioners. The following passage from S.A. De Smith's Judicial Review 6th Edition explains how the concept of hearing is related to the nature of administrative enquiry; 7 "Proximity between investigation and act or decision. The degree of proximity between the investigation in question and an act or decision directly adverse to the interests of the claimant may be important. Thus, a person conducting a preliminary investigation with a view to recommending or deciding whether a formal inquiry or hearing (which may lead to a binding and adverse decision) should take place is not normally under any obligation to comply with the rules of fairness. But such a person may be placed under such an obligation if the investigation is an integral and necessary part of a process which may terminate in action adverse to the interest of a person claiming to be heard before him." The present enquiry was not a mere administrative enquiry. An administrative enquiry does not give rise to any adverse action founded upon it. The enquiry in the present cases can not be classified either as a preliminary enquiry or as a regular departmental enquiry. It has two faces. On the one hand it is a fact finding enquiry but on the other hand it has resulted in civil consequences to the writ petitioners in that their selections/appointments have been cancelled. The procedure of affording opportunity required to be observed in a regular enquiry where the enquiry could result in civil consequences was not followed. It is well settled and it is also clear from the decisions above cited by Sri P.P. Rao that a preliminary enquiry is to be followed by a regular departmental enquiry before adverse action is taken. THIS has not happened in the present case. On the question as to whether opportunity should be granted or not in such cases Sri R.N. Singh, learned senior counsel for the writ petitioners relied upon the decision in Basudeo Tiwary Vs. Sido Kanhu University and others, [(1998) 8 SCC 194]. That was a case of cancellation of appointment. It was held that opportunity of hearing in such a case is necessary. Another decision cited is that of Shrawan Kumar Jha and others Vs. State of Bihar and others, [1991 Supp. (1) SCC 330]. That was a case of cancellation of appointment and it was held by the apex court that hearing was a pre requisite. In that case appointments of about 175 assistant teachers were cancelled on the ground that the appointment was made by an incompetent authority and the reservation rules were not followed. In that case although the infirmity in the appointment was based on a fundamental ground common to all the teachers affected, the apex court held that opportunity was necessary. No doubt the aforesaid two decisions relied upon by the learned counsel for the respondents relate to a case where cancellation of appointment of a few individuals was in question but the proposition of law has been laid down by the apex court in no uncertain words. The same principle of law was applied by Dalveer Bhandari, J. in Kahlon's case in paragraph 123 of the judgment. In the circumstances we are of the view that after segregating the tainted and non-tainted candidates in case the State Government decides to cancel the appointment of those found to be tainted it is incumbent to afford opportunity of hearing to those against whom adverse action is proposed. The learned Single Judge although has not given any specific finding upon the point that the order of the State Government was vitiated on account of want of opportunity but as a fact he has recorded a finding that no opportunity was given and he has also recorded a finding that where civil consequences are to follow the principles of natural justice have to be observed. The learned Single Judge has relied upon the decisions in Dev Dutt Vs. Union of India and 8 others [2008 AIR SCW 3486] and in the case of Nagarjuna Construction Company Limited Vs. Government of Andhra Pradesh [2008 (71) AIC 14]. It has been held in those cases that the question to be asked in every case is to determine whether the principles of natural justice have been followed. From Nag Arjuna Construction Company Limited case the following passage has been quoted in the judgment of the learned single judge, which we find useful to refer; "Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life." In this case there is no dispute upon the point that there are two categories of constables affected one: those who had been given appointment letters and had joined and others who were merely selected candidates and had been sent for training during which they were being paid some stipend. The order of cancellation of the selections/appointments has undoubtedly resulted in civil consequences to these persons. Opportunity was therefore required to be given. Sri P.P. Rao and Sri P.S. Patwaliya submitted that a committee headed by the Chief Secretary was constituted by the State Government on 4.10.07 as a result of the cabinet decision to go into certain questions which we shall refer to presently. The committee was constituted after the decision of the State Government impugned in the present cases. The report has not been referred to by the learned Single Judge in his order. The learned counsel for the appellants have placed reliance upon the report to demonstrate that it was found by the Chief Secretary's committee that the selection was tainted by corruption. It is common ground between the parties namely counsel for the appellants as well as counsel for the respondents that on the writ petitioners application it was ordered by the learned Single Judge that the report of the Chief Secretary be produced in a sealed cover as the State was claiming privilege but the counsel appearing for the writ petitioners stated that they had downloaded the report of the Chief Secretary from the internet and were not insisting upon a certified copy of the report being given to them but the report as directed was produced, seen by the learned Single Judge and returned. There is however nothing to indicate that in the course of the arguments before the learned Single Judge the State had placed reliance upon any finding in the report. The question which has arisen in these appeals is whether the report of the Chief Secretary is a relevant material for the decision of these cases. Another facet of the question is what was the scope of enquiry to be made by the Chief Secretary and what findings have been given in the said report. The report of the Chief Secretary has been filed along with an affidavit of the Special Secretary Dilip Kumar Gupta. However an affidavit explaining the nature of the enquiry held by the Chief Secretary's committee has been mentioned in the affidavit of J.N. Chambers. It has been stated that the purpose of the committee was not to justify or nullify action/selection made. The purpose rather was to make the procedure for selection transparent in future and to find out whether the selections have been influenced by high political/administrative 9 levels and, if Yes, to fix responsibility. Our attention has been drawn to para 8 (f) of the affidavit of J.N. Chambers. The relevant portion is quoted below;- " That the appointment of Enquiry Committee is a subsequent action, neither aimed nor directed to justify the cancellation of selection of the petitioner nor it has any connection even remotely to the process of cancellation of selection." The conclusion drawn in the Chief Secretary's report is stated in the portion of the report on page 218 of the supplementary affidavit. The findings in the Chief Secretary's report appear to be that the vacancies were artificially created in a planned manner and the then Chief Minister gave his approval and engineered the entire recruitment in a planned manner and that political and administrative interference was clearly visible in the entire recruitment process and clear involvement of Shiv Pal Singh the then Minister of Public Works Department in illegal gratification of money with the cooperation of some other persons and corruption had come to light. It was also prima facie found proved that direct and indirect cooperation in these activities was given by the then Director General of Police Shri Yashpal Singh and Shri Bua Singh and the then Special Secretary to Chief Minister Shri Chandrama Prasad. The report ends with the recommendation made in para 4 of the conclusions that in view of the sensibility of the entire matter, the investigation of the matter should be done by the Central Bureau of Investigation. It is clear from the aforesaid conclusions that the finding regarding corruption referred to are only prima facie findings and they have been left for deeper investigation by the Central Bureau of Investigation. No definite or conclusive finding has therefore been given in the Chief Secretary's report and on a mere prima facie finding of corruption given ex parte it is difficult to uphold an order setting aside any selection or appointment made. There is however no specific or definite finding that any particular candidate had paid the money nor that any particular officer had accepted illegal gratification. Apart from what has been said above, from the body of the report the learned Standing Counsel referred to the portion that there was " charcha" (a talk) about corruption on the part of Sri S. Bhalla, ADGP. It is well settled that the exercise which the writ court is required to perform is to examine the decision making process and not the merits of the decision itself. THIS has been settled in a catena of cases. The committee of the Chief Secretary was constituted after the orders of the State Government impugned in the writ petition. The Chief Secretary's report was non existent at the time when the State Govt. took the impugned decision of cancellation of the selections/appointments. It was not a part of the decision making process as it has come into existence subsequent to the action impugned in the writ petition giving rise to these appeals. Moreover the purpose of the enquiry as explained in the affidavit of J.N. Chambers was not to justify the cancellation of any selection or appointment. In my view in these circumstances any material which was not part of the decision making process cannot be relied upon for sustaining an order impugned under Article 226 of the Constitution of India. Moreover the report is a mere opinion. Although it is settled law that subsequent facts and events can be taken notice of for moulding relief where the said fact or event affects the rights of the parties but a mere report does not affect any right of the party being only an opinion. It is therefore not a relevant material to be taken 0 note of in this petition under Article 226 of the Constitution of India. Moreover it is not in dispute that the report was an ex parte one. Further as I have already found the conclusions arrived at in the Chief Secretary's report are mere prima facie conclusions. In the circumstances I am of the view that the report of the Chief Secretary does not advance the case of the appellants and also cannot be taken into account. In Mohinder Singh Gill and another Vs. Chief Election Commissioner, New Delhi and another [AIR 1978 SC 851] it was held that the decision impugned in the writ petition cannot be supplemented by additional reasons in the counter affidavit. In this connection it is just apt to refer to the oft repeated words of Vivian Bose J in Commissioner of Police, Bombay Vs. Gordhandas Bhanji [AIR 1952 SC 16]:-. "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older." Sri P.P.Rao then relied upon the decision of a Division Bench of this court in Amit Kumar Shukla Vs. Union of India [2008 Vol 5 ADJ, 347] in support of his contention that large scale corruption had prevailed in the impugned selections noticing which the Division Bench had directed investigation by the Central Bureau of Investigation. All that has been directed by the Division Bench is that the CBI investigation may be made in the matter. No finding has been given by the court that corruption had prevailed in the selection . It is conceded by the learned Standing Counsel that the matter has been taken to the apex court and on 15.9.08 a stay order has been granted by the Supreme Court, the result being that even the CBI investigation cannot be carried on so long as the stay order is continuing. The decision in Amit Kumar Shukla (supra) therefore does not advance the case of the appellants. Sri P.P. Rao also relied upon certain reports of the anti corruption organization about certain irregularities in the selection process and about substitution of certain answer books. The learned Single Judge in para 67 has referred to an affidavit filed by D.K. Gupta, Special Secretary, Home in which it has been stated that in several criminal cases against the officials, the prosecuting agency has sought sanction for criminal prosecution of the Chairman and members of different Recruitment Boards under various sections of the Indian Penal Code read with the Prevention of Corruption Act as sufficient evidence against them was found by the Anti Corruption Organization of the State and has posed a question in the order wondering as to why these officials have not been placed under suspension. Another finding recorded by the learned single judge is that except in the case of recruitment to the wireless wing covered by Report No. 44 no decision of approval was taken by the Director General of Police in respect of the reports. Even regarding Report No.44 a one line order of acceptance was passed. Indeed the counsel for the appellant did not challenge this finding before us in the course of the 1 argument. It has also been found by the learned Single Judge that in most of the cases the Director General of Police sent the reports to the State Government within a day or two of having received them. The Director General of Police did not apply mind to the correctness of the report. Learned counsel for the respondents drew our attention to Paragraph 38 of the affidavit of D.K. Gupta filed in support of the stay application in the special appeal wherein it has been stated that the application of mind by the Director General of Police was not necessary as it was a policy decision and the report was sent to the State Government, which has passed a detailed order. It is, thus, clear that the Director General of Police had merely forwarded the reports in a hasty manner without application of mind. It has also been found by the learned Single Judge that the State Government too acted in haste and that in almost all the cases the reports were accepted within a day or two of their submission before the Chief Minister/State Government. THIS finding has not been assailed in the memo of appeal. In paragraph 32 of the writ petition of Pawan Kumar Singh it has been stated that the decision was taken by the State Government in a very hasty manner. Learned standing counsel could not refer to any paragraph in the counter affidavit denying specifically or denying at all the averment that the decision was taken in a hasty manner. The dates given in the chart prepared by the learned Single Judge have not been assailed by the appellant in the memo of appeal. The learned Single Judge in paragraphs 79, 82 and 84 has referred to the various dates on which records were sent to the DGP and State Government and the date of the cancellation order. I am not quoting the chart prepared by the learned Single Judge in ex tenso but the fact that the decision in many of the reports was taken within a day or two of the submission of the report before the State Government is quite clear from the chart. It therefore appears that the State Government acted in a hasty manner and did not apply its mind and I affirm the findings of the learned single judge upon this point. Another aspect relating to the non-application of mind at the level of the State Government has been noticed by the learned Single Judge. It appears that the selections made by the Recruitment Board of Sitpaur and Gonda were challenged in the writ petition of Harendra Singh reported in 2005 (6) A.W.C. 6161 and the selections were found to be valid and the writ petition was dismissed by the Lucknow Bench. The same selections have been found to be tainted by the Misra Committee and the decision to cancel them has been taken by the State Government by the impugned order. The Lucknow Bench also observed that it had examined the record of 13 other recruitment centers and did not find any invalidity in these selections. The decision in Harendra Singh's case was relevant. Although the Evidence Act does not apply in respect of departmental inquiries strictu sensu but even if the principles regarding relevancy are borrowed there from; the decision is relevant under Section 13 of the Evidence Act as a recognition of a fact that the candidates were regularly and validly selected and had a right though not an indefeasible right of appointment but at least of legitimate expectation. The decision was therefore required at least to be considered. Moreover, the said decision is also relevant under the principles of issue estoppel. Upon this point Sri R.N. Singh placed reliance upon Dadu Dayalu Mahasabha, Jaipur (Trust) Vs. Mahant Ram Niwas and another, [JT 2008(6) SC 440]. In that case the apex court has considered the difference between principles of res judicata and issue estoppel. 2 Sri P.P. Rao, learned counsel for the appellant submitted that the scope of judicial review against a fact finding in house enquiry is very limited. He placed reliance upon the decision of the in A.I.R. 1966 SC 1721 Prabhu Vs, Rama Rao and others, (1972) 4 SCC 618 Union of India Vs. Sardar Bahadur, (1991) 2 SCC 716 Maharasthra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi and others, (1993) 2 SCC 299 U.P. Financial Corporation Vs. Gem Cap (India) Private Limited and others, (1999) 5 SCC 762 Bank of India and another Vs. Degala Suryanarayana and (1999) 8 SCC 90 R.S. Saini Vs. State of Punjab and others. We have already held that undoubtedly the scope of interference by the High Court in a fact finding in house enquiry is very limited and is confined to challenging the decision making process alone vide the State of U.P. Vs Jauhari Mal, [2004 (4) SCC 714]. However, as we have already observed above that in this case it was not a mere fact finding enquiry under challenge but an enquiry, which has resulted in the writ petitioners being visited with civil consequences which is not immune from attack and there is nothing laid down in the cases cited by Sri Rao which may preclude interference by this Court in the order of the State Government on the findings recorded by the learned single judge and affirmed in this appeal. In the case of Rama Rao (supra) cited by Sri Rao itself it was held that the High Court can interfere where departmental authorities have held the proceedings in breach of principles of natural justice or where the authorities have disabled themselves from reaching a fair decision by considerations extraneous to the evidence and the merits of the case or by taking into account irrelevant considerations or where the conclusion is arbitrary or on similar grounds. Another finding recorded by the learned Single Judge is that while in the case of the writ petitioner the enquiry was held post haste and it was also followed by an order cancelling their selections/appointment, but the same speed has not been adopted in the case of officers who were the greater sinners. It is pointed out by the Standing Counsel that in the case of officers criminal prosecutions or departmental inquiries are pending. However, it is important to note that in the case of the officers even the orders of suspension were subsequently withdrawn and now the officers are merrily serving. Although the fact that no action has yet been taken against the officers by itself may not be determinative of any particular conclusion but taken in the totality of the other facts and circumstances to which reference has been made above it is an indication of the fact that the State government has adopted a different attitude in respect of proceedings against the officers. In my opinion action should have been taken for speedily proceeding with the departmental inquiries against them but instead we find that a period of two and half years has elapsed and not a single case has been referred to where some disciplinary action may have been taken against any officer. It is necessary now to take notice of one submission made by Sri Khare, learned counsel for the respondents, that in the present case provisions of Article 166 of the Constitution of India have not been complied with inasmuch as the order directing enquiry is not expressed to have been passed in the name of the competent authority. He refers to communication dated 11.6.2007 and 12.6.2007 made by the Secretary, Home, State of Uttar Pradesh to the Director General of Police, Uttar Pradesh, to the effect that the investigations as directed be made in accordance with law in respect of the complaints. It 3 is submitted that there is no recital in the order that the directions have been issued in the name of the Governor nor there is any material on the record to demonstrate that any such order was, in fact, passed by the Chief Minister or by the Minister, In-charge of the Department. THIS point was considered by the learned Single Judge and the argument was repelled. It is not disputed that the Director General of Police, Uttar Pradesh had power to order for an enquiry in a situation where irregularities in the selection process or allegations of fraud and corruption are made. Even assuming that the Director General of Police, may have been labouring under a misconception that the direction to appoint the Enquiry Committee was the result of the directions received by him but as it is not disputed that the Director General of Police himself had the power, the principle that the exercise of power is referable to a jurisdiction which confers validity upon it would be applicable to the case. In this view of the matter if the Director General of Police was satisfied that a case for an enquiry into the complaints regarding mass-scale irregularities in the selection process and prevalence of corruption had been made, it was open to him to direct the enquiry. We, therefore, repel the argument of learned counsel for the respondents. Before parting with the case, we are pained to observe that while the bureaucracy is said to be the steel-frame of the administration and a broad continuity in administration is required to be maintained, we find that in this case with the change of the elected Government, the administration upon which the fate of people hangs in the balance changed colour to the point of making complete somersault in its stand and the very actions which were zealously defended in the previous regime have been brought to severe condemnation shortly after the arrival of the new political bosses. The Sitapur and Gonda selections had been challenged by the non selected candidates in Harinder Singh's case. The administration had vigorously defended the selections which were even upheld by the High Court but a different stand has now been taken. A perusal of the report of the Chief Secretary indicates that allegations have now been made by relatively junior officers of the bureaucracy against the previous political bosses and against high officials of the State Government. I am not suggesting that an act vitiated by fraud or other serious irregularity cannot be undone whenever detected but if the fraud or irregularity was known the bureaucracy is not expected to slavishly succumb to pressure. In the body of the Chief Secretary's report, the conduct of the then DGP and of the Special Secretary to the Chief Minister and of certain other officials has been deprecated. The following is an extract from the conclusion No.1 in the Chief Secretary's Report:- "In this way prima facie it is clear that the then Hon'ble Chief Minister meticulously engineered the entire recruitment in a planned systematic manner. It appears that all the Principal Secretaries posted at that time in the Home Department were helpless against the pressures and pulls exerted from the office of the then Chief Minister and thus failed to perform their duty." 4 I am not expressing any opinion as to whether the conclusions drawn in the report are correct but this picture certainly reflects a very disturbing state of affairs and raises a question whether the administration can again go back upon their present stand should the elected Government again change. However, optimism being the healthier attitude and on the principle that more cannot be read than what is actually said I read the observations as confined to the then high ups in the Government and not as condemnation of the administration generally. The situation that has cropped up in this case is unfortunate. It is one of the duties of the Government in a welfare state to provide job opportunities to the people. On account of lack of jobs reflected by the fact that even at the lowest level hundreds of applications are received against a single post, a situation has arisen where people are forced to do anything in order to get a job, even at the menial and lower rungs. If job opportunities were not scarce this unfortunate muddle in the employment process would not have been created. In the result, I am of the view that an effort should have been made by the concerned authorities to segregate cases of the tainted and non-tainted candidates and that not having been done, I am in agreement with the learned Single Judge that the orders of the State Government cancelling selection/appointments cannot be sustained. I also agree with the view taken by the learned Single Judge that the action taken by the State Government was a hasty one. In the circumstances, I leave it open to the State Government to now conduct an exercise of getting the tainted candidates from the non-tainted separated. Subject to the aforesaid liberty to the State Government, I dismiss the appeals. 4.3.2009 sm/s/nethra/bgs By Hon'ble Rakesh Sharma, J With regards to my esteemed brother, so far as operative part of the order is concerned, I fully agree with my senior Brother, but on some points, I will express my own views by a separate judgement. 5