Appellate Division
Mohammad Sohel Rana and others v Public Service Commission and others
Civil Appeal 84/2024 · Appeals allowed · Decided 20 February 2025
The appellants passed every stage of the 27th BCS examination and were recommended for appointment in 2007. By Memo dated 12.06.2007 the Ministry of Establishment, conveying the Caretaker Government's decision, asked BPSC to cancel the viva voce result and retake it. After the second viva voce, 1,137 previously successful candidates, including the appellants, were excluded. In 2009 and 2010 the High Court Division directed their appointment, but on 11.07.2010 the Appellate Division, hearing the Government's leave petitions, set aside the High Court Division's judgment. On review, leave was granted and these appeals followed. The Appellate Division unanimously allowed the appeals. It found that BPSC had acted on the Government's directive, that the cancellation rested on unsubstantiated press reports with no inquiry, and that sitting the second viva voce under compelling circumstances did not create estoppel. It also held that setting aside judgments without granting leave violates natural justice. The High Court Division's judgments were revived and the respondents directed to comply forthwith.
- Whether the cancellation of the first viva voce result of the 27th BCS examination and the exclusion of candidates who had passed it could be upheld.
- Whether candidates who sat the second viva voce examination had waived their claim and were estopped.
- Whether the Appellate Division may set aside a judgment of the High Court Division at the leave stage without granting leave.
- The 2010 finding that there was no material showing the decision was taken under Government pressure was incorrect, given the Memo dated 12.06.2007 communicating the Government's decision to BPSC.
- Candidates who sat the second viva voce examination under compelling circumstances, after their earlier writ petitions failed, did not relinquish their rights and were not estopped.
- Cancelling the result on the basis of unsubstantiated press reports, without any inquiry or report on the nature and extent of the alleged irregularities, could not be justified as being in the public interest.
- Setting aside a judgment of the High Court Division or the Administrative Appellate Tribunal without granting leave is a gross violation of natural justice and of the due process mandate of Article 31.
- The Appellate Division has no power to adjudicate an application under Article 102, so an order of that Division discharging a Rule issued by the High Court Division under Article 102 is void ab initio.
Hence, the practice of setting aside any judgment and/or order passed by the High Court Division or the Administrative Appellate Tribunal, as the case may be, without granting leave, is not only a gross violation of the principle of natural justice
