Patna High Court
Priyatosh Kumar Bharti vs The State Of Bihar And Ors on 12 March, 2021
Author: Anil Kumar Upadhyay
Bench: Anil Kumar Upadhyay
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1332 of 2018
======================================================
1. Santosh Kumar Yadav Son of Satya Narayan Yadav, resident of Baijnathpur,
Ward No. 6, P.O. and P.S.- Araria, District- Araria.
2. Praveen Kumar, Son of Mithilesh Kumar Ambastha, resident of Renu
Niwas, Chiraiyatar, Budh Nagar, Road No. 1, Postal Park, P.S.- Kankarbagh,
District- Patna.
3. Manoj Kumar, Son of Ram Prakash Rai, resident of Village- Phulwaria,
Ward No. 5, P.O.- Phulwaria, P.S.- Phulwaria, District- Begusarai.
4. Md. Naque Emam, Son of Md. Razi Ahmad, resident of Nehal Lodge, C/o
Nehal, at Dargah Ghera Road, P.S.- Sultanganj, District- Patna.
5. Santosh Kumar, Son of Dashrath Mandal, resident of Village- Sakraili, P.S.-
Barari, District- Katihar.
6. Narendra Prasad, Son of Shankar Ram, resident of Village- Dhamar, P.S.
Muffasil Ara, District- Bhojpur.
7. Sanjay Kumar Sharma, Son of Sri Prem Kumar Sharma, C/o Vijay Kumar
Sharma, resident of Village- Bekapur Imli Talle, Near Shivajee Chowk, P.S.-
Munger, District- Munger.
8. Suresh Chandra Thakur, Son of Bishwanath Thakur, resident of Village-
Chamrahra, P.O.- Mahnar Road, District- Vaishali.
9. Sudhanshu Kumar Singh, Son of Paras Nath Singh, resident of Village-
Kashipur, Post- Bidupur, P.S.- Raja Pakar, District- Vaishali.
10. Manoj Kumar, Son of Sri Pawan Kumar Singh, resident of Village- Kothia,
P.S.- Bangra, District- Samastipur.
11. Raghvendra Narain, Son of Sri Ramadhar, resident of Village- Sanda Niwas,
S.K. Bihar Colony, Beur, P.S.- Anisabad, District- Patna.
12. Sanjeev Kumar, Son of Umeshwar Prasad, resident of Village- Tale Buzurg,
Via- Majaria, Post- Tale, District- Siwan.
13. Bijendra Pandit, Son of Ram Nihora Pandit, resident of High Tension
Insulator Factory Cooperative Colony, Tetri Toli, Namkum, District- Ranchi.
... ... Petitioner/s
Versus
1. The State Of Bihar
2. The Principal Secretary, General Administration Department, Govt. of Bihar,
Patna.
3. The Principal Secretary, Finance Department, Govt. of Bihar, Patna.
4. The Principal Secretary, Cooperative Department, Govt. of Bihar, Patna.
5. The Bihar Staff Selection Commission through its Chairman.
6. The Secretary, Bihar Staff Selection Commission, Patna.
7. The Economic Offence Unit, Govt. of Bihar through its Superintendent of
Police, Patna.
Patna High Court CWJC No.1332 of 2018 dt.09-03-2021
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... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 1909 of 2018
======================================================
1. Ram Milan Thakur son of Kapil Thakur resident of C/o Deogai Singh, Near
Dr. Shanti Rai, P.O. - Lohiyanagar, District - Patna.
2. Ranjan Kumar son of Sri Devi Prasad resident of Nala Road, Dinkar Chowk,
District - Patna.
3. Raj Kumar son of Ramji Prasad Singh resident of Prakash Bhawan, South
Chandmari Road, Kankarbagh, District - Patna.
4. Arbind Kumar son of Sri Chandra Deo Mahto resident of C/o Sri Rajeshwari
Prasad, Village - Biyawani, P.O. - Maghra, District - Nalanda.
5. Md. Shakil Khan son of Md. Azimullah Khan resident of Village At P.O. -
Thana Chowk, Bikramganj, District - Rohtas.
6. Brajesh Kumar son of Shri Bindeshwari Prasad Das resident of Village P.O.
- Ishakchak Near Middle School, District - Bhagalpur.
7. Vijay Kumar Pal son of Dr. Hiralal Pal resident of Village - Lalapur, P.O. -
Kudra, District - Kaimur.
8. Baljeet Singh son of Sri Kalika Singh resident of Village P.O. - Ramalihra,
District - Rohtas.
9. Rahul Kumar son of Shri Ramesh Chaudhary resident of Shivalaya Mandir
Road, P.O. Bairgania, District Sitamarhi.
10. Shrawan Kumar son of Sri Yogendra Singh resident of R.E. Building Bailey
Road, Bihar Police Radio, P.S. - Shastrinagar, District - Patna.
11. Harinandan Prasad son of Sri Sita Ram Prasad resident of Village - Chhoti
Nawada, P.O. - Khusrupur, District - Patna.
12. Bipul Kumar Mishra Prabhat son of Sri Akhileshwar Mishra resident of P.O.
- Orro, P.S. Hisua, District - Nawada.
13. Vikash Chandra son of M.P. Sinha resident of C/o Usha Medico, Gupta
Complex, P.S. Gardanibagh, Road No. 1, District - Patna.
14. Akhilesh Pandit son of Sri Ram Sagar Pandit resident of Village - Kodihara,
P.O. - Mouri, P.S. - Paliganj, District - Patna.
15. Sheo Shankar Kumar son of Aditya Prasad Choudhary resident of village -
Anti, P.O. - Kadirganj, District - Nawada.
16. Ravi Ranjan son of Sri Satendra Narayan resident of C/o S.M. Gupta, Postal
Park, Road No. 3, In front of Brijbala Bhawan, District Patna.
... ... Petitioner/s
Versus
1. The State Of Bihar
2. Bihar Staff Selection Commission , Patna through its Secretary.
3. Chairman, Bihar Staff Selection Commission, Patna.
Patna High Court CWJC No.1332 of 2018 dt.09-03-2021
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4. Secretary, Bihar Staff Selection Commission, Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 22379 of 2018
======================================================
Priyatosh Kumar Bharti S/o Deo Nandan Pandit, R/o Mohalla-Pandit Nagar,
Baighabad, P.S.-Biharsharif, District-Nalanda, Bihar.
... ... Petitioner/s
Versus
1. The State Of Bihar
2. The Principal Secretary, General Administration Department, Government
of Bihar, Patna.
3. The Principal Secretary, Finance Department, Government of Bihar, Patna.
4. The Principal Secretary, Cooperative Department, Government of Bihar,
Patna.
5. The Bihar Staff Selection Commission through it's Secretary, Patna.
6. The Secretary, Bihar Staff Selection Commission, Patna.
7. The Economic Offence Unit, Government of Bihar through it's
Superintendent of Police, Patna.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 1332 of 2018)
For the Petitioner/s : Mr.Prashant Sinha, Advocate
For the Respondent/s : Mr.Sheo Shankar Prasad -SC-8
(In Civil Writ Jurisdiction Case No. 1909 of 2018)
For the Petitioner/s : Mr.Abhinav Srivastava, Advocate
For the Respondent/s : Mr.Sarvesh Kumar -GP-24
(In Civil Writ Jurisdiction Case No. 22379 of 2018)
For the Petitioner/s : Mr.Rakesh Kumar Singh, Advocate
For the State : Mr.Ga 4
For the E.O. Unit : Mr. Vishwanath Prasad Singh, Sr. Advocate
Mrs. Soni Srivastava, Advocate
For S.S.C. : Mr. Satyam Shivam Sundaram, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
CAV JUDGMENT
Date : 09-03-2021
Heard learned counsel for the petitioners and the
respondents.
1. All the three writ applications have been filed by the
petitioners challenging the decision dated 27.7.2016 of the Bihar Staff
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Selection Commission (hereinafter referred to as 'the Commission'),
whereby the Commission had decided to return back the left out vacancies
of Auditor for sending fresh requisition.
2. In the year 2007 vide advertisement No. 2403, the
Commission invited application for appointment on 570 posts of Auditor.
The petitioners in all the three writ applications applied for the post. Their
objective type examination was held on 7.10.2012. They were asked to keep
carbon copy of the OMR sheets after the examination was over in terms of
the instruction in the objective type examination while blackening the OMR
sheets.
3. On 20.10.2012 a case was registered by the Economic
Offence Unit vide Economic Offence Unit P.S. Case No. 23 of 2012 on the
allegation that the lock of the strong room of the Commission in which
OMR sheets were kept, was broken and OMR sheet was tampered and
manipulated to extend favour to certain candidates. While the case was
pending, the Commission published result of 400 candidates on 22.02.2013.
The result of 10 candidates were kept in sealed cover subject to outcome of
the Economic Offence Unit P.S. Case No. 23 of 2012. Aggrieved by the
result of the aforesaid examination conducted by the Commission certain
unsuccessful candidates filed CWJC No. 5771 of 2013 and analogous cases.
On 9.4.2013 28 successful candidates intervened in the pending CWJC No.
5771 of 2013. A single Judge of this Court granted time to the respondents
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to file counter affidavit to apprise the Court about the present position of the
criminal case i.e. Economic Offence P.S. Case No. 23 of 2012. The Court
on the undertaking of the counsel for the Commission that they will not
recommend the names of the candidates for the post of Auditor till final
decision of the writ application, declined to pass any interim order. On
28.4.2014 the matter was again heard and the court asked the counsel for
the Economic Offence Unit to produce the materials to show that there was
actual tampering with the result and outcome of the examination. The Court
in most unambiguous term reminded the Economic Offence Department
that suspicion can never partake the place of proof as they stand today. The
Court also allowed intervention applications filed by certain successful
candidates. On 8/9.5.2014 notice was published in the newspaper whereby
successful candidates were asked to present themselves before the office of
the Commission on 2nd and 3rd June, 2014 along with carbon copy of the
OMR sheets, attested copy of the Admit Cards, etc. Similar information was
also uploaded on the website of the Commission. The Commission also
requested the Economic Offence Unit to associate with the Commission in
the process of verification and a Senior Deputy Superintendent of Police ,
IO of Economic Offence Unit participated in the verification process. After
investigation it was found that (a) out of 400 candidates only 355 candidates
appeared in the office of the Commission for verification, (b) out of 355, 31
candidates did not produce their carbon copy of the OMR sheets for
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verification, (c) out of 324 candidates minor discrepancies were found
with respect to 43 candidates whereas major discrepancies were found with
respect to 15 candidates. On verification the Commission and the
Economic Offence Wing found the OMR sheets of 266 candidates
unblemished and thereafter certain correspondences were made in
connection with the suspicious candidates. In the backdrop of the aforesaid
facts and circumstances, CWJC No. 5771 of 2013 and analogous cases were
finally decided by oral judgment dated 19.2.2015. the relevant part of the
discussions in CWJC No. 5771 of 2013 is quoted below for ready reference.
"From the above authoritative pronouncements, the
preponderance of precedent is inescapable that the resort to
cancellation of the entire selection process can be taken only when
the impossibility to weed out the tainted from non-tainted is
clearly established, and in all such cases the effort must be made
not to put the non-tainted candidates at peril for the alleged
misdeed of some candidates. As already taken into notice the
materials brought on record by the petitioners, at the most, only
demonstrate that the interpolations were attempted by the
miscreants at the behest of only such candidates who paid them
hefty sum. As earlier mentioned, this Court approved the proposed
verification exercise of the original OMR sheets answer sheets by
comparing the same with the carbon copies to be produced by the
candidates, to be done jointly by the respondent-Commission and
Economic Offence Unit. The result of such verification exercise,
reported by the Commission and the Economic Offence Unite in
their separate supplementary counter affidavits, also rules out the
possibility of involvement of majority of the candidates in the
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alleged act of interpolations in the OMR answer sheets. To be
specific, the Economic Offence Unit has found prima facie
interpolations in the OMR answer sheets of only 19 candidates
whereas the Commission has found cases of 15 candidates to have
major discrepancies in their OMR sheets. In this fact situation,
this Court is not inclined to align with the submissions on behalf
of the writ petitioners that the alleged misdeeds were all pervasive
in nature and have vitiated the entire examination as well the
result published on that basis. The prayer of the writ petitioners,
therefore, for cancellation of the examination and the result
published on that basis is held to be not sustainable.
The next submission on behalf of the petitioners is that the
answers with regard to some of the objective type questions as
exposited from the model answer option provided by the
Commission were not correct. It is the case of the petitioners that
they submitted their objections and suggestions in that regard but
the commission did not respond. The Commission in its counter
affidavit, however, has stated that after receiving the objections,
the Commission got the matter verified by the subject experts and
the decision was taken to change the model answers in accordance
with the advice by the experts. The details in this regard have been
mentioned in the counter affidavit question-wise. This stand of the
Commission has not been controverted by the petitioners. The
Apex Court has adverted to this issue in the case of H.P. Public
Service Commission Vs. Mukesh Thakur [2010 (3) PLJR SC 127]
and their Lordships have observed that "if there was a discrepancy
in framing the question or evaluation of the answer, it could be for
all the candidates appearing for the examination." it is not the case
of the petitioners that any discrimination in this regard has been
made while evaluating the answer sheets. In this view of the
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matter, this Court does not find substance in the submission on
behalf of the petitioners that the written test and the result
published on that basis are fit to be cancelled. Similarly, the
challenge to the result by including the 10 candidates with star
marks showing that their results have been kept in sealed cover
and would be subject to the outcome of the Economic Offence
Wing P.S. Case No. 23 of 2012, is equally devoid of merit. It is
accepted position that the investigation is going on in the matter
and if those candidates have secured the required marks, the
Commission has committed no wrong in publishing their results
making the same, at the same time, subject to the outcome of the
investigation.
At this juncture, the stand of the Commission as
disclosed from paragraph-12 of the supplementary counter
affidavit dated 27th June 2014 is required to be considered. The
Commission has found that the OMR answer sheets of altogether
266 candidates, out of 400 successful candidates, are
unblemished, and with regard to 43 candidates, minor
discrepancies have been found in their OMR answer sheets
whereas 15 candidates have been found to have major
discrepancies in their OMR answer sheets. The Commission has
proposed to make recommendations for appointment of the names
of 266 candidates with no discrepancy and 43 candidates with
minor discrepancies in their OMR answer sheets. However, it is
required to be noticed here that the majority of the 43 candidates
with regard to whom the Commission has found minor
discrepancies has been included in the list of 19 candidates whose
OMR answer sheets have been identified as suspicious by the
Economic Offence Wing in its supplementary counter affidavit
dated 01.07.2014.
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It is apparent that the matter relates to appointment
to the posts of Auditors for which the advertisement was
published in the year 2007 itself and much delay has already
occurred. In the background of the facts, as mentioned above,
applying the Wednesbury principle of unreasonableness, the
proposal by the Commission to recommend the names of 266
candidates with unblemished OMR answer sheets for
appointment, does not appear to be reprehensible. Even adopting
the proportionality as a legal test also, it appears that the
Commission has struck a correct balance between individual
rights and public interest in the present fact situation. Therefore,
this Court finds no impediment in accepting the proposal by the
Commission to recommend the names of 266 candidates whose
OMR answer sheets have been found unblemished as mentioned
in the supplementary counter affidavit of the Commission, for
appointment to the posts of Auditor against Advertisement No.
2407. Their appointments, however, would be subject to the final
outcome of the Economic Offence Wing P.S. Case No. 23 of 2012.
The Commission is directed to proceed accordingly, as prayed
with regard to these 266 candidates.
The cases of remaining candidates including the 31
candidates, who have failed to produce the carbon copies of their
OMR answer sheets, in spite of specific direction of the
Commission in that regard, to retain the same, as disclosed from
the notice dated 05.10.2012 (Annexure-G to the second
supplementary counter affidavit of the Commission), cannot at
this stage be placed in the same category with certitude, as the
trace of blemish in these cases, cannot be ruled out altogether. The
Commission is therefore, directed to take appropriate decision in
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these cases after the completion of investigation in Economic
Offence Wing P.S. Case No. 23 of 2012 in accordance with law.
The respondent-Economic Offence Unit is directed to expedite the
investigation and complete the same without further delay.
These four writ applications are accordingly
dismissed with aforesaid directions."
4. From the aforesaid discussion, it is apparent that the court
found 266 candidates unblemished. So far as 31 candidates are concerned,
since they failed to produce carbon copy of the OMR sheets, the court held
out that such candidates cannot be placed in the same category with
certitude, as the trace of blemished cannot be ruled out altogether. The
Court directed the Economic Offence Wing to complete investigation and
the Commission was directed to take appropriate decision after completion
of the investigation.
5. CWJC No. 1332 of 2018 was filed by 13 petitioners
whereas CWJC No. 22379 of 2018 was filed by one Prityatosh Kumar
Bharti, against whom there was report of minor discrepancy during the
process of verification of OMR sheets. CWJC No. 1909 of 2018 was filed
by 16 out of 31 candidates who failed to produce the carbon copy of the
OMR sheets during the verification in terms of the notice of the
Commission.
6. On 25.5.2017 the Court noted the submission of the
Commission that on 20.5.2017 the Commission sent letter to the Economic
Offence Unit to apprise the Commission about the outcome of the
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investigation with regard to 43 candidates against whom there was minor
discrepancy. In MJC No. 1263 of 2018 the Court held out that the present
case does not fall in the category of willful disobedience and as such the
contempt proceeding was dropped.
7. Learned counsel appearing on behalf of the petitioners in all
the three cases have vehemently argued that the matter was investigated by
the Economic Offence Unit and after completion of investigation, the
Economic Offence Unit did not find material worth filing charge sheet
against these petitioners and in the absence of any material constituting
offence the action of the Commission in returning the vacancy for fresh
requisition amounts to condemning the petitioners without material.
8. Learned counsel for the petitioners further submitted that
from the scrutiny of the counter affidavit the Court found that beyond
suspicion nothing was found during investigation against these petitioners
to conclusively held out that these petitioners are in any manner connected
in the matter of tampering or manipulation in the OMR sheets. The
background in which the Economic Offence Unit registered a case creates
doubts about the purity in the examination as the strong room where the
OMR sheets were kept was opened in a clandestine manner in dead night
and persons apprehended were found with objectionable material and there
was allegation that they were involved in tampering with the OMR sheets
on payment of huge amount of 2 lack to 9 lacs. Learned counsel for the
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petitioners submits that in such situation when the strong room was opened
unauthorisedly and illegally and there was some material to raise doubt
about the purity of the examination then either the Commission should have
cancelled the entire examination or the Commission should have waited for
report of the pending Economic Offence Unit case and result of
investigation. In such a situation when the Economic Offence Unit did not
find any material constituting offence then drawing distinction between the
266 candidates as unblemished and tossing blame on these petitioners as
blemish is without any basis.
9. Counsel for the petitioners further submits that in CWJC
No. 5771 of 2013 a Bench of this Court vide order dated 28.4.2014
reminded the Commission that suspicion can never take place of proof. The
Court asked the Economic Offence Unit to produce the materials to show
that there was actual tampering and such material of tampering was never
brought by the Economic Offence Unit to show that any tampering was
done.
10. Counsel for the petitioners relied upon the judgment of the
Apex Court in the case of Union Of India v. H.C Goel. AIR 1964 SC 364
AIR 1964 SC 364 to contend that suspicion whatsoever strong cannot
partake the character of proof. Counsel further submitted that in a situation
like instant, there is no justification to treat the cases of these petitioners
different from 266 candidates who were recommended for appointment as
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Auditor as there is no proof of tampering with the OMR sheets of these
petitioners and as such he submits that the judgment of the Apex Court in
the case of Indrapreet Singh Kahlon Vs. State of Punjab: 2006 (11) SCC
356 is not attracted.
11. In order to appreciate the outcome of the investigation in
Economic Offence P.S. Case No. 23 of 2012, the relevant part of the counter
affidavit of Economic Offence Unit is quoted below:-
"7. That it is stated that the role of the answering respondent
was to investigate the Economic Offences Police Station
Case No. 23 of 2012 with respect to which this Hon'ble
Court passed certain orders earlier in connection with
CWJC No. 5771 of 2013 on 19.02.2015 and the said order
has already been complied with by the answering
respondent.
11. That it is stated that so far EOU is concerned, in the
investigation of EOU, EOU found OMR Sheets of nineteen
candidates of Auditor's examination in the doubtful
category when the original OMR Sheets were compared
with the carbon copies thereof.
12. That it is stated that out of the thirteen petitioners, the
Petitioner No. 3 Manoj Kumar (having Roll No. 11723887)
and Petitioner No. 9 Sudhanshu Kumar Singh (having Roll
No. 11422468) were in the list of such 19 candidates whose
OMR Sheets upon comparison with the original vis-à-vis
Carbon Copy varied and anomaly was detected.
13. That is stated that since the variation was not further
supported with any corroborative evidence of tampering the
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examination process by the candidates including the
petitioners, none of the petitioners of Auditor Examination
were made as accused nor were they charge sheeted in this
case by the Economic Offences Unit. It is stated that a letter
clarifying the stand of the Economic Offences Unit on the
points raised by the Secretary of the Commission was sent
under Letter No. 1576/AA (Gaban) dated 20.03.2018.
15. That the relief sought for in Para 1 (iii) is responded to in
view of the fact that Shri Amritendu Shekhar Thakur the
then Senior Deputy Superintendent of Police and Shri Anup
Kumar the then Inspector of Police cum Investigation
Officer were present and deputed when the OMR Sheets
were examined with respect to the Auditor's examination
and in their report it has come that OMR Sheets of nineteen
candidates were found to be in doubtful category when the
original OMR Sheets were compared with the carbon
copies thereof.
It is stated that out of the thirteen petitioners, the
Petitioner No. 3 Manoj Kumar (having Roll No. 11723887)
and Petitioner No. 9 Sudhanshu Kumar Singh (having Roll
No. 11422468) were in the list of such 19 candidates whose
OMR Sheets upon comparison with the original vis-à-vis
Carbon Copy varied and anomaly was detected. However,
since no further evidences transpire during investigation,
they were not charge sheeted in this case.
19. That the statement made in Para 6 relates to the institution
of the EOU PS Case No. 23/12. It is stated that it is true that
Strong Room of the Commission where the OMR Answer
Sheets of Auditor and Junior Engineer Examinations were
kept, its lock was broken in a criminal conspiracy and OMR
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Answer Sheets were tampered. It is stated that after
institution of the case, investigation was duly carried out
and various accused persons were arrested also. It is stated
that it is abundantly clear that the sanctity of the strong
room where the answer sheets were kept was vitiated. It is
stated that accordingly, the Inspector General of Police
Economic Offences Unit, Bihar, Patna vide his Letter No.
57 dated 16.03.2016 apprised the Principal Secretary of the
General Administration Department, Government of Bihar,
Patna to cancel the examination of Auditors like the Junior
Engineers while giving reference to a judgment passed in
CWJC No. 2355 of 2013 by this Hon'ble Court.
It is stated that in the above letter, the EOU apprised
the General Administration Department that the
examinations of Junior Engineer and Auditors were
conducted by the Bihar Staff Selection Commission, Patna
on 30.09.2012 and 07.10.2012 respectively and after
holding the examination, the OMR Answer Sheets for
evaluation purposes were kept in the Strong Room inside
the Commission's premises and based on the information
furnished to the Special Task Force with respect to the
examinations, on 19.10.2012, a raid was carried out and
seventeen persons were nabbed from the place of
occurrence and during investigation from the rented flat of
named accused : Ranjit Kumar Rajak original educational
certificates, admit cards and Carbon copies of OMR Sheets
of various candidates were recovered.
It was also apprised to the General Administration
Department that in the scientific examinations carried out
by Forensic Science Laboratory, Patna it has come that
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Original OMR Answer Sheets were tampered with and that
the same establishes that security of the strong room was
breached, with a view to help candidates illegally which
affects the transparency of the examination process.
In the above report, it was also apprised that the
Chief Secretary as well as the Commission in their separate
counter affidavits filed in CWJC No. 2355 of 2013 have
sought for cancellation of examination process of Junior
Engineers and for holding the examination afresh
whereafter this Hon'ble Court in CWJC No. 2355 of 2013
has been pleased to cancel the entire examination of Junior
Engineer.
The EOU accordingly suggested that since in
connection with EOU P.S. Case No. 23/2012 EOU has
unfolded the illegalities in the examinations of Junior
Engineer and Auditors and the evidences collected with
respect to Junior Engineer examination are more or less
same insofar as it relates to Auditors Examination, it would
be appropriate on the principle of parity also that the
examination of Auditor is also cancelled and fresh
examination may be carried out.
20. That the statement made in Para 12 is responded to in view
of the fact that Shri Amritendu Shekhar Thakur the then
Senior Deputy Superintendent of Police and Shri Anup
Kumar the then Inspector of Police-cum-Investigation
Officer were present and deputed when the OMR Sheets
were examined with respect to the Auditor's examination
and in their report it has come that OMR Sheets of nineteen
candidates were found to be in doubtful category when the
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original OMR Sheets were compared with the carbon
copies thereof.
It is stated that out of the thirteen petitioners, the
Petitioner No. 3 Manoj Kumar (having Roll No. 11723887)
and Petitioner No. 9 Sudhanshu Kumar Singh (having Roll
No. 11422468) were in the list of such 19 candidates whose
OMR Sheets upon comparison with the original vis-à-vis
Carbon Copy varied and anomaly was detected. However,
since no further evidences transpire during investigation,
they were not charge sheeted in this case.
21. That the statement made in Para 19 is responded to in view
of the fact that in EOU P.S. Case No. 23/12 one (1) main
charge sheet followed by seven (7) supplementary charge
sheets were submitted by the Investigating Officer and the
investigation was finally concluded on 26.05.2016 and
these petitioners are not sent up for trial.
22. That the statement made in Para 28 is responded to in view
of the fact that in view of the order passed in CWJC No.
5771 of 2013 the successful 266 candidates of Auditor
Examinations, their OMR Answer Sheets were sent to FSL,
Patna for VSC Examination and report was obtained. In the
said report, OMR Answer Sheets of 12 candidates were
found to be tampered one and accordingly, the Special
Officer of the Commission was apprised about the same
vide Letter No. 5230 dated 12.11.2015.
It is stated that in this case in the eight (8) charge
sheets so filed, fifty nine (59) persons were sent up for trial
both named and not-named and this fact was also apprised
to the Commission as stated above vide Letter dated
20.03.2018."
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12. After conclusion of the hearing when the case was posted for orders, Mr. Vishwanath Prasad Singh, learned senior counsel appearing on behalf of the Economic Offence Unit submitted that he wants to file supplementary counter affidavit and at his request the case was adjourned to 2nd of March, 2021. Thereafter a supplementary counter affidavit has been filed by the Economic Offence Unit on 4.3.2021 highlighting the issue of tampering in OMR sheets. In paragraph 16 thereof the Economic Offence Unit has noted that during the course of investigation names of 12 candidates were found suspicious. However, during the course of investigation no substantive corroborative evidence was found to make them accused in the case and as such no charge sheet was submitted against them. On 5.3.2021 Mr. Vishwanath Prasad Singh, learned senior counsel made submission with responsibility that except suspicion there was no material found against the candidates for tampering the OMR sheets. In other words, Mr. Singh admitted that the decision to return the vacancies is not the outcome of the investigation of the Economic Offence Unit. The submission of Mr. Singh was recorded in the order dated 5.3.2021 which is quoted below for ready reference:-
"(i) These petitioners were suspected and nothing was found against them during the course of investigation involving criminal conspiracy warranting submission of charge-sheet against them.
Patna High Court CWJC No.1332 of 2018 dt.09-03-2021 19/21
(ii) So far as verification of OMR sheets was concerned, that was done by the Officers of the Economic Offence Unit as well as officers of the Staff Selection Commission. It is their decision to return the remaining vacancies to the requisitioning department, instead of taking action for filling up the vacancies, although beyond suspicion nothing was found against them during course of investigation."
13. The advertisement made in 2007 and the objective type examination was held in 2012. The Economic Offence Unit has registered case in 2012 itself when it noticed breaking of seal of strong room where the OMR Sheets were kept by the Commission. In all fairness the Commission should have cancelled the entire results but the Commission on its own decided to publish the result of 266 Candidates during the pendency of the investigation of Economic Offence Case No. 23 of 2012 on the basis of verification of OMR Sheets. There is difference between tempering and discrepancy. Discrepancy cannot be treated as tempering. In a system where Commission conducted the examination to the public post purity of the examination, public faith and confidence in fairness of competitive examination is most important factor which is totally lacking in the conduct of examination in the instant case. However, during the course of argument nobody has questioned the selection of 266 Candidates and they are not even party in the instant case and as such, the Court is not in a position to pass any comment on the recommendation of 266 Candidates who were selected out of the same selection process in which seal of strong room was Patna High Court CWJC No.1332 of 2018 dt.09-03-2021 20/21 found broken at dead night in a clandestine manner by unauthorized persons and in the examination of Junior Engineer certain materials were collected during investigation that tempering was actually done. Publication of result of part and leveling the result of others as suspicious does not appeal to reason. Once this Court directed the Commission to take final decision after the outcome of the investigation, the Commission was required to take final decision on the candidature of those case against whom there was allegation of minor discrepancy or major discrepancy or failed to produce the carbon copy of the OMR Sheet for verification but instead of taking such decision, the Commission of the basis of the recommendation of the Chief Minister decided to return the Vacancy. The action is not found to be a contempt but during scrutiny of the material, the Court finds that the Commission has not acted fairly and without recording a finding based on the result of investigation of the case registered by the Economic Offence Unit. The decision to return vacancy is unsustainable.
14. However, on scrutiny of the materials, no positive direction can be issued in favour of the petitioners for appointment against the post of Auditor. But for authentic decision in the selection of Auditor, the Commission is directed to take appropriate decision about the candidature of the petitioners based on the investigation of the Economic Offence Unit as in the absence of taking any such decision returning the vacancy for requisition afresh is illegal and arbitrary exercise of power. Accordingly, the Patna High Court CWJC No.1332 of 2018 dt.09-03-2021 21/21 decision dated 27.7.2016, returning back the left out vacancies of Auditor for sending fresh requisition is quashed. The matter is remanded back to the Commission for decision afresh about the candidature of these petitioners within a maximum period of three months from the date of receipt/production of a copy of this order.
16. In the result, all the three writ applications are allowed and disposed of in the manner as indicated above.
(Anil Kumar Upadhyay, J) spandey/-
AFR/NAFR NAFR CAV DATE 05.03.2021 Uploading Date 09.03.2021 Transmission Date NA