Meghalaya High Court
Shri.Kam Minthang Hilsian vs The Union Of India And Ors on 13 May, 2016
Author: Sr Sen
Bench: Sr Sen
1
THE HIGH COURT OF MEGHALAYA
AT SHILLONG.
WP(C) No. 237 of 2013
Shri Kam Minthang Hilsiam,
S/o Shri H.N. Thanga,
R/o Nongthymmai, Shillong,
East Khasi Hills District,
Meghalaya. ... Petitioner
-Versus-
1. Union of India through its
Secretary, Ministry of Personal
Public Grievances & Pensions,
Department of Personnel &
Training, Block No. 12, CGO
Complex, Lodhi Road, New
Delhi-110003.
2. Staff Selection Commission
through its Secretary,
Block No. 12, CGO Complex,
Lodhi Road, New Delhi-110003.
3. The Regional Director,
Staff Selection Commission,
NER, Housefed Complex, Dispur,
1st Floor, West End Building, P.O
Assam Sachivalaya, Guwahati-
781006.
4. Food Corporation of India
Represented by its Chairman &
Managing Director,
Khadhya Sadan 16-20,
Barakhamba Lane, New Delhi-
110001. ... Respondents
2
BEFORE
THE HON'BLE MR JUSTICE SR SEN
For the Petitioner : Mr. B. Bhattacharjee, Adv.
For the Respondent s : Mr. V.K. Jindal, Sr. Adv.
Mr. R. Debnath, CGC
& Ms. B. Deb, Adv.
Date of hearing : 13.05.2016
Date of Judgment & Order : 13.05.2016
JUDGMENT AND ORDER (ORAL)
Heard Mr. B. Bhattacharjee, learned counsel for the petitioner as well as Mr. V.K. Jindal, learned Sr. counsel for the CBI, Shillong, Mr. R. Debnath, learned CGC and Ms. B. Deb, learned counsel for the FCI.
2. This instant writ petition is directed against the memorandum dated 18.02.2013 at Annexure-11 Page 77 of the writ petition and memorandum dated 24.05.2013 at Annexure-13 Page 79 of the writ petition.
3. The petitioner's case in a nutshell is that:
"On 29-10-2011 an advertisement was issued in the Employment News/Rojgar Samachar calling for application to fill up numbers of vacancies in the Food Corporation of India which included the post of the Assistant Grade III Technical (Post Code C). The advertisement besides laying down the eligibility criteria, also laid down the scheme of examinations for all the posts including the post of AG III Technical (Post Code C). As per the laid down scheme of examination, a candidate applying for the post of AG III Technical (post Code C) is required to appear in examinations for paper I, paper III and Computer Proficiency Test (CPT). The 3 scheme was arranged in such a manner that only the candidates who clear the paper I examination would be short listed and allowed to sit for paper III examination and similarly, the candidates who clear the paper III examination would be short listed and allowed to appear for Computer Proficiency Test (CPT).
The petitioner being eligible in all respect, applied for the said post of AG III Technical (Post Code C) and offered his candidature through online application which was accepted by the respondent No. 2. The petitioner thereafter, was allotted registration No. 51200805122. Subsequent to the allotment of the said registration, the petitioner received an Attendance Sheet/Admit Card bearing Roll No. 5401000130, Category ST, Centre Code 5401/01 and Ticket No. 5000328 for paper I examination to be held on 05-02-2012. The petitioner appeared in the said examination, result of which was declared on 07-03-2012 wherein the petitioner was shown to have qualified and his name appeared at SR No. 24050. The petitioner was accordingly short listed for paper III examination. Thereafter, the petitioner received the Admission Certificate for paper III examination to be held on 15-04-2012. The petitioner appeared in the said examination, result of which was declared on 18-05-2012 wherein the petitioner was shown to have qualified and his name appeared at SR No. 4022. The petitioner was accordingly short listed for the Computer Proficiency Test (CPT) and thereafter, received Admission Certificate for the same to be held on 23-06-2012. The petitioner appeared in the said CPT to the best of his ability. After the conclusion of all the examinations, a select list/list of the successful candidates was prepared on 18-08-2012 in order of Roll No and the petitioner was declared to have been successful and his name appeared at Sr. No. 995.
The entire examinations for the recruitment/selection for the post of AG III Technical (Post Code C) continued for a period of more than 6 months starting from the date of paper I examination i.e. 05-02-2012 to the date of declaration of the final result on 18-06-2012. The petitioner did all the hard work for becoming successful in the said recruitment test and till the declaration of the final result, no objection or remark of any sort 4 was recorded against him by the selection authority or any body functioning under them.
After declaration of the final result, when the petitioner was waiting anxiously for an offer of appointment, in the month of January, 2013 he came to know that some other candidates who also came out successful in the recruitment test were offered appointment. The said information prompted the petitioner to make an enquiry into the matter and thereafter all of a sudden, to his utter shock and surprise, he received the impugned Memorandum dated 18-02-2013 issued by the respondent No. 3 whereby his candidature for the recruitment process was cancelled without affording any opportunity to show cause on the allegation of copying and indulging in malpractice in the examination. He was further asked to show cause within 15 days, as to why he should not be debarred from future examination held by the respondents No. 2 and 3 for 5 years with immediate effect. The impugned Memorandum dated 18-02-2013 neither contained details of commission of any specific wrong by the petitioner nor was there any disclosure as to how and when the petitioner was found to have indulged in copying. However, since the issuance of the Memorandum was shocking to the petitioner and was an insult to his character and conduct, he filed his show cause on 25-02-2013 denying all the charges and also made a request the respondent No. 3 to furnish him the specific details of the allegation, which was never done by the respondents.
Subsequent to the filing of the show cause by the petitioner, the respondents No. 2 and 3 without furnishing any details of the allegation against the petitioner and without issuing any further show cause with any specific statement of allegation and also without holding any enquiry by affording adequate opportunity to the petitioner, issued the impugned Memorandum dated 24-05-2013 debarring him from appearing in all the future recruitment test for 5 years with immediate effect by alleging that on the basis of post examination analysis, the petitioner was found to have indulged in copying in the examination held on 05-02-2012 (Paper I examination). The impugned Memorandum dated 24-05- 2013 also did not contain any specific statement of allegation as to 5 how and which manner the petitioner was found to have indulged in copying.
The issuance of the Memorandums dated 18-02-2013 and 24-05-2013 are highly arbitrary, illegal, malafide and discriminatory in as much as the same were issued without disclosing any specific allegation and without affording any adequate opportunity to the petitioner and also without holding any enquiry in the matter. The issuance of the impugned Memorandums have not only cast a stigma on the character and conduct of the petitioner lowering his image before the society, but also have jeopardized his future prospect and career in relation to appointment in any public office resulting in serious damage and prejudice to the petitioner. Hence this application praying for quashing and setting aside of the impugned Memorandums dated 18-02-2013 and 24-05-2013".
4. Mr. B. Bhattacharjee, learned counsel for the petitioner assailed that the petitioner Shri Kam Minthang Hilsiam had been falsely declared that, he had indulged in malpracticing/cheating in his examination conducted by the Staff Selection Commission on 05.02.2012 and expelled him without any reason and debarred him for sitting further in any competitive examination.
The learned counsel also submitted before this court that the petitioner being aggrieved by the arbitrary action of the Staff Selection Commission had approached this court for redressal. The detailed submissions of the learned counsel vide order dated 20.04.2015 passed by this court is reproduced herein below:
"20.04.2015 Heard Mr. B. Bhattacharjee, learned counsel for the petitioner Shri Kam Minthang Hilsiam who submits that, the petitioner applied for the post of Assistant Grade III Technical (Post Code C) through Staff Selection Commission. Accordingly, he received an interview letter and sat for the interview, which was held at Shillong on 05.02.2012 (Written Examination for Paper-I) 6 and the result was declared on 07.03.2012 and he has been declared as qualified and thereafter, he was allowed to sit for Paper-III on 15.04.2012 and the result was declared on 18.05.2012 and declared qualified. Thereafter, he was allowed to sit for Computer Proficiency Test (CPT) on 23.06.2012 and the final result was declared on 18.08.2012 and he was found qualified. Thereafter, the petitioner was waiting for his appointment letter, but since there was a delay, he approached the respondent No. 3- Regional Director, Staff Selection Commission at Dispur, Assam enquiring about his appointment letter to which the said respondent No. 3 replied that the matter is under process. But, to his utter surprise after some days, he received a letter dated 18.02.2013 wherein, he was informed that he was found indulging copying in the examination. As a result, his candidature was cancelled with immediate effect and in the said letter, he was also asked to show cause within 15(fifteen) days, as to why he should not be debarred to sit for any examination for a period of 5(five) years. Accordingly, the petitioner also filed a show cause on 25.03.2015 to the respondent No. 3. After receiving the show cause, the respondent No. 3 debarred the petitioner from sitting in any other examination for 5(five) years issued vide Memorandum dated 24.05.2013.
Being aggrieved by the conduct of the respondents, the petitioner approached this court by way of this instant writ petition (WP(C) No. 237 of 2013). On receipt of the writ petition, notice was issued; the respondents entered appearance through Mr. S.C. Shyam, learned Sr. counsel and also filed the counter affidavits which are on record. Mr. K. Sunar, learned counsel for the respondent No. 4 also filed the counter affidavit which is also on record.
Mr. S.C. Shyam, learned Sr. counsel submitted and admitted the fact that the allegation of copying against the petitioner and another candidate namely, Wormila Angkang were sitting for the examination and writing their papers in two different rooms.
When the court put a question: How copying can be done by each other when they were in two different rooms? The answer came that, they may have used some device which is the finding of the expert body called Institute of Banking Personal Selection (In short „IBPS‟). It is also an admitted fact by Mr. S.C. 7 Shyam, learned counsel for the Union of India that no device was recovered from the possession of the two candidates named above.
One officer namely, Mr. Ngachan Zimik, Regional Director, Staff Selection Commission also appeared on summoned by this court and supported the version of Mr. S.C. Shyam, learned counsel for the Union of India.
After hearing the submissions advanced by the learned counsel at Bar and after considering the petition and the affidavits on record, it became really difficult on the part of the court to come to any conclusion because, in my view, the candidature of the petitioner was cancelled on mere presumption. Therefore, I feel that the matter needs to be enquired thoroughly by an independent body as this court is not in a position to find the fact.
Accordingly, the Superintendent of Police, CBI and the Additional Superintendent of Police, CBI summoned are directed to conduct the enquiry to find the actual facts and to submit a report before this court after conducting an enquiry.
The Registry is directed to hand over the photo copy of the petition, rejoinder affidavit, counter affidavit, additional affidavit and all connected papers available in the file and to assist the CBI.
Personal appearance of Mr. Ngachan Zimik, Regional Director, Staff Selection Commission is hereby dispensed with.
List this matter after 6(six) months as the Superintendent of Police, CBI present in the court submits that, he needs at least 6(six) months‟ time".
This court vide the said order dated 20.04.2015 indicated above had ordered for preliminary enquiry into the matter by the CBI, Shillong as a confusion arose when the Staff Selection Commission Officials and their lawyers could not satisfactorily answer to the query put forth by this court as to what is the mode and method used by the petitioner to cheat or malpractices during the said examination; when it was an admitted fact that both the petitioner Shri Kam Minthang Hilsiam bearing Roll No. 5401500130 8 and Ms. Wormila Angkang bearing Roll No. 5401500111 were seated in two different rooms.
In response to the order dated 20.04.2015, the CBI, Shillong started conducting a preliminary enquiry and after completion of the enquiry, the CBI submitted a detailed report alongwith the documents sealed before this court on 09.12.2015.
The learned counsel for the petitioner vehemently submitted that, it is apparent and clear from the report of the CBI that, there was no case of cheating or malpracticing between the two candidates named above. The learned counsel also further contended that the counter affidavit filed by the Staff Selection Commission is nothing, but a blatant lie and totally contradictory with the report submitted by the CBI. He also further pointed out to this court that, against the report submitted by the CBI, no affidavit has been filed by the respondent/Staff Selection Commission though, a copy of the report was furnished to all the counsels vide order dated 14.12.2015.
5. In reply to the submission advanced by Mr. B. Bhattacharjee, learned counsel for the petitioner, Mr. R. Debnath, learned CGC could not throw much light on the case.
6. Ms. B. Deb, learned counsel for the FCI submits that the court may pass the order as found deemed fit and proper.
6. After hearing the submissions advanced by the learned counsel for the parties, two important crux issues evolved before this court namely:
(i) Whether the petitioner was indulging in malpractices during the exam conducted by the Staff Selection Commission on 05.02.2012?9
(ii) Whether the Staff Selection Commission is right and had sufficient reasons and evidence to expel the petitioner and further debarred him to sit for any other examination for the next 5(five) years?
To answer these questions, I have perused the report filed by the CBI, Shillong and the said report is reproduced herein below for ready reference:
"1. Allegation/Background of the Case in brief:-
Shri Kam Minthang Hilsiam, the petitioner in the aforesaid WP(C) No. 237 of 2013, applied for the post of Assistant Grade-III (Post Code C) through Staff Selection Commission in the year 2012. He appeared the written examination for Paper-1 which was held at Shillong on 05.02.2012 and the result was declared on
07.03.2012 and he being qualified was allowed to sit for Paper-III on 15.04.2015. He was also qualified in the result of Paper-III declared on 18.05.2012. Thereafter, he sat for the Computer Proficiency Test (CPT) on 23.06.2012 and the final result was declared on 18.08.2012 and he was qualified. Thereafter, he was waiting for his appointment letter, but since there was a delay, he approached the respondent No.3-Regional Director, SSC, Guwahati at Dispur, Guwahati, Assam enquiring about his appointment letter to which the said respondent No.3 replied that the matter is under process. But, to his utter surprise after some days, he received a letter dated 18.02.2013 wherein, he was informed that he was found indulging copying in the examination. As a result, his candidature was cancelled with immediate effect and in the said letter, he was also asked to show cause within 15 days, as to why he should not be debarred to sit for any examination for a period of 5 years. Accordingly, Shri Kam Minthang Hilsiam also filed a show cause on 25.03.2015 to the respondent No.3. After receiving the show cause, the respondent No.3 debarred Shri Kam Minthang Hilsiam from sitting in any other examination for 5 years issued vide Memorandum dated 24.05.2013. Hence, being aggrieved, Shri Kam Minthang Hilsiam filed the aforesaid WP(C) No. 237 of 2013.
10In the counter affidavit filed by the Regional Director, SSC Guwahati, it was mentioned inter alia that the petitioner Shri Kam Minthang Hilsiam was found indulging in malpractice in Paper-I with another candidate namely Wormila Angkang (Roll No. 5401500111) while undertaking post examination analysis by the Commission to detect malpractices/unfair means, if any, adopted by the candidate.
The Hon‟ble Mr. Justice S.R.Sen after hearing the submissions advanced by the Learned Counsel at Bar and after considering the petition and affidavits on record, observed that "it became really difficult on the part of the Court to come to any conclusion because, in my view, the candidature of the petitioner is cancelled on mere presumption. Therefore, I feel that the matter needs to be enquired thoroughly by an independent body as this Court is not in a position to find the facts". Accordingly, the Hon‟ble Mr. Justice S.R.Sen vide the aforesaid Order dtd.20-04-2015 has directed CBI to conduct enquiry to find out the actual fact and to submit a report before this Court after conducting the enquiry.
2. Action Taken by CBI:- In compliance to the aforesaid Order dtd. 24.04.2015 passed by Hon‟ble Mr. Justice S.R.Sen of Hon‟ble High Court of Meghalaya, a case PESHG2015A0003(PE.3(A)/2015-SHG was registered at CBI, ACB, Shillong Branch on 15.06.2015 after obtaining approval from the competent authority of CBI and conducted thorough enquiry.
3. Result of enquiry:-
3.1 Enquiry revealed that an advertisement for combined recruitment in Food Corporation of India (FCI) for the Post of Asstt.
Grade - III in General, Depot, Technical and Account cadre and Hindi Posts (AG-II and Typist) was published by FCI in the Employment News in its weekly publication of 29th October - 4th November 2011. As per the Notification, the Staff Selection Commission (SSC) will make recruitment to these posts on behalf of Food Corporation of India (FCI). The details like Zone wise and Post wise vacancies, educational qualification of candidates, reservation and relaxation, examination centres, general informations/instructions are mentioned in the said advertisement.
11Candidates were instructed to give their preference for the posts and the Zone. The Zone wise code and Post wise code as mentioned in the advertisement are as under:-
Zone Wise code:-
Name of the Zone Zone Code North Zone C East Zone A South Zone D West Zone B North East Zone E Post wise code:- Name of Post Post Code Asstt. Grade-III (General) A Asstt. Grade-III )(Accounts) B Asstt. Grade-III(Technical) C Asstt. Grade-III (Depot) D 3.2 Selection Process - The selection for Asstt. Grade-III
(General, Depot, Technical and Accounts cadre) was based on the merit of written examination. Paper I, Paper-II and Computer Efficiency Test were applicable to all Post Code A, B & D i.e. Asstt. Grade-III (General, Accounts & Depot). Whereas, in respect of Post Code-C i.e. Asstt. Grade-III (Technical), Paper-I, Paper-III and Computer Efficiency Test were applicable. The examination in Paper-III was of degree level. Whereas Paper-I & II were of Higher Secondary level. There was negative marking of 0.25 marks for each wrong answer in all the Objective Type Multiple Choice Question Papers.
3.3 Paper-I, Paper-II and Paper-III were all Objective Type Multiple Choice Question Papers. Paper-I was for total 200 marks consisting of 04(four) Parts - (a) General Intelligence (50 Questions) of 50 marks, (b) - General Awareness (50 questions) of 50 marks, (c) - Quantitative Aptitude (50 questions) of 50 marks, and (d) - English Language (50 questions) of 50 marks.
Paper-II was for 200 marks in 2(two) parts - (a) Quantitative Aptitude (50 questions) for 100 marks and (b) English Language & 12 comprehension (100 questions) for 100 marks. Whereas, Paper-III meant only for Post Code-C was for 200 marks on Biological Science (200 questions).
3.4 Enquiry revealed that the Staff Selection Commission (SSC) at CGO Complex, New Delhi, is headed by a Chairman and assisted by Members, Directors and Dy. Directors etc. The Staff Selection Commission is having 09 Zones including North Eastern Zone (NER), Guwahati, headed by Regional Directors.
3.5 Enquiry revealed that Shri N.K.Raghupathy (IAS-1975 batch, West Bengal cadre) was the Chairman of Staff Selection Commission during the period 24.04.2009 to 02.03.2013. He retired from service on 02.03.2013. Whereas Dr. D.D. Sharma (Indian Forest Service - 1984 Batch, Jharkhand Cadre) presently, Chairman Jharkhand State Pollution Control Board, Ranchi, was the Member of Staff Selection Commission, New Delhi during the period 25.01.2012 to 06.03.2014. Smt Vandana Sethi (Indian Tele- Communication Services - 1985), presently posted as Director University Grant Commission, New Delhi was the Director during the period May 2010 to July 2014 and Mrs Debolina Thakur (1998 Batch of Indian Audit and Account Services) was the Regional Director, SSC, NER, Guwahati w.e.f: 01.02.2010 to 31.01.2015.
3.6 The candidate Kam Minthang Hilsiam, Roll No. 5401000130, Ticket No. 5000328 (Category - ST), Address: C/o Blentimon Kharkongor, Golden Estate, Nongthymmai, East Khasi Hills, Shillong, Meghalaya, had applied for the Post Code - C,A,D (Technical, General and Depot) with preference of Zone E, A, B, D & C. As mentioned above, for Technical cadre (Post Code-C), a candidate has to appear in paper-I, paper-III and Computer Proficiency Test (CPT) only. He applied the Application for the said examination through online and mentioned his Mobile No. 9774484873 in the column "Mobile No". He hails from Churachandpur District, Manipur and completed his graduation in Zoology in the year 2011 from Shillong College.
133.7 Another candidate namely, Ms Wormila Ankang, Roll No. 5401500111, Ticket No. 5000044, Address - C/o Mandaker, Nongthymmai, Nongshilliang, Shillong, Meghalaya, had applied for post Code A & D with preference of Zone E, C, B, A & D. paper-I was compulsory for all Post codes and after qualifying in Paper-I, Ms Wormila Ankang was to appear in Paper-II since she had applied for post Code- A & D. She had applied the Application through off-line. In her Application, she had not mentioned any Mobile Number and the column "Mobile No" was kept blank but she had mentioned her E-mail ID. She hails from Ukhrul District, Manipur and completed her graduation in Botany in the year 2004 from Shillong College.
3.8 Enquiry revealed that Paper-I of the said examination was held on 05.02.2012 at 2(two) centres in Shillong, namely, (i) Pine Mount H.S.School, Shillong and (ii) Lady Keane, Keating Road, Shillong (only Morning shift between 10 Am to 12 AM).
3.9 Enquiry further revealed that candidate Shri Kam Minthang Hilsiam, Roll No. 5401000130, Ticket No. 5000328 appeared in Paper-I exam on 05.02.2012 between 10 AM to 12 AM held at Pine Mount H.S.School, Laban, Shillong and he was sitting in Room No. XI Arts (I). In this room, seats for 24 candidates were allotted from Ticket No. 5000313 to 5000340. However, out of these 24 candidates, only 09 candidates were present while 15 candidates were absent. Shri. Kam Minthang Hilsiam was allotted 4th Seat of Row No. 03.
3.10 Shri. M.S Kharmalki, Junior Engineer, O/o Dy. Commissioner, Shillong was the Centre Supervisor of Pine Mount H. S. School, Shillong. Whereas, Shri. G. Marbaniang, R/o: C/o W. Marbaniang, Lawmali Pyllun, Shillong - 793001 and L. Shylla were the Invigilators in this room.
3.11 The Instruction of SSC was displayed at the main Gate in the verandah as well as in the Notice Board of the School regarding the guidelines of SSC to be followed by every candidates. The main instructions were:-
14> No Luggage, hand bags, Mobile phone, Gadgets or any electronic items were permitted to take inside the examination hall.
> No candidate will discuss or talk with any other candidate during the examination period.
> Any candidate having any problem, he / she can
talk to the room Invigilator only.
3.12 Enquiry further revealed that the candidate Wormila
Ankang Roll No. 5401500111, Ticket No. 5000044 also appeared at Pine Mount H. S. School, Laban, Shillong on 05.02.2012 between 10 AM to 12 AM and she was sitting in room No. Hall No. 1B. In this Room, seats of 24 candidates from Ticket No. 5000025 to 5000048 were allotted. However, out of 24 candidates only 12 candidates were present and rest were absent. Ms Wormila Ankang was allotted 2nd seat in row No. 4. The Invigilators in this room were namely Mrs Christine Kharwanlang R/o : C/O J.J.M. Dkhar, Laban, Red Cross, Shillong and G.V. Ropmay.
3.13 Enquiry revealed that the aforesaid Room No. XI Arts (1) and Room No. Hall No. 1B are in separate buildings and in a distance of about 20-25 meters.
3.14 Enquiry further revealed that there was no complaint from Invigilators either from aforesaid Room No. X1 Arts (1) and from Hall No. 1B regarding use of any unfair means/malpractices through mobile phone or any electronic gadgets by any candidates including Shri Kam Minthang Hilsiam and Ms Wormila Angkang. All the students kept their bags and mobile phones outside the examination halls as directed. No mobile phone / electronic gadgets/hidden device were recovered from the possession of any candidate including Shri Kam Minthang Hilsiam and Ms Wormila Angkang at the examination Centre. This has been proved from the statements of the aforesaid Centre Supervisor and Invigilators.
153.15 Enquiry revealed that after completion of the examination, the Answer sheets (OMR Sheets) were collected from all the candidates by the Invigilators of the rooms and the same were sent to the SSC, HQ, New Delhi by the Centre Supervisor on the same day.
3.16 Enquiry revealed that Ms Wormila Angkang had given her preference for Post Code -A & D (General & Depot) and the qualifying marks in Paper-1 for ST category for these Post Code was fixed at 84 marks out of 200 marks. However, Ms. Wormila Ankang has secured only 83 marks out of 200 marks in Paper-1 and hence she could not qualify for Paper - II.
3.17 Whereas, for Post Code-C (Tech) the qualifying marks in paper - 1 for ST Category was fixed at 61.50 marks. Shri Kam Minthang Hilsiam (Category-ST) had given preference for Post Code- A, C & D (General, Technical, & Depot). He secured 82.50 marks in paper -1 out of 200 marks and hence he was qualified for Paper-III.
3.18 The Marks secure in Paper - 1 by both the candidates after negative marking are given below which show that both candidates has secured different marks in all the 04 parts of Paper-1.
Name of Roll No. Part-A Part-B Part-C Part-D Total the candidate Shri Kam 5401000130 33.50 13.25 8.75 27.00 82.50 Minthang Hilsiam Ms. 5401500111 23.25 17.50 12.50 29.75 83.00 Wormila Ankang 3.19 The written exam of Paper-III was held on 15.04.2012 and Shri Kam Minthang Hilsiam secured 71 marks out of 200 marks and was qualified on declaration of the result on 16 18.05.2012. Thereafter, Shri Kam Minthang Hilsiam appeared in the Computer Proficiency Test (CPT) held on 23.06.2012 and he secured 060 marks and here also he was qualified. Accordingly, in the final result of the combined examination for the posts of Asstt. Grade-111 (General/Technical/Accounts/Depot) cadre, declared by SCC on 18.08.2012, Shri Kam Minthang Hilsiam was declared as Selected Candidate for Post Code-C (Technical) for West Zone (Zone Code B) under ST Category at Sl. No. 995. In the said final result declared by SSC on 18.08.2012, for Zone B (West Zone), against vacancy of 74 in respect of ST (Category-2), 67 qualified candidates were recommended for appointment including Shri Kam Minthang Hilsiam whose name is figuring at Sl. No. 19 in the said list of 67 ST candidates. This has been proved by Smt. Freeda Rose Tariang, Dy. Director, SSC, NER, Guwahati.
3.20 Enquiry revealed that while declaring the aforesaid final selected result by SSC, it was mentioned that the result is purely provisional and Commission undertakes Post examination Analysis and candidature of provisionally selected candidates is liable to be cancelled if there are, prima-facie, found to be involved in unfair means based on such Analysis.
3.21 Enquiry revealed that the Staff Selection Commission undertook the Post Examination Analysis for some of the written examination conducted by the commission with the help of Institute of Banking Personnel Selection (IBPS), Mumbai. The analysis was started on experimental basis with the ASI in CISF Examination, 2010 and later the Post Examination Analysis was done by IBPS on gratis basis for other examinations namely Combined Graduate Level Examination, 2011, SI in CAPF and IO in NCB Examination,2011, JE Examination, 2012, etc. This Post Examination Analysis of IBPS had been carried out during the tenure of Shri. N.K. Raghupathy as then Chairman of SSC without the approval of DoPT. It is to mention that the Commission had submitted a proposal to DoPT in the year 2012 to enter into an MoU with IBPS and in this regard, many correspondences had been made between SSC and DoPT. However, the said Post Examination Analysis of IBPS was kept in abeyance by SSC after 17 the retirement of the chairman Shri. N.K. Raghupathy (on 02.03.2013) since there was no positive response from DoPT. SSC has paid some amount to IBPS, Mumbai for Post Examination Analysis of various examinations but no such payment had been made for the said FCI, 2012 examination.
3.22 Enquiry revealed that the IBPS is an autonomous body registered as a society under the Societies Registration Act and also as Public Trust under the Bombay Public Trust Act of 1950 and engaged in selection of personnel for banking and non- banking sectors and also carried out research in the area of Human Resource Management, evaluation of competencies and conducting seminars, workshops and training programmes including post examination analysis in respect of the examinations conducted by IBPS.
3.23 Enquiry revealed that as per the standard procedures followed by IBPS in Post Examination Analysis, if two candidates have marked more than 12 identical wrong wrong answers (IWW) and the mismatch are less than 05 answers out of 50 questions in objective type questions, it is indicative that the candidates had used unfair means in the examination.
3.24 During the relevant period, Dr. M.L. Dutt, Professor & Head (Operations Division) was the analysis expert of IBPS who carried out the Post Examination Analysis.
3.25 Accordingly, a Post Examination Analysis of aforesaid FCI examination was also conducted by the Institute of Banking Personnel Selection (IBPS), Mumbai. In this regard, enquiry revealed that in June 2012 as per direction of Shri N.K. Raghupathy, the then Chairman, SSC, Smti Vandana Sethi, Director SSC visited IBPS, Mumbai and handed over the datas of FCI-2012 exam in soft copy in the form of C.D to Prof Dr. M.L. Dutt who was heading the Division of Research and Development of IBPS.
183.26 Enquiry revealed that the then Chairman of SSC Shri N.K Raghupathy had already discussed with the then Director of IBPS Mr. M. Balachandran (Retired CMD of Bank of India) regarding the study of Systems and Procedures adopted by IBPS to identify cases of use of unfair means in large volume of examinations. Accordingly, the then Director IBPS had directed Prof. M.L. Dutt to undertake the experimental study and examine the data of SSC for response analysis and study of use of unfair means with the help of software used by IBPS for its own examination. The Software which was desired to be run was for the purpose of research to understand, whether this software can identify (identical wrong response) in pairs of candidates.
3.27 Enquiry further revealed on receipt of the datas of the said FCI Examination from Smt Vandana Sethi, Director, SSC, the EDP Section of IBPS, Mumbai analyzed the said data within 15-20 days and sent the same data to Prof. M.L. Dutt on his E-mail I-D. After that he studied the data and forwarded the same to Mrs. Vandana Sethi on 12.07.2012.
3.28 In the Post Examination Analysis Report dtd. 12.07.2012 a comparative chart of answers given by the both candidates Shri Kam Minthang Hilsiam and Ms. Wormila Angkang in Paper-1, have been mentioned. Score-1 is for Shri Kam Minthang Hilsiam and score-2 is for Ms Wormila Ankang. As mentioned above, Paper-1 is for total 200 marks in objective type multiple choice questions consisting of 4 Parts of 50 marks each i.e. Part-(a) for General Intelligence, Part-(b) for General Awareness, Part-(c) for Quantitative Aptitude and Part-(d) for English Language. Answer to each question has four options i.e. A, B, C & D. In the Post Analysis Report, these Parts (a), (b), (c) and (d) were categorized as T-1, T-2, T-3 and T-4 respectively. The name of the Examination is also given in code i.e. Exam-4 since SSC had not furnished the name of the Examination. The generated detains analysis Report of IBPS in respect of these two candidates are mentioned below:-
19Test Score Score2 Total RR BB EB INT WW Mis
Match Match Match Match Match Match Match
T1 35 25 30 21 08 0 08 01 20
T2 16 24 16 14 0 0 0 02 34
T3 17 21 47 17 0 0 0 30 04
T4 30 33 33 25 04 0 04 04 17
3.29 It is seen from the said analysis report dtd.
12.07.2012 that in Part (a) of Paper-1 i.e. in T-1, Kam Minthang Hilsiam had given the right answer of 35 questions while Wormila Ankang had given 25 right answers of questions. Total Match of both the candidates are 30, out of which 21 are identical right answer, 08 identical blank questions (8 answers were not given by both candidate), 01 identical Wrong Wrong answer and 20 answers are mismatch.
3.30 In Part (b) i.e. T-2 of Paper-1, Kam Minthang Hilsiam had given the right answer of 16 questions while Wormila Ankang had given right answers of 24 questions. Total Match of both the candidates are 16, out of which 14 are identical right answer, 0 identical blank questions (no blank questions are matching), 02 identical Wrong Wrong answers and 34 answers are not mismatch.
3.31 In Part (c) i.e. T-3 of Paper-1, Kam Minthang Hilsiam had given the right answer of 17 questions while Wormila Ankang had given right answers of 21 questions. Total Match of both the candidates are 47, out of which 17 are identical right right answer, 0 identical blank questions (no blank questions are matching), 30 identical wrong wrong answers and 4 answers are mismatching. The questions in which both these candidates had marked 30 identical wrong wrong answers are given i.e. 101, 103, 104, 107, 109, 112, 113, 115, 117, 120, 121, 122, 123, 125, 126, 127, 129, 130, 131, 132, 133, 134, 135, 136, 138, 140, 141, 142, 144 & 145. As seen from the above chart, 04 answers are mentioned as mismatch which is not correct and the mismatch 20 should be only 03. In this regard, Prof Dr. M.L. Dutt stated that it was an arithmetical mistake on their part.
3.32 In Part (d) i.e. T-4 of Paper-1, Kam Minthang Hilsiam had given the right answer of 30 questions while Wormila Ankang had given answers of 33 questions. Total match of both the candidates are 33, out of which 25 are identical right answers, 04 identical blank questions (04 blank questions are matching), 04 identical wrong answers and 17 answers are mismatch.
3.33 Enquiry revealed that in the aforesaid FCI examination conducted by SSC, there were four Questions Test Forms bearing numbers (1) 222 MN 2, (2) 322 MN 3, (3) 433 MN 4 and (4) 333 MN 1. All Question numbers and Answer Keys of one Test Form number are the same but are shuffled in other Test Forms e.g. in Paper-1, Question No. 101 in Test Form number 333 MN 1 is shuffled to Question No. 105 in Test Form number 222 MN 2 and so also in other Test Forms. Both the candidates Shri Kam Minthang Hilsiam and Ms Wormila Angkang though seated in two different rooms were given the same Test Form number 333 MN 1. The aforesaid Analysis Report dtd. 12.07.2012 of IBPS in respect of Shri Kam Minthang Hilsiam and Ms. Wormila Angkang was related to Test Form number 333 MN 1.
3.34 Enquiry revealed that the aforesaid Analysis Report dtd. 12.07.2012 was sent to Smt. Vandana Sethi, the then Director, SSC by Prof. Dr. M.L. Dutt vide email dtd. 12.07.2012, which are reproduced as under:-
"Please find attached the copying cases report with quantile analysis for exam 4. My prima facie impression is that tests are easy, some items in the tests are double fault (there seems to be two correct answers in some items, thus the criteria of IWW more than 12 has to be increase proportionate to double fault items). To understand the plausible cases further kindly send the booklets of four forms of morning as well as evening session".
3.35 Enquiry further revealed that on receipt of the Test Forms (Question Papers) from SSC and shuffling chart, Prof Dr. 21 M.L. Dutt again carried out the Analysis comparing different Test Forms. In the Report dtd. 23.07.2012, the Analysis was carried out on T3 (Quantitative Aptitude) of Paper-1 in respect of Shri Kam Minthang Hilsiam and Ms. Wormila Ankang related to Test Form number 222 MN 2 by comparing with the shuffled questions with Test Form number 333 MN 1. In this Report dtd. 23.07.2012 also, both the candidates Shri Kam Minthang Hilsiam and Ms Wormila Angkang had total 47 matches out of 50 questions in T3 (Quantitative Aptitude). Out of these 47 matches, both had 17 identical Right Right answers (RR), 30 identical Wrong Wrong answers and 3 mismatch.
3.36 This Analysis Report dtd. 23.07.2012 was again sent to Smt. Vandana Sethi, the then Director, SSC by Prof. Dr. M.L. Dutt vide email dtd. 23.07.2012, which are again reproduced below:-
"I am forwarding the analysis files studied for the use of unfair means. I have worked out the possibility of different subset where the unfair means are likely to happen. The analysis shows that the phenomena has disappeared. Wherever there is IWW flag, you will notice that many items have popular answers which are other than the key answers, thus even those cases cannot be considered as suspected and or likely cases. I do not know the name of the centre from where the data has been sent, but this analysis shows that the phenomena has been arrested following this methodology. One observation, this test is easy or the candidate population is of higher ability. Kindly examine the data bases on my observations given above".
3.37 On examination, Prof. Dr. M.L. Dutt stated that IBPS carried out Post Examination Analysis of Exam-4 (read FCI-2012) only on experimental basis which is not enough to take a final decision. He stated that if a pair of candidates have 12 or more identical wrong wrong answers and less than 5 mismatch out of 50 questions in objective type multiple choice questions, there are chances of unfair means used in the examination. He stated that this 12 identical wrong wrong answer is based on theory of Probability and needs further corroboration by other evidences 22 such as common source used by the candidates, communication marking, rough work done in the question paper, any indication of eraser on the answer sheets, sitting chart, report of the Invigilators and Centre Incharge and such other evidences.
3.38 On being asked, Prof. Dr. M.L. Dutt stated that even if two candidates had 12 or more identical wrong wrong answers, if the answers happened to be a pattern marking by the candidates in the actual Answer Sheets, then it is not a case of copying. On being shown to him the original answer sheets (OMR Sheets), and sitting chart of both the candidates Shri Kam Minthang Hilsiam and Ms Wormila Angkang, he stated that since both the candidates were sitting in two different rooms, it was not possible that they will copy from each other. Moreover, on the basis of his knowledge and experience in the field of Selection Testing and handling large volume examinations, he stated that both these candidates Shri Kam Minthang Hilsiam and Ms Wormila Angkang had resorted to pattern marking by opting Option-B of the questions which can be inferred to the best of his knowledge and experience that both the candidates seem to have no knowledge on the subject and hence they might had resorted to such pattern marking, which is not a copying case.
3.39 In this regard, Prof. Dr. M.L. Dutt has also informed in writing vide his letter dtd. 27.10.2015 that "in the IBPS Report dtd. 12.07.2012 as well as 23.07.2012, IBPS has not mentioned anywhere that it is a confirmed copying case. According to IBPS it is not a case of Use of Unfair Means in respect of the two candidates namely, Shri Kam Minthang and Ms Wormila Angkang bearing Roll Nos. 5401000130 & 5401500111 respectively. IBPS has communicated this to the concerned Official of SSC vide e- mail dated 12.07.2012 and 23.07.2012. In the case of these two candidates the IWW happens to be higher; it is only indicative of Use of Unfair Means. Based on IBPS laid down procedure, the IWW of this pair of candidates had to be corroborated with other evidences and since IBPS did not have any original document of the candidates, IBPS had no mechanism to corroborate this indication. Thus, SSC was asked to examine it at their end. The 23 question numbers printed on 23.07.2012 Report relates to Test Form No. 222 MN 2 Part III A".
3.40 Enquiry revealed that on receipt of the Post Examination Analysis Report generated by IBPS Mumbai for the aforesaid FCI examination, Smt Vandana Sethi, the then Director, SSC, HQ, New Delhi put up a note on 25.09.2012 in File No. 50/Dir(VS)/IBPS/FCI-2012 mentioning inter alia that as per the IBPS Report total 576 candidates were identified where there was a possibility of malpractices by the candidates. Out of these 576 candidates, 137 candidates were qualified/selected candidates and mentioned that the documents of these 576 candidates were required to be examine to take further action in the matter. She marked the File to the Member (DS). Dr. D.D. Sharma who had put his signature without giving any comments and marked the file on 26.09.2012 to the Chairman Shri N.K. Raghupathy. On 27.09.2012, the then Chairman Shri N.K. Raghupathy noted that "there are prima facie grounds to believe that the candidates had indulged in malpractices. The evidence against them, as brought out by the analysis carried out by the IBPS, is very strong" and he directed to furnish the list of these qualified 137 candidates to FCI with a request to withhold offer of appointment pending final decision by the Commission. He further directed to call the dossiers of all these 576 candidates from the concerned Regional Offices of SSC for further scrutiny.
3.41 Accordingly, letter No. 50/Dir/CVO/IBPS/FCI/2012 dtd. 28.09.2012 was sent by Smt Vandana Sethi, the then Director, SSC to the Executive Director (Personnel), FCI, 16-29 Barakhamba Road, New Delhi not to issue the offer of appointment to these 137 candidates till final decision was taken by the Commission. Further, separate letters were also issued to the concerned Regional Directors of SSC to supply the dossiers of all the 137 candidates mentioned in the list.
3.42 On receipt of the OMR Sheets, Attendance sheets, seating plan of the candidates and copies of Application Forms in respect of the aforesaid 576 candidates, scrutiny of these 24 documents was carried out in SSC, H.Q, New Delhi. In this regard, on 15.01.2013, Smt Vandan Sethi, the then Director SSC, HQ, New Delhi put up the detailed examination on the basis of the aforesaid documents and the IBPS report pertaining to NWR, NER, KKR and SR in File No. 50/CVO/IBPS/FCI 2012. In respect of Shri Kam Minthang Hilsiam and Ms Wormila Angkang, Smt Vanda Sethi, Director had noted the following:-
> Candidates appeared from same venue but as per seating plan they were seated in different rooms.
> In T3 with Total match-47, RR match-17, BB match-0, WW match-30, Mismatch-4.
> From the OMR sheet, it appears that "the case has been wrongly flagged due to pattern marking" (meaning not a case of copying as stated by Smt Vandana Sethi). Both the candidates have marked option C for most of the questions in T3 (it should be option-B, which was a typing mistake as stated by Smt Vandana Sethi in her examination).
3.43 The file was marked to the then Member Dr. D.D. Sharma on 15.01.2013 who without checking personally the records of any candidates had mentioned in respect of NER Paper-1 that "The Candidates from Sl. No. 1 to 4 in the table given at page 3/C also seem to have been indulged in malpractices".
3.44 It is to mention that Sl. No. 3 and 4 in respect of NER Paper-1 are Shri Kam Minthang Hilsiam and Ms Wormila Ankang respectively. The file was then marked to then Chairman, Shri N.K. Raghupathy, on 17.01.2013.
3.45 The then Chairman Shri N.K. Raghupathy took the final decision on 17.01.2013 mentioning that "the numbers of matches is large and, therefore, pattern marking cannot be the reason" and directed to advise the concerned Regional Office for cancellation of the candidatures including Shri Kam Minthang Hilsiam and Ms Wormila Ankang and also to initiate process of debarment of the candidates including said Shri Kam Minthang 25 Hilsiam and Ms Wormila Ankang for a period of 5 years, following due procedure. In addition to the above decision, he also directed to file a complaint to CBI against the candidates i.e. Shri Kam Minthang Hilsiam and Ms Wormila Ankang along with the other 02 candidates in respect of North Eastern Region (NER) namely, Vandita Kalita and, Kamal Jyoti Borah.
3.46 Enquiry revealed that on the basis of the scrutiny of the documents and the IBPS Reports and aforesaid decision taken by the then Chairman Shri N.K.Raghupathy, 62 candidates out of 137 qualified/selected candidates were cleared from copying angle and the rest 75 candidates including said Shri Kam Milthang Hilsiam were not cleared from the copying angle.
3.47 Accordingly, the Executive Director (Personnel), FCI, New Delhi was informed by Smt Vandana Sethi, Director, SSC requesting to take normal course of action regarding appointment for these 62 cleared candidates. It was informed that the remaining 75 candidates have been found to have indulged in copying based on post examination analysis after detailed scrutiny and the Commission has decided to initiate action for cancellation of candidature and debarment for these candidates.
3.48 Another letter dtd. 30.01.2013 was also sent to the Regional Director, SSC, Guwahati by Smt Vandana Sethi, Director mentioning that post examination analysis has conclusively proved that the following candidates namely, (1) Anjana Kumar, (2) Bandita kalita, (3) Kam Minthang Hilsiam and (4) Wormila Angkang had indulged in copying which is treated as malpractice by the Commission and advised to cancel the candidature of the candidates and also initiate process of debarment for a period of five years, following due procedure.
3.49 Accordingly, the candidature of Shri Kam Minthang Hilsiam was cancelled by the Regional Director, SSC, Guwahati vide Memo vide No.F.No.SSCG-A-45011/01/2011/Exam/413 dtd. 18.02.2013 and also directed to show cause as to why he should not be debarred from any examination/recruitment held by the 26 Commission for a period of five years within 15 days from the date of issue of the Memorandum. Likewise, the candidature of Ms. Wormila Angkang was also cancelled by the Regional Director, SSC, Guwahati vide Memo vide No. F.No.SSCG-A-
45011/01/2011/Exam/417 dtd. 18.02.2013 with the same show cause.
3.50 Enquiry revealed that both the candidates Shri Kam Minthang Hilsiam and Ms Wormila Angkang submitted their show cause vehemently denying the alleged copying in the said examination. Inspite of their submission of the show cause, the candidate Shri Kam Minthang Hilsiam was debarred for 5 years from all the examinations or selection conducted by the Commission with immediate effect vide Memo No. F.No. SSCG-A- 45011/01/2011/Exam/1589-1602 dtd. 24.05.2013 issued by the Regional Director, SSC, Guwahati. Like-wise, the candidate Ms. Wormila Angkang was also debarred for 5 years from all the examination or selection conducted by the Commission with immediate effect vide Memo No. F.No. SSCG-A-
45011/01/2011/Exam/1603-1616 dtd. 24.05.2013.
3.51 During enquiry of the case Shri N.K.Raghupathy, IAS, the then Chairman SSC (since retired) was examined and on being asked that both the candidates Shri Kam Minthang Hilsiam and Ms. Wormila Angkang were seated in two different rooms, no complaint was made either by the invigilators or by the Centre Supervisor of the Examination Centre, no mobile phone/Electronic device or any electronic gadgets were recovered from the possession of both the candidates, how it was possible that both the candidates had made copy with each other, he replied that in the present age of advance technology, anything could be happened. He stated that they might have used Hidden Devices/Blue Tooth etc and the feedback might be given by a common source. But he could explain what type of hidden devices/blue tooth could be used nor had he obtained any expert opinion in this regard. He had relied on the Analysis report dtd. 12.03.2012 of IBPS which was not sufficient for taking any conclusive decision.
273.52 On being shown the OMR Sheet of both the candidates and asked about wrong option-C as mentioned by Mrs. Vandana Sethi, he stated that it was a typing mistake, which should be option-B. He further stated that the remarks of IBPS indicates that if a pair of candidate have opted more than 12 identical wrong answers in a set of 50 questions, there is high chance of unfair means by the candidates. Both candidates can mark identical right answer up to any level but if both candidates marks identical wrong answers of more than 12 questions in a set of 50 marks, it is understood that they have used unfair means like copying from each other, use of electronic device/gadgets and feedback given by the common source.
3.53 On further asked, if both the candidate received feedback from common source, they should have given the correct answer in all parts of the question paper i.e. T-1, T-2 & T-4 and not only in T-3, he stated that the common source might be not knowing the correct answers in other parts of the question paper or hidden electronic device might have been connected with common source only at the time of answers given in part T-3. On being questioned why both candidates have not given all right answers in Part T-3 in case they were getting feedback from common source, he stated that the common source also might be not knowing the correct answers of all the questions in part T-3. The explanation given by Sh. N.K.Raghupathy is not satisfactory.
3.54 Discussion of available evidences on the alleged copying:-
Enquiry of the case has established beyond reasonable doubt that the candidates namely Shri Kam Minthang Hilsiam and Ms Wormila Angkang had not indulged in malpractice with each other or with any outside common source while appearing in Paper-I in the aforesaid FCI Examination, conducted by SSC. In this regard, the following are the available evidences:-
281. The candidate Shri Kam Minthang Hilsiam was sitting in Rood No. XI Arts (I) while appearing Paper-I at Pine Mount School, Shillong. Whereas the other candidate namely Ms. Wormila Angkang was sitting in Room Hall No. IB which is in separate building and in a distance of about 20-25 meters from Room No. IX Arts (I). Hence, practically these two candidates cannot copy with each other physically except by means of using some wireless communication devices.
2. To establish the possible use of unfair means by these two candidates by means of some wireless communication through hidden devices/blue tooth etc. an opinion was sought from NIT, Shillong as to "what type of wireless communication system/electronic gadgets (which can be hidden) can be used by two candidates appearing competitive examination and sitting in two separate rooms in a distance of about 20 meters, for the purpose of unfair means/copying each other or with some outside common source" and requested to offer considered opinion.
Accordingly, Dr. A. Dandapat, Associate Professor & HOD, Electronic Communication Engineering of NIT, Shillong vide his Letter No. NITM/Acad/ECE/2015/271 dtd. 04.11.2015 has given his considered opinion that the following devices can be used to communicate in short distance.
> Mobile Phone: Mobile phone along with some active network can be used to communicate through ear phone which can be hidden, in any given range. Possibility of identifying the gadget by invigilator is high due to speech conversation among the two candidates.
> Mobile/Smart Phone with Bluetooth: Mobile phone with Bluetooth facility can be used for short distance communication without active mobile network. Typical operating range is within 10 meter. Possibility of identifying this kind of gadget by invigilator is high due to texting in mobile.
> Smart Phone with Wi-Fi Capability: Smart phones with Wi- Fi capability can be used to create adhoc network among them and if Wi-Fi is available in the building and accessible in the room. Also, if it is password protected then candidates must know the 29 password. During 2012, smart phones size was large enough to be notices, so the possibility of identifying by invigilator is high. > Other Bluetooth devices: These types of Bluetooth devices may be of different sizes and shapes, like programmable calculator, wearable device, earpieces etc. can be used. The typical operating range is within 10 meters.
3. From the above considered opinion given by NIT, Shillong, the possibility of using (i) mobile/smart phones with Bluetooth, (ii) smart phones with Wi Fi capability and (iii) other Bluetooth devices, by these two candidates for the purpose of unfair means, are ruled out since the operating range of these devices are only 10 meters and that there was no Wi Fi connection in the said Centre i.e. Pine Mount School, Shillong in the year 2012 as informed by Mrs Aiom K. Diengdoh, Principal vide her letter No. PNGS/EDN/2074 dtd. 09.11.2015. Whereas, as mentioned above, these two candidates were sitting in two different rooms/buildings in a distance of 20-25 meters. Hence the possibility of using the devices by these two candidates for the purpose of unfair means is mobile phone only. However, using mobile phones by these two candidates is also totally ruled out, since the Call Details Report (CDR) in respect of Mobile No. 9774484873 of Shri Kam Minthang Hilsiam provided by Shri Mohan Thapa, Nodal Officer of Vodafone clearly shows that there was no incoming or outgoing calls or any SMS during the duration of the examination from 10.00AM to 12 Noon on the date of examination (05.02.2012). Moreover, Ms. Wormila Angkang was not having any mobile phone during that time as stated in her examination which is substantiated by the fact of her not mentioning mobile number except her e-mail id in the Application Form while applying for the said post.
4. The invigilator namely Shri Gary Marbaniang of Room No. XI Arts (I) in respect of the candidate Shri Kam Minthang Hilsiam, on examination stated that all the candidates kept their bags/mobile phones etc. outside the examination hall as directed as per the instructions/guidelines of SSC and there was no use of any unfair means by any candidate during the said examination and further, there was no recovery of any mobile phones/electronic 30 devices etc. from the possession of any candidate during the said examination. Likewise, the invigilator namely Smt. Christine Kharwaniang of Room Hall No. IB in respect of the candidate Ms. Wormila Angkang, also stated the same as stated by the aforesaid two invigilators of Room No. XI Arts (I). These statements of the invigilators are further corroborated by the statement of the Centre Supervisor namely Shri Mathew Steffer Kharmalki.
5. On examination of another candidate namely Ms. Swastika Bhattacharjee whose seat was just behind Shri Kam Minthang Hilsiam in Room No. XI Arts (I), also flatly denied regarding using of any unfair means by any candidate in the said room during the said examination.
6. It is also a fact that Shri Kam Minthang Hilsiam hails from Churachandpur District of Manipur and completed his graduation in Zoology from Shillong College in the year 2011. Whereas Ms Wormila Angkang hails from Ukhrul District of Manipur and completed her graduation in Botany from Shillong College in the year 2004. Since both of them hails from different district and belonging to different tribes of Manipur and completing their graduation in different years (2004 and 2011), both of them do not know each other, as also stated by them in their examination.
6. Both the candidates Shri Kam Minthang Hilsiam and Ms Wormila Angkang being tribal and without good background of mathematics, are weak in mathematics and hence they had resorted to pattern marking by choosing option-B in respect of quantitative aptitude portion i.e. Part-C of Paper-I which was purely a co-incidence. In this regard, Shri Kam Minthang Hilsiam stated that he had marked option-B in respect of the said quantitative aptitude/mathematics portion since he was not having full confident in mathematics and as guided by his friend and relatives to choose only one option instead of choosing different options in respect of subject in which he was not sure of the answer. Likewise Ms. Wormila Angkang also stated that since she was weak in mathematics, she had also marked option-B as 31 advised by her friends/seniors. It may be mentioned here that Shri Kam Minthang Hilsiam had marked all option-B in respect of the 50 questions of the quantitative aptitude portion. Whereas, out of 50 questions in respect of said quantitative aptitude Ms Wormila Angkang had marked 45 questions as option-B.
8. As per the Answer Sheet (OMR Sheets of both the candidates, it is also notices that Ms Wormila Angkang had marked 40 answers as option-B out of 50 questions in respect of General Awareness i.e. Part-B of Paper-I. Whereas Shri Kam Minthang Hilsiam had marked only 08 answers as option-B out of 50 questions in respect of said General Awareness portion. This also clearly indicate that Ms. Wormila Angkang had resorted to pattern marking in General Awareness also which is an indication that she and Shri Kam Minthang Hilsiam had not indulged in unfair means with each other or with outside common source and further substantiated co-incidence of their marking option-B in Part-C (Quantitative Aptitude) of Paper-I. FINDINGS:- From the above facts and circumstances, the enquiry of the case has arrived at the following conclusive findings:-
(1) That the candidates namely Shri Kam Minthang Hilsiam and Ms Wormila Angkang had not indulged in any malpractices/unfair means with each others or with any outside common source while appearing Paper-I in the FCI Examination conducted by SSC at Pine Mount School, Shillong on 05.02.2012.
(2) It is evident from the statement as well as letter dtd.
27.10.2015 of Prof. Dr. M.L.Dutt that in IBPS Report dtd. 12.07.2012 and dtd. 23.07.2012, IBPS has not mentioned anywhere that it is a confirmed copying case. As per the standard procedures followed by IBPS in Post Examination Analysis, if two candidates have marked more than 12 identical wrong wrong answers (IWW) and the mismatch are less than 05 answers out of 50 questions in objective type questions, it is indicative that the candidates had used unfair means in the examination. In the case of these two candidates the IWW happens to be higher, it is only 32 indicative of Use of Unfair Means. Based on IBPS laid down procedure, the IWW of this pair of candidates had to be corroborated with other evidences. Since IBPS did not have any original document of the candidates, IBPS had no mechanism to corroborate this indication. Thus, SSC was asked to examine it at their end.
(3) On the basis of the scrutiny of the OMR Sheets, Attendance Sheets, seating plan and copies of applications forms of the selected candidates and the IBPS reports, detailed examination of cases pertaining to NWR, NER, KKR and SR was submitted on 15.01.2013 by Smt Vandana Sethi, Director in File No. 50/CVO/IBPS/FCI2012. In respect of these two candidates, Smt Vandana Sethi, Director had mentioned that both the candidates appeared from same venue but as per seating plan they were seated in different rooms and "from the OMR Sheet, it appears that the case has been wrongly flagged due to pattern marking (meaning not a case of copying as stated by her)". Both of the candidates have marked option-C (typing mistake, it should be Option-B as clarified by her) for most of the questions in T3.
(4) While putting up the File to the Chariman, SSC on 17.01.2015, Dr. D.D.Sharma, Member, SSC, has also mentioned that the candidates also seem to have been indulged in malpractices.
(5) Inspite of the above facts, Shri N.K.Raghupathy, the then Chairman of SSC had taken a fallacious decision on 17.01.2013 mentioning that "the number of matches is large and, therefore, pattern marking cannot be the reason" and directed to advise the concerned Regional office to cancel the candidatures including Shri Kam Minthang Hilsiam and Ms Wormila Angkang and also to initiate process of debarment for a period of 5 years, following due procedure.
(6) Accordingly, the candidature of Shri Kam Minthang Hilsiam and Ms Wormila Angkang were cancelled by Regional 33 Director, SSC, Guwahati vide Memorandum dtd. 18.02.2013 and both of them were also debarred for 5 years from all the examination or selection conducted by the commission with immediate effect vide Memorandum dtd. 24.05.2013.
(7) By the aforesaid fallacious decision taken by Shri N.K.Raghapathy, the then Chairman of SSC, HQ, New Delhi, an irreparable damage has been caused on the reputation of the candidates Shri Kam Minthang Hilsiam and Ms Wormila Angkang before their friends, family members and society at large and also seriously jeopardized their chances of getting any employment through SSC.
The Enquiry Report of the case with above finding duly approved by the competent authority of CBI is submitted herewith before this Hon‟ble High Court, Meghalaya for kind perusal and further necessary order as your Lordship deem fit and proper.
Sd/-
(Ng. Khamrang) SP i/c & Head of Branch CBI, ACB, Shillong".
7. On focusing the evidence of the CBI report, it is clear and apparent that, there was no malpracticing or cheating has been indulged by the petitioner. Besides that, it is also clear that the petitioner Shri Kam Minthang Hilsiam and the other candidate Ms. Wormila Angkang were allotted not only in two separate rooms but their rooms were in two different buildings. It is also apparent that, prior to the entry of the examination hall no candidate was allowed to take any bags, mobile phone or any other gadgets inside the examination hall.
If it is so, then what method adopted by these two candidates to cheat or malpractice as alleged by the respondent/Staff Selection Commission? The answer could not be given by the respondent/Staff Selection Commission Officials and their lawyers as reflected in my order 34 dated 20.04.2015. The CBI with all their best efforts could not take out the method applied for cheating or malpracticing by the petitioner and the other candidate as alleged by the respondent/Staff Selection Commission. In Sub Para of Para 8 of the affidavit-in-opposition, the respondent No. 3 again repeated that the petitioner was found in malpractices and in Para 18 of the said affidavit by the respondent No. 3 further went more to say that, "The Commission is not bound to disclose the manner/mode or way the petitioner was found to have indulged in malpractices". In my opinion such averments on oath is highly irregular and illegal. The respondents must remember the basic principle of justice system is the truth to prevail. It is also the principle of law that when any allegation is brought against a person, the person who is bringing the allegation is duty bound to place the evidence or disclose the incident in detail. There is no escape of it and I expressed my displeasure about such irregular and illegal affidavit filed by the respondent No. 3.
8. Now, further more from the report of the CBI at Para 3.22 Page 7, it is stated that "the enquiry revealed that the Institute of Banking Personnel Selection (For short "IBPS"); is an autonomous body registered as a society under the Societies Registration Act and also as Public Trust under the Bombay Public Trust Act, 1950 and engaged in selection of personnel for banking and non-banking sectors and also carried out research in the area of Human Resource Management, evaluation of competencies and conducting seminars, workshops and training programmes including post examination analysis in respect of the examinations conducted by IBPS".
Para 3.39 Page 11 of the said report of the CBI also categorically stated that, "According to IBPS it is not a case of Use of Unfair Means in respect of the two candidates namely, Shri Kam Minthang and Ms. 35 Wormila Angkang bearing Roll Nos. 5401000130 and 5401500111 respectively. IBPS has communicated this to the concerned Official of SSC vide e-mail dated 12.07.2012 and 23.07.2012".
9. So, after analysis of the submissions advanced by the learned counsel and the report submitted by the CBI before me, it is crystal clear and apparent that, there was no malpracting or cheating between the petitioner Shri Kam Minthang Hilsiam and the other examinee namely, Ms. Wormila Angkang bearing Roll Nos. 5401000130 and 5401500111 respectively. It is note worthy if two candidates get 50% marks in all the papers or get equal negative marks, it does not mean one to infer or assume that there is a cheating. When both the candidates were sitting in two different rooms and no bags, mobile phone or any other gadgets has been recovered from their possession to use as a media of cheating or malpracticing, in my view leveling the allegation against the petitioner and the other examinee when they are not indulging in malpractices is totally illogical and unfounded.
It is also an admitted fact that no opportunity has been given to the petitioner before cancelling his candidature. For easy reference Para 16 Page 9 of the affidavit-in-opposition filed by the respondent No. 3 is reproduced herein below:
"16. No show cause was issued prior to cancellation of his candidature since it was established beyond all reasonable doubt that he had indulged in copying in the examination". This is a clear violation of the principle of natural justice.
10. For the foregoing reasons discussed above and after applying my judicial mind, I find that the whimsical decision of the respondent/Staff Selection Commission has spoiled the life of two innocent candidates and compel them to suffer mentally, physically and financially. As a court I am not 36 in a position to return their valuable period of 5(five) years when they were debarred to sit for further examination. However, I am duty bound to see that, such incident should not occur in future with any other candidate. Therefore, some strict measures need to be taken for the interest of justice system and the people at large.
11. Accordingly, the impugned Memorandum dated 18-02-2013 and 24-05-2013 are hereby set aside. The respondents No. 2, 3 and 4 are hereby directed to restore/accommodate the petitioner Shri Kam Minthang Hilsiam within 30(thirty) days from the date of receipt of a certified copy of this judgment and order with consequential relief. In my view, the petitioner and the other candidate are also entitled for compensation for the sufferings incurred by them due to the irresponsible act of the respondents No. 2 and 3, specially the candidate namely, Ms. Wormila Angkang who has not been qualified in the examination, but due to leveling of the allegation of malpracticing and cheating, she had to lost her reputation, had to suffer mentally, physically and financially. Besides that also, she was debarred for further examination.
12. I also further direct the CBI, Shillong to register a regular case and to investigate thoroughly the matter against the erring Officials and to file the F/F under appropriate Section to the competent court of law.
13. Mr. V.K. Jindal, learned Sr. counsel for the CBI is also present alongwith Mr. N.G. Khamrang, Superintendent of Police In-Charge CBI, Shillong and the Sr. I/O Mr. A.K. Pandey, Deputy Superintendent of Police.
The personal appearance of Mr. N.G. Khamrang, Superintendent of Police In-Charge CBI, Shillong and the Sr. I/O Mr. A.K. Pandey, Deputy Superintendent of Police are hereby dispensed with.
3714. With these observations and directions, this instant writ petition is allowed to that extent and stands disposed of.
JUDGE D. Nary