Calcutta High Court (Appellete Side)
WP.CT/68/2018 on 20 March, 2019
Author: Protik Prakash Banerjee
Bench: Dipankar Datta, Protik Prakash Banerjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.C.T. No. 68 of 2018
Shri Soubhik Naskar
--v--
Union of India & Ors.
Present:
The Hon'ble Justice Dipankar Datta
The Hon'ble Justice Protik Prakash Banerjee
For the petitioners : Mr. Kallol Basu, Adv.
Mr. K.K. Maiti, Adv.
Mr. Arijit Chakraborty, Adv.
Mr. Tapan Bhanja, Adv.
For the Respondents 1 to 3 : Mr. Arpa Chakraborty, Adv.
Mr. Subir Sanyal, Adv.
Heard on : September 28, 2018, October 05, 2018 and October
11, 2018.
Judgment on : March 20, 2019
PROTIK PRAKASH BANERJEE, J.:
1. This petition under Article 226 of the Constitution of India is at the
instance of a citizen who has been deprived of his right to livelihood, part of the
right to life by the respondent Staff Selection Commission and which has been
upheld by the learned Central Administrative Tribunal, Kolkata, through an
order penned by the Member, Administrative, and agreed to by the learned
Member Judicial.
2. The petition challenges both the decision of the learned tribunal dated
January 10, 2018 in Original Application No.1795 of 2016 as also the orders
passed by the Regional Director, Eastern Region of the Staff Selection
Commission on July 29, 2014 and May 10, 2016 which the learned tribunal
upheld.
3. The petitioner has submitted that the manner in which he was deprived of
his livelihood was in gross violation of the basic principles of natural justice and
the opportunity of being heard. He was, admittedly, first selected for appointment
to public employment, in the examinations of 2012 and then his candidature was
withheld initially without a reason being assigned; he also appeared for, and was
successful in the Institute of Banking Personnel Selection test, of 2012, and
joined the Bank of Baroda as a Probationary Officer, Scale I in 2013 because he
needed to work to earn and he needed to earn to live; however, he wanted to
better his lot, and appeared for the second time in the following year in the
Combined Graduate Level Examination (SSC-CGL in short) 2013 and was
successful and there was no whisper of his having adopted unfair means; on that
occasion the Income Tax Department directed him to join in the post of Tax
Assistant by a letter dated September 28, 2015 which induced the petitioner to
resign from the Bank of Baroda and obtain a no objection certificate from the
bank, which accepted the resignation but he was asked to serve out the notice
period for which reason he could not join within the date mentioned by the
Income Tax Department; he therefore sought an extension of time from the
Income Tax Department to join which was granted by a letter dated February 11,
2016. After he had resigned, he was informed by the letter dated May 10, 2016
that retrospectively his candidature in the 2013 SSC-CGL examination was
cancelled and he was given punishment retrospectively, by being debarred from
appearing in the SSC-CGL examination for three years with effect from
September 16, 2012. The earlier round of litigation before the Central
Administrative Tribunal had been against a similar order dated July 29, 2014
which had not disclosed to him any particular before asking him to show cause
against a similar punishment, on allegation of his having resorted to malpractice
and/or unfair means and had ended with the writ petitioner being successful
with the notice to show cause quashed by September 3, 2014 by the learned
tribunal.
4. The funny thing was that it was never communicated to him, how it was
being alleged that he had adopted unfair means, apart from an oracular
statement that experts had come to the conclusion on post-examination analysis
and scrutiny. Such oracular declarations have gone out of style with the pagan
pantheon; Delphi has fallen, the Pythoness is no more, and Apollo now lingers as
legend and the name of a nursing home.
5. When such a treatment has been meted out to a meritorious candidate
who has qualified in every competitive examination he has taken, whether of the
Probationary Officers of nationalized banks, Combined Graduate Level
Examination or otherwise, who was not furnished with an answer to his specific
question how he could have been held to have adopted unfair means, and on that
basis retrospectively by orders dated July 29, 2014 and May 10, 2016, the
respondent authorities cancelled his candidature in the SSC-CGL Examination
2012 and debarred him from taking the said examination for a period of three
years with effect from September 16, 2012 when he had already qualified on
merits without a whisper of adoption of unfair means in 2013, the order dated
January 10, 2018 of the Central Administrative Tribunal (Kolkata Bench) which
upholds such travesty of justice, needs to be looked into by way of judicial
review. That is what the writ petitioner, a member of the scheduled castes, has
contended, I think, with some justification.
6. The petitioner sat for the Combined Graduate Level Examination 2012,
organized by the Staff Selection Commission (SSC-CGL in short) and after
publication of the result on the website of the Commission, it was revised and
further published on May 30, 2013, where the petitioner's name was present.
Thereafter another list was published by the commission on May 30, 2013
withholding the name of the petitioner. After a long process, which need not
detain us, the petitioner was finally favoured with the allegation that this had
been done because he was being accused of being guilty for adopting unfair
means in the said examination.
7. The petitioner in the writ petition has averred as follows, following his
pleadings in the Original Application No.1795 of 2016: -
Paragraph 22: "Your Petitioner states that in his reply dated 17.06.2013 to the
show cause notice dated 04.06.2013 he has categorically asked for the
incontrovertible and reliable evidence as emerged during scrutiny as stated in the
said show cause notice, as those were not disclosed and without affording any
opportunity to deal with such evidences as well as without giving any opportunity
to controvert them by furnishing the copies and/or disclosing the copies of the
said evidence and during pendency of the Original Application the authority
concerned has purportedly passed the order on 29.07.2014 wherein also the said
evidence was not disclosed. In the said order it was alleged that the petitioner
has resorted to malpractice/unfair means in the papers along with other
candidates Shri Gopal Mondal (Roll No. 4410549295) in paper-I of Tier-II. It is
astonishing as to how and based on what evidence the decision the decision was
made particularly when it is found the difference between the Roll No. of the
applicants is three hundred to the Roll No, of Shri Gopal Mondal."
Paragraph 23: "Your petitioner states that in one examination room maximum
100 candidates were allocated seats based on the best of the petitioner's
knowledge on Ticket Nos. It is found that the Ticket No. of Shri Gopal Mondal
was 4003504 whereas the Ticket No. of the petitioner was 4003520 that means
the difference was 17. As far as it is remembered by the petitioner that the said
Shri Gopal Mondal was not allotted seat either in-front of the petitioner or just
his behind. Therefore, the question of resorting to malpractice does not and
cannot arise at all. It is also relevant to state in the examination hall there was
Invigilators as well as Inspecting Officers but there was no report against the
petitioner of indulging any malpractice. Moreover, any punitive decision making
process without disclosing the evidence relied upon in spite of specific
representation to that effect is bad in law and as such the same vitiates the
entire decision making process."
8. It is not in dispute that there were challenges to the notices to show cause
not just by the present petitioner but by those similarly situated who were
similarly harassed by the Staff Selection Commission through the oracular and
inscrutable pronouncements of their "experts", and the original notices to show
cause were set aside by competent Judicial Forums including a learned tribunal
and the Hon'ble High Court of Judicature, New Delhi and a fresh notice to show
cause was issued in case of the petitioner. The contents of the fresh notice to
show cause, dated June 4, 2013, are set out hereinbelow, for the sake of
convenience: -
"No. 5/1/2013-Nom Dated: 4th June 2013
ORDER
Subject: Combined Graduate Level Examination - 2012
Whereas Mr. /Ms. SOUBHIKNASKAR, son/daughter of Shri SUBRATA
KUMAR NASKAR, residing at the address mentioned hereunder was a candidate
of Combined Graduate Level Examination, 2012 as notified in the Employment
News/Rozgar Samachar dated 24-31st Mach 2012 and appeared for Tier II of the
said examination on the basis of his/her performance in Tier II of the
Examination; and
Whereas said Mr. /Ms. SOUBHIK NASKAR was provisionally called for
Interview-cum-Personality Test/CPT/DEST of the aforesaid Examination; and
Whereas the Commission undertakes regular post-examination scrutiny
and analysis of performance of the candidates in objective type multiple choice
question papers with the help of experts, who have proven expertise in such
scrutiny and analysis and has carried out such scrutiny and analysis in the case
of written examination papers in Tier II of the aforesaid examination; and
Whereas incontrovertible and reliable evidence has emerged during such
scrutiny and analysis that said Mr. /Ms. SOUBHIK NASKAR had resorted to
copying in the said papers in association with other candidates who also took the
same examination;
Hence, Mr./Ms. SOUBHIK NASKAR as stated above is hereby given an
opportunity to show cause as to why his/her candidature should not be
cancelled and why he/she should not be debarred for five years from appearing
in examinations conducted/ to be conducted by the Commission on the grounds
of his/her indulgence in unfair means in above-mentioned examination.
(B. Bandopadhyay)
REGIONAL DIRECTOR"
9. The above is all that was served on the writ petitioner to which he was
asked to show cause. Conspicuous by its absence, is any evidence which the
Commission was relying upon and which it alleged was incontrovertible and
reliable evidence which had emerged during the post-examination scrutiny and
analysis by the unnamed experts of "proven expertise"from which it had already
concluded - not merely alleged - that the writ petitioner had resorted to copying
in the said papers in association with other candidates who took the
examination.
10. Where a person is accused of adopting unfair means to qualify in an
examination, he must be furnished with precise and sufficient materials and
particulars to show how he is alleged to have adopted unfair means, what unfair
means he adopted, and how this helped him. Unless these materials are
furnished, holding him guilty of adopting unfair means in a selection process for
public employment, would, by itself be a gross violation of the basic principle of
natural justice. Without these particulars, any opportunity of being heard would
be illusory. I consider this trite, and it does not require citation of precedents.
Such a gross violation of natural justice would in itself be an infringement of
Article 14 of the Constitution of India and deny a person equality before the law
and equal protection of the laws. Where such a notice to show cause was relied
upon to deny someone employment or the fruits of selection process, depriving
him of his livelihood, and not cured by supply of the said evidence as sought by
the writ petitioner, it would naturally be depriving him of livelihood without due
process and/or procedure established by law. This would be in violation of Article
21 of the Constitution of India.
11. Let me therefore see, whether the said fatal lacunae in the notice to show
cause, as pointed out in paragraph 22 of the writ petition (following the pleadings
in the original application) were held to have been cured by the orders passed by
the Commission, and if so, how had it been cured.
12. I extract the material portions of the Order dated July 29, 2014 issued by
the Regional Director, Eastern Region of the Staff Selection Commission: -
Paragraph 3: "Whereas, the Commission causes regular post-examination
scrutiny and analysis of performance of the candidates in Objective Type Multiple
Choice Questions Papers with the help of experts, who have proven expertise in
such scrutiny and analysis and had undertaken such scrutiny and analysis in
the case of written examination papers of the aforesaid examination; and"
Paragraph 4: "Whereas, incontrovertible and reliable evidence has emerged
during such scrutiny and analysis that Shri Soubhik Naskar had resorted to
malpractice/unfair means in the said papers along with other candidate Shri
Gopal Mondal (Roll. No. 4410549295) in paper I of Tier II and based on such
evidence the Commission has decided to cancel his candidature and debar him
for a period of three years from its examination as per standard practice followed
by the Commission wherever malpractices is detected; and"
Paragraph 5: "Whereas, the Commission, the Competent Authority in the matter,
has made a conscious decision with a view to protecting the integrity of the
selection process and to prevent candidates who are found to indulge in unfair
means in such examination from entering into government service though such
manipulative practices, to proceed against Shri Soubhik Naskar; and"
Paragraph 6: "Whereas, a Show Cause Notice was served upon Shri Soubhik
Naskar on 4/6/2013"
Paragraph 7: "Whereas, the submissions made by Shri Soubhik Naskar
communicated to the Competent Authority, which has carefully considered the
same and decided in view of the incontrovertible evidence discovered by post-
examination analysis and scrutiny, not to accept submissions made by Shri
Soubhik Naskar and to proceed with cancellation of candidature of Shri Soubhik
Naskar for Combined Graduate Level Examination-2012 and to debar him from
the Commission's examination for a period of three years, with effect from
16/09/2012 i.e. the date of examination of Tier-II Paper-I."
Paragraph 8: "Now, therefore, Shri Soubhik Naskar, son of Shri Subrata Kumar
Naskar, is hereby informed that his candidature in the Combined Graduate Level
Examination- 2012 is cancelled and he is debarred for a period of three years
from the Commission's Examination with effect from 16/9/2012 i.e. the date of
examination of Tier II Paper-I, without prejudice to the rights of the Commission
to initiate/seek criminal proceedings against him."
13. Interestingly nothing has been disclosed which amounts to incontrovertible
and reliable evidence that the writ petitioner alongwith one Gopal Mondal had
resorted to malpractice/unfair means in the said two papers. In fact, no evidence
has been cited. The only basis of this conclusion were the post-examination
analysis and scrutiny by experts and the reply to the show cause not being
acceptable to the Commission. If no details had been given to the writ petitioner
even after he had pointed out the lacunae in the notice to show cause to the
extent that the evidence relied upon against him was not disclosed whether in
the notice to show cause or thereafter, then in the light of what I have held at
paragraphs 9 and 10 of this judgment, as above, the decision-making process
behind the order dated July 29, 2014 is fatally and incurably flawed. This is only
fair, since the Commission is purporting that it chooses not to accept the
submissions of the writ petitioner in view of the evidence which it never disclosed
to the petitioner before taking the decision impugned. A person was condemned,
virtually unheard, on the basis of evidence of wrongdoing which never saw the
light of day. Even in Medieval ages, the process of law against noblemen who
angered the sovereign was more transparent, in comparison, and gave a better
appearance of justice. If any historical precedent is sought, I will refer to the trial
of Thomas More in the times of Henry VIII.
14. Then comes the second decision impugned by the writ petitioner, dated
May 10, 2016. This was necessitated due to the order dated September 3, 2014
of the Central Administrative Tribunal (Kolkata Bench), in OA
No.350/01129/2014 and a fresh notice to show cause had been issued pursuant
to its directions, this notice being dated October 8, 2014 with a corrigendum
dated October 10, 2014.
15. This gives the appearance - just the appearance, as shall be clear from its
contents and not the reality - of disclosure of the evidence against the writ
petitioner. It will be pertinent to note here, so that comparison can be done after
the contents are considered, that the principles I have laid down at paragraph 10
of this judgment, which must be complied with in order to make the proceeding
consistent with the basic principles of natural justice, have not been complied
with by the Commission.
16. The contents of the second decision dated May 10, 2016 are set out
hereinbelow: -
No. C-18012/70/2014-Admn/1841 Dated: 10th May, 2016
ORDER
WHEREAS, Shri Soubhik Naskar, son of Shri Subrata Kumar Naskar, residing at
Srijan Abasan, 48/B/9, Dr. S.P. Mukherjee Road, Dumdum Cantonment,
Kolkata, West Bengal- 700 028, who was a candidate (with Roll. No.
4410509595) of Combined Graduate Level Examination, 2012, was issued a
fresh Show Cause Notice dated 08/10/2014 in compliance with the ORDER
(ORAL) dated 03/09/2014 of Hon'ble Central Administrative Tribunal, Calcutta
Bench in O.A. No. 350/01129/2014 furnishing therewith particulars of allegation and directing him to show cause as to why his candidature for the aforesaid examination should not be cancelled and he should not be debarred for a period of three years with effect from 16/09/2012 from appearing in examinations conducted/ to be conducted by the Commission on the grounds of his indulgence in unfair means in association with other candidate Shri Gopal Mondal (Roll. No. 4410549295), son of Shri Ajit Kumar Mondal, Vill- Ghola, PO- Joynagar, PS- Ghatal, Paschim Medinipur, West Bengal- 721 212 of the same examination, latest by 22/10/2014 vide this office Memorandum No. 5/1/2013-Nom. Dated 08/10/2014;
2. AND WHERAS, Shri Soubhik Naskar in response to aforesaid Memorandum dated 08/1-/2014 sought documents concerning sitting arrangement, inspection report, evidence and report of expert and report of post- examination scrutiny and analysis vide his representation dated 20/10/2014 addressed to Regional Director, Staff Selection Commission, Eastern Region, Kolkata;
3. AND WHEREAS, Shri Soubhik Naskar was furnished vide SSC office letter No. 5/1/2013-Nom. Dated 06/01/2015 the explanation/analysis of the Commission contained in its letter No. 13/88/2014-C.I(1), dated 17/12/2014 as reproduced below by way of disposal of his aforesaid representation dated 20/10/2014:
In the Multiple Choice Objective Type Test used by SSC in Tier II of Combined Graduate Level Examination 2012, there are 4 choices/ alternative answers in each question out of which only one is right answer in each question and the other three are wrong answers. As far as possible all choices are made plausible enough such that in the event that the candidate does not happen to know the correct answer he would select one of three wrong answers by chance. Thus, the probability of picking a particular wrong answer is 1 out of 3 or 1/3 or 0.33. Similarly, if the other candidate of the pair also does not happen to know the right answers to the same question, he would also happen to select one of the 3 wrong answers. Therefore, the occurrence of one question with identical wrong answers by a pair of candidates will be 1/9= (1/3)2 = (0.33)2. Similarly, the probability of a pair of candidates having 2 questions with identical wrong answers would be (0.33)2 multiplied by (0.33)2 = (0.33)4. If it is continued in the same way, the probability of the pair making wrong answers to 6 questions will be (0.33)12 i.e. 0.0000017. The probability of making wrong answers to 12 questions will be (0.33)24 i.e. 0.0000000000027. it means that one can be certain that such an event cannot occur just by chance;
4. AND WHEREAS, the Commission finds that in case of the malpractices indulged in by the candidates through Bluetooth technology, such candidates normally receive answers through hidden wireless devices on their body which are very difficult to be detected by invigilation staff and the Commission also finds that candidates have advance arrangements with organised gangs who get the question paper solved through experts in various subjects and transmit the right answers to various candidates who have arranged in advance to receive such answers.
5. AND WHEREAS, the Commission finds that from many other cases that some candidates even come to take examination with chits having right answers procured by them a few minutes before the close of gates of examination venues and that such modus operandi has been repeatedly documented by investigating agencies in which cases such candidates have been caught many a times and FIR registered against such delinquent candidates;
6 AND WHEREAS, the Commission also finds from experience that it is very difficult to detect such small electronic devices and consequently difficult to collect concrete evidence to back the charges, having been left with the only possible method to detect indulgence in organised cheating through post examination analysis which is essential to ensure that cheaters and fraudsters are not able to enter Government Service;
7. AND WHEREAS, further representation dated 06/02/2015 made by Shri Soubhik Naskar praying to drop the proceedings against him in then matter, has been carefully considered by the Commission and the Commission finds that the method of post-examination scrutiny and analysis applied in the instant case, in order to determine the use of unfair means, are based on the conclusion arrived at by the high level of matching of answer responses in the OMR answer sheets which are improbable, thereby indicating use of unfair means. Matching of answers of Shri Soubhik Naskar in paper I of Tier II of Combined Graduate Level Examination, 2012 with the other candidate Shri Gopal Mondal are as under-
Tier II (Paper-I) Total MatchRight Right MatchWrongWrongmatchBlank Blank match Test-I 34 12 02 20 Test-II 48 26 10 12
8. AND WHEREAS, the Commission, in view of the high level of matching of answers responses discovered by post-examination analysis between Shri Soubhik Naskar and Shri Gopal Mondal in paper I of Tier-II of Combined Graduate level Examination, 2012, has decided to proceed with cancellation of candidature of Shri Soubhik Naskar for Combined Graduate Level Examination- 2012 and to debar him from the Commission's examination for a period of three years, with effect from 16/09/2012 i.e. the date of examination of Tier-II Paper-I;
9. NOW THEREFORE, in compliance with the Order (Oral) dated 03/09/2014 of Hon'ble Central Administrative Tribunal, Calcutta Bench in O.A. No. 350/01129/2014, Shri Soubhik Naskar, son of Shri Subrata Kumar Naskar, is hereby informed that his candidature for Combined Graduate Level Examination- 2012 has been cancelled and he has been debarred from appearing in the Commission's examinations for a period of three years with effect from 16/9/2012 which is the date of holding of Tier-II of the said examination.
(B. Bandyopadhyay) REGIONAL DIRECTOR, SSC (ER)Kolkata."
17. It will be clear from the above decision that the decision-making process of the commission was based on the probability of two people in the same examination with the same question paper with multiple choice questions of marking wrong answers to the same questions. According to the Commission and the explanation it furnished to the writ petitioner under cover of its letter dated December 17, 2014 "Therefore, the occurrence of one question with identical wrong answers by a pair of candidates will be 1/9= (1/3)2 = (0.33)2. Similarly, the probability of a pair of candidates having 2 questions with identical wrong answers would be (0.33)2 multiplied by (0.33)2 = (0.33)4. If it is continued in the same way, the probability of the pair making wrong answers to 6 questions will be (0.33)12 i.e. 0.0000017. The probability of making wrong answers to 12 questions will be (0.33)24 i.e. 0.0000000000027. it means that one can be certain that such an event cannot occur just by chance;".
This begs the question, how then, did the writ petitioner manage to copy the answers from Gopal Mondal. Were they seated in the same room? If so, were they so seated as one could copy from the other? Did they pass their question papers with the answers marked to each other? For this at the very least a seating plan ought to have been produced by the Commission and relied upon by it to come to the conclusion that this was the way in which malpractice/unfair means were adopted by the writ petitioner. It is a linking fact which must be shown to exist before the conclusion is reached that the writ petitioner copied his answer from Gopal Mondal. It would be an easy thing to prove it, if it were a fact, since the records being the seating plan of the candidates in the CGL Examination in 2012 are in the custody, possession and control of the Commission and were in such custody, possession and control at all material times before taking the decision and when communicating it to the writ petitioner. In fact, this is what the writ petition had in effect sought, as averred by the petitioner at paragraph 23 of the pleadings in the writ petition and as extracted at paragraph 5 above.
18. The Commission, as is apparent from the order dated May 10, 2016 did not supply the said seating plan nor gave any reason for non-supply. Thus it has only the theory of probability as calculated by its unnamed experts after the examination to come to the conclusion that the writ petitioner must have copied his answers from Gopal Mondal, without being able to explain, how exactly he did it, if Gopal Mondal neither sat immediately in front or immediately behind the writ petitioner, if there was no allegation that they were passing their marked question papers with the answers indicated back and forth or from one to the other, and if the writ petitioner has not been held able to practise telepathy.
19. Instead the Commission chose to go on a tangent, on its general experience in terms of the facts mentioned at paragraphs 4, 5 and 6 of the said order dated May 10, 2016. Once I go through the said facts, though, they seem to be nothing more than conjectures in very general terms of first, malpractices indulged by candidates through Bluetooth technology or through hidden wireless technology which is difficult to be deduced by invigilation staff, and second, many candidates have advance arrangements with organized gangs who get the question paper solved through experts in various subjects and transmit the right answers to various candidates who have arranged with them to receive the right answers. Significantly the Commission did not conclude which of these modes was selected by the writ petitioner to indulge in the unfair practice. Again, the Commission recorded that in many cases candidates were reported against and First Information Reports were lodged against them for having come to take the examination with chits having right answers procured by them a few minutes before the close of gates of examination venues. However, it did not record that the writ petitioner was guilty of any such thing or a first information report to that effect was lodged with any competent police authority. Lastly, the Commission admitted that it was very difficult to detect such small electronic devices and consequently difficult to produce concrete evidence to back the charges. Even then, the Commission did not come out straight with an allegation that the writ petitioner had used such a small electronic device to adopt unfair means. It could not do so, because nothing of the sort had been contemporaneously alleged by the Commission nor was any such device discovered at the time when the petitioner had taken the examination in 2012. Therefore, on the own admission of the Commission in the orders impugned by the writ petitioner, the Commission had no evidence, realor unimpeachable, to hold that the writ petitioner had been guilty of malpractice, far less incontrovertible or reliable evidence which emerged during post-examination scrutiny or analysis. In fact, if one attempted make the Commission disclose which of the particular modes for committing unfair practice did the petitioner resort to, according to the Commission, I suspect we will find it as difficult as catching a moonbeam by hand - or in this case, utter moonshine - because all that the Commission alleges was that many candidates had adopted unfair means in the past, in various ways and therefore it had to be held, on the basis of the findings of that oracular, half-baked prophetic theory of probability discovered by unnamed experts, that the writ petitioner could not have made the same mistakes as Gopal Mondal unless he cheated from him.
20. Since the respondents to the writ petition had filed their Affidavit-in- Opposition (called a reply) to the original application filed before the learned tribunal by the same writ petitioner, this Court had decided not invite them to file a further Affidavit-in-Opposition in the writ petition, by the order dated September 28, 2018 and had proceeded to hear the matter.
21. After hearing this rather absurd and ridiculous theory as in paragraph 19 being canvassed in all seriousness by the learned Advocates of the Commission, and when it appeared that they seriously contended that the Commission and the Union of India are entitled to violate Articles 14 and 21 of the Constitution of India (as I have held in paragraphs 9 and 10 of this judgment) on the basis of conjectures, I asked them to produce the seating plan of the day in question in the two papers which showed the relative positions in which the writ petitioner and the said Gopal Mondal sat. This had not been produced before the learned tribunal either. The learned advocates could not produce this on October 6, 2018 or October 11, 2018 when the Court concluded the hearing and reserved judgment.
22. I went through the order dated January 10, 2018 passed by the learned tribunal in the matter from which this writ petition arises. I thought that above aspects of the matter would be referred to and cogent reasons would be assigned for repelling the contentions of the writ petitioner, for which the original application was dismissed. I was startled to find that the conclusions of the learned tribunal which were summarized at paragraph XI of the order and paragraph XII thereof, assumed that a principle of law, laid down by the Hon'ble Supreme Court in a case involving the All India Pre-Medical/Pre-Dental Entrance Test for Academic Session 2015-2016 for All India Quota seats and to be governed by the rules and regulations in that regard framed by the Ministry of Health and Family Welfare from time to time, was an approval of the step taken by the Commission under its separate rules and without even considering that the facts of that case were widely different.
23. Let me first consider the judgment of the Hon'ble Supreme Court which binds this Court if the facts are the same. The case referred to by the learned tribunal is Tanvi Sarwal--v--Central Board of Secondary Education and Others reported AIR 2015 SC 3454. Quite apart from the fact that this was a professional competitive examination and not general, the specific facts of the case as recorded by the Hon'ble Supreme Court was that an investigation was carried on and "44 candidates have been found to be confirmed beneficiaries who were supplied answer keys during the examination by the gang through special vests fitted with electronic gadgets. The detail of 44 beneficiaries' candidates is annexed as ANNEXURE R-1. It is pertinent to mention here that out of 44 candidates, FIRs, have already been registered against three candidates in districts Jamshedpur, Jharkhand. Out of the remaining 41 candidates, 21 candidates were joined investigation by the SIT who admitted to having received answer keys through vests fitted with electronic devices during the examination hours. Notices to join investigation have been served upon the remaining 20 candidates who have yet to do so. The above mentioned 44 beneficiaries appeared in the examination at various centres spread across the country. Out of these, 15 candidates appeared at Siliguri, District Darjeeling, West Bengal; 11 appeared at Rohtak, Haryana; four appeared at Ajmer, Rajasthan; three appeared at Delhi; three appeared at Jamshedpur, Jharkhand, and one each at Shimla, Himachal Pradesh; Dehradun, Uttrakhand; Patna, Bihar; Gurgaon, Haryana; Chandigarh; Bhubaneswar, Odisha; Bagdogra, District Darjeeling, West Bengal and Nagpur, Maharashtra and all them were able to secure answer keys through vests fitted with electronic devices."
It was on this factual aspect that the Hon'ble Supreme Court was pleased to accept the contention that "Having regard to the expected sanctity of an examination process, and the nature and extent of vitiation by the diabolic and deplorable outrages disclosed in the investigation till this stage, the beneficiaries of the plot even if they remain unidentified, cannot be permitted to score a march over their counterparts who are not party to the fraud and cannot be made to suffer for no fault of theirs, they maintained."
On the basis of this finding of a racket, through investigation, which was completely and transparently informed to the persons against whom first information report was lodged, the Hon'ble Supreme Court was to hold as follows: -
"As has been noticed hereinabove, the disclosures in the investigation suggest that the benefit of answer key has been availed by several candidates taking the examination, by illegal means. Though as on date, 44 such candidates have been identified, having regard to the modus operandi put in place, the numbers of cell phones and other devices used, it is not unlikely that many more candidates have availed such undue advantage, being a part of the overall design and in the process have been unduly benefited qua the other students who had made sincere and genuine endeavours to solve the answer paper on the basis of their devoted preparation and hard labour. In view of the widespread network, that has operated, as the status reports disclose and the admission of the persons arrested including some beneficiary candidates, we are of the opinion, in view of the strong possibilities of identification of other candidates as well involved in such mal practices, that the examination has become a suspect. As it is, the system of examination pursued over the decades, has been accepted by all who are rationale, responsible and sensible, to be an accredited one, for comparative evaluation of the merit and worth of candidates vying for higher academic pursuits. It is thus necessary, for all the role players in the process, to secure and sustain the confidence of the public in general and the student fraternity in particular in the system by its unquestionable trustworthiness. Such a system is endorsed because of its credibility informed with guarantee of fairness, transparency authenticity and sanctity. There cannot be any compromise with these imperatives at any cost."
The Hon'ble Supreme Court was pleased to direct that a fresh examination was held, on the specific finding that: -
"If such an examination is saved, merit would be a casualty generating a sense of frustration in the genuine students, with aversion to the concept of examination. The possibility of leaning towards unfair means may also be the ultimate fall out. Even if, one undeserving candidate, a beneficiary of such illegal machination, though undetected is retained in the process it would be in denial of, the claim of more deserving candidates. At the present, the examination stands denuded of its sanctity as it is not possible to be cleansed of all the participating beneficiary candidates with certainty. We are thus, on an overall assessment of the materials on record, left unpersuaded to sustain the examination. We must observe that till this stage of the investigation, no conscious lapse or omission on the part of the Board, contributing to the otherwise appalling mischief has surfaced."
24. It is thus clear that the Hon'ble Supreme Court was pleased to hold that the salutary principle that a person who is debarred from sitting for an examination on the ground of adopting unfair means should be actually heard and how he did so was communicated to him, could be given a go-bye when on the facts of a case an investigating agency had investigated and filed reports and criminal cases from which 44 persons were shown to be involved in a racket for adopting unfair means in a professional competitive examination, and the mode of doing so was clearly found on investigation and only thereafter was the examination cancelled on the findings which I have quoted in paragraph 23 of this judgment. It is not, I say emphatically not, a blanket affirmation of the "Statistical Principle" without an exercise of finding of facts by an investigating agency as the learned tribunal acting through its administrative member who is not a legal professional was pleased to hold and which the learned judicial member, who should have known better, did nothing to correct. No such fact is alleged to exist in the present case, or that any fact-finding agency investigated the 2012 CGL examination and found such a racket to exist with a stated mode of malpractice (whether electronic gadget or supply of chits in the examination hall) with any of the candidates arrested for it or found guilty of it, apart from the statistical and half-baked oracular pipe dream canvassed by the Commission. A decision is only an authority for what it decides and not what can be logically deduced from it. A little difference in facts makes a lot of difference in the value of a decision as a precedent. This was held at far back as in the case of Quinn--v-- Leathem reported in (1901) A.C. 495 by Lord Diplock and followed in this country in a catena of cases by the Hon'ble Supreme Courtsuch as in the case of Bhavnagar University--v--Palitana Sugar Mills (P) Ltd and Others reported in (2003) 2 SCC 111.
25. Once I hold as aforesaid, the basis of the learned tribunal's rather naïve and trusting belief in the oracular statistical principle fails, and on facts the law laid down by the Hon'ble Supreme Court does not apply to the case at hand.
26. All that remains is this plaintive cry for justice by the writ petitioner and how the learned tribunal dealt with it. The writ petitioner had asked a pointed question as to what was the incontrovertible and reliable evidence which proved that the writ petitioner was guilty of malpractice and cheating from Gopal Mondal
- he was given a holy run-around by the Commission with scientific obfuscation and this is not in compliance with the basic principles of natural justice. The learned tribunal has referred to this in its internal page 13 of the order impugned. It was pleased to record and hold as follows: -
"The applicant made a further representation dated 6.2.2015 by which he sought for more information with special focus on the siting (sic! for "seating") plan but did not at any stage refute objectively the principle of the statistical method adopted to determine the incidence of adopting unfair means in CGLE, 2012".
This, in my opinion shows that bias of the learned tribunal towards a so-called scientific principle. The experts were not examined by the learned tribunal. It had no occasion to go into the correctness of formula or the principles of probability which had been used by the experts. Who the experts were, are still unclear to this court. However, that they were experts and this was a statistical method, appear to have impressed the learned administrative member who authored the judgment.
27. I have therefore to test the decision of the learned tribunal and the decisions upheld by it, in the light of the law laid down by me at paragraphs 9 and 10 of this judgment and also what I have held in paragraph 19 and paragraphs 22, 23, 24 and 25 of this judgment.
28. The learned tribunal has held as follows: -
"XI. Upon a reasoned analysis of the submissions made, documents placed, pleadings rendered and records annexed, we conclude as follows:-
1) The Respondents have acted within their framework of extant Rules and hence their actions cannot be held as illegal.
2) The actions of the respondents, having adhered to Rules and being in compliance of all judicial decisions cannot be alleged to be arbitrary.
3) At all stages, natural justice was accorded to the applicant to respond. The applicant was totally aware of the proceedings and possible implications.
4) All candidates who have resorted to unfair means have been treated similarly hence the principles of equity has not been violated in this case.
5) The scientific principle behind the statistical analysis have withstood judicial scrutiny and has support in judicial pronouncement of the Hon'ble Apex court.
XII. The applicant, therefore, has not been able to prove illegality, arbitrariness and violation of principles of natural justice and equity; hence, the O.A. fails to succeed and is dismissed on merit."
29. No Rules have been cited by the respondents nor quoted by the learned tribunal which allowed the respondents to follow the law laid down by the Hon'ble Supreme Court in a given facts of a case where a racket to adopt unfair means to denude the sanctity of a professional examination held by the CBSE, in case of the CGLE-SSC, 2012 which is general and where no such finding was recorded by any investigating agency. It has not been held by the learned tribunal that the two sets of rules and regulations are in pari materia. Therefore, neither conclusion (1) nor conclusion (2) of paragraph 28 can be sustained. So far as conclusion (3) is concerned, as I have quoted at paragraph 28 above, I do not know, whether incredulity or acerbic sarcasm would do justice to this finding that natural justice was accorded to the petitioner to respond at all stages. The writ petitioner was never told in which mode he was alleged to have indulged in malpractice/unfair means by copying from Gopal Mondal, whether a microscopic device, a mobile micro-sim, having organized crime rackets supply him chits having the answers of the questions disclosed before he sat for the examination, or any other mode. The writ petitioner kept on asking it. The Commission, from its ivory tower of unreachable bureaucracy and academic rather than practical approach, rather callously told him "we have a statistical formula, which is very reliable and incontrovertible, developed by our unnamed experts, who are very capable, and that shows you have indulged in malpractice/unfair practice in the 2012 examinations, and this was done by a post examination scrutiny and analysis." Can any court in its conscience swallow this or tolerate it without violating the Rule of Law? Apparently, the Commission could. The fact that the Commission has treated all other candidates with equal arbitrariness will not save the arbitrariness or protect the acts from violation of Articles 14 and 21 of the Constitution of India and its consequences. Therefore, conclusions (3) and (4) of the learned tribunal at paragraph 28 can also not be sustained. At paragraphs 22, 23, 24 and 25 I have dealt extensively with why the scientific principle behind the statistical analysis was not the reason why the Hon'ble Supreme Court was pleased to scrap the examination in the case of Tanvi Sarwal (supra) and why the learned tribunal misdirected itself and acted without application of mind to the facts of a precedent relied upon by it to hold that the law laid down therein applied to the present case, which was wholly different factually as I have demonstrated above. Therefore conclusion (5) at paragraph 28 also fails. So far as the conclusion in paragraph XII is concerned, I am afraid that as a result of the discussion as above, I cannot sustain the findings that the applicant could not prove arbitrariness, illegality, violation of the basic principles of natural justice and/or equity. So far as the subsidiary point is concerned, that it was unfair for the respondents to debar the writ petitioner from sitting for the 2013 examination (actually debar him from taking the examination for 3 years from September 16, 2012) by an order dated July 29, 2014 and an order dated May 10, 2016 when he had already qualified in the CGL-SSC 2013, this was as a consequence of the proceedings against him for the 2012 examination. If I had found it fit to uphold the decisions dated July 29, 2014 or May 10, 2016 about the culpability of the writ petitioner in indulging in malpractice in the 2012 examination, this would have been a natural consequence which he would have had to suffer.
30. Since, however, the findings of the learned tribunal at paragraphs XI and XII of the order dated January 10, 2018 are contrary to the materials on record and perverse within the meaning of law as I have demonstrated above, and cannot be sustained, naturally both the Order dated January 10, 2018 passed by the learned tribunal in Original Application No.1795 of 2016 as also the orders passed by the Regional Director, Eastern Region of the Staff Selection Commission on July 29, 2014 and May 10, 2016 are set aside and quashed and the order of the learned tribunal is reversed. As a consequence, the ineligibility of the writ petitioner to sit for the CGLE-SSC for three years from September 16, 2012 including the CGLE-SSC 2013 which he took and qualified, disappears and the result of the said CGLE-SSC both for 2012 and 2013 are restored and the offer of appointment made to the writ petitioner by the Commission in the post of Tax Assistant on September 28, 2015 based on the 2013 CGLE-SSC 2013, is revived and the writ petitioner shall, if he so desires, join in the said post within 4 weeks from the date of communication of this order. His pay and seniority shall be fixed with effect from the date of joining and he will not be entitled either to arrears or any monetary compensation for this harassment meted out to him by the Commission.
31. The writ petition is thus allowed to the above extent. The parties shall bear their own costs.
PROTIK PRAKASH BANERJEE, J.
DIPANKAR DATTA, J.:
32. I agree with my learned brother Banerjee, J, that the petitioner has indeed been given a raw deal and that based on mere surmises and conjectures, he ought not to have been deprived of the fruits of his labour. In fact, having been selected for appointment upon participation in the subsequent examination, in respect whereof there are no allegations of any malpractice or unfair means having been adopted by the writ petitioner, I am of the clear view that the petitioner is entitled to have the impugned orders quashed and to reap the benefit of selection.
DIPANKAR DATTA, J.