Rajasthan High Court - Jaipur
Kamlesh Kumar Meena Son Of Shri Kori Lal ... vs State Of Rajasthan, Department Of ... on 19 September, 2018
Bench: Mohammad Rafiq, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal (Writ) No.1064/2018
With
D.B. Civil Misc. Stay Application No.15965/2018
In
S.B. Civil Writ Petition No.4521/2018
Kamlesh Kumar Meena Son Of Shri Kori Lal Meena, By Caste
Meena, Resident Of Ramjanpura, Bamanwas, Chandanholi,
District Sawai Madhopur (Rajasthan)
----appellant
Versus
1. State Of Rajasthan, Department Of Education, Through its
Chief Secretary.
2. State Of Rajasthan, Department Of Education, Through its
Principal Secretary.
3. Board Of Secondary Education, Rajasthan, Ajmer through
its Secretary.
4. Tejkaran Mundotia S/o Shri Brij Mohan Mundotia, By
Caste Raigar, aged about 30 years, Resident A-116,
Shyam Mitra Mandal Nagar, Opposite Road No.5, VKIA
Murlipura, Jaipur.
5. Amit Sharma S/o Shri Suresh Chandra Mahera, Aged
About 23 Years, By Caste Brahamin, Resident of Near
New Post Officer, Indra Colony, Karoli.
6. Sachin Mishra S/o Shri Manoj Mishra, Aged About 25
Years, By caste Brahamin, Resident of 52, Friends Colony,
Alwar.
7. Dharm Raj Saini S/o Shri Hari Bhajan Saini, By Caste
Saini, aged about 25 years, Resident of VPO Gathmora,
Tehsil Nandoti, District Karauli (Rajasthan).
----Respondents
For Appellant(s) : Mr. S.N. Kumawat
For Respondent(s) : Mr. N.M. Lodha, Advocate General,
assisted by Mr. Kunal Jaiman,
for respondent State
Mr. Anoop Dhand, for private
respondents
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
//Reportable//
Judgment
(2 of 28) [SAW-1064/2018]
19/09/2018
Per Hon'ble Mr. Justice Mohammad Rafiq:
This special appeal seeks to challenge the judgment of the
learned Single Judge dated 31.07.2018, whereby the writ petition
filed by writ-petitioner/appellant Kamlesh Kumar Meena
(hereinafter referred to as 'the appellant') has been dismissed.
The appellant in the writ petition prayed for issuance of a
writ of mandamus to the respondents to get the leakage of
question paper of the REET-2017 Level-II examination
investigated by the Central Bureau of Investigation or Special
Operation Group or any other equivalent premier investigating
agency, with the further prayer for a direction to respondent no.3
Board of Secondary Education for Rajasthan, Ajmer, (for short,
'the respondent-Board') not to declare the result of REET-2017
Level-II examination till completion of investigation. Further
prayer was made that the said examination be cancelled and the
respondent-Board, which was entrusted with the task of
conducting REET-2017 Level-II examination-2017, be directed to
conduct fresh examination.
Mr. S.N. Kumawat, learned counsel for the appellant, has
submitted that the appellant received a message on WhatsApp (a
messenger app) of his cellphone number 9785937091 at 09:05
AM on 11.02.2018 while he was proceeding towards his
examination center at Shaheed Amit Bhardwaj Senior Secondary
School, Manak Chowk, near Badi Chopar, in front of Hawamahal,
Jaipur, from a WhatsApp group named 'Namo-Lakhya', containing
37 pages of the question paper of G-Series. He did not pay any
heed to the same and proceeded to timely reach the examination
center as the candidates were required to reach latest by 09:00
(3 of 28) [SAW-1064/2018]
AM. However, when the appellant was served with the question
paper of H-Series at 10:00 AM in the examination center, he was
shocked to see that several questions therein were from the same
paper he received on his WhatsApp. When the appellant made
enquiry from other candidates after examination, he learnt that
eight more candidates received similar WhatsApp message of G-
Series question paper on their cellphones. Their names with
cellphone number were mentioned by the appellant in the
rejoinder to the reply of the respondents filed in the writ petition.
This clearly proves that the question papers of the REET
examination was leaked and the sanctity of the examination
became doubtful. Many undeserving candidates, by virtue of such
leakage, were able to steal a march over genuine and deserving
candidates.
The learned counsel for the appellant argued that the
learned Single Judge has erred in law in attaching too much
significance to the fact that Yashwant Kumar Saini, in whose name
the complaint was made, in his statement before the committee of
the respondent-Board, has denied having made such complaint
and even disputed his signature on such complaint. The learned
Single Judge as also three-member-committee of the respondent-
Board has read only one part of the statement of Yashwant Kumar
Saini and ignored the other part. The earlier part of his statement
that has been relied by the learned Single Judge to dismiss the
writ petition is that Yashwant Kumar Saini has denied that he
made the complaint dated 11.02.2018 to the respondent-Board
and that the complaint was not in his handwriting. The complaint
did not even contain his signature. His name and cellphone
number have been misused by someone and further that he did
(4 of 28) [SAW-1064/2018]
not receive any WhatsApp message on his cellphone number. But
in latter part of the statement of the said Yashwant Kumar Saini,
he stated that such message was received by his companion
Kamlesh Kumar Meena, i.e., the appellant herein, who informed
him about the leaked paper, has been completely ignored. The
said Yashwant Kumar Saini also stated that after the examination,
the appellant came to him and they compared the paper of G-
Series received on WhatsApp group with the virtual question
paper, which substantially matched and they got its print out and
informed the media persons about it.
The learned counsel for the appellant further argued that the
examination committee of the respondent Board and the learned
Single Judge could not have selectively considered only one part
of the statement of Yashwant Kumar Saini and such statement has
to be read as a whole. Apart from Yashwant Kumar Saini, a
complaint was also received from one Naina Ram in the Chief
Minister office. According to the respondents, they twice called the
said Naina Ram by sending notice at his e-mail address but he did
not appear and therefore, no action could be taken on that
complaint. It is argued that learned Single Judge was not justified
in accepting the submissions of the respondents about outcome of
the enquiry without the report thereof being placed on record,
which deprived the appellant of the right to controvert the same.
The learned Single Judge has erred in law in rejecting the
argument of the appellant only because he was served with the
question paper of H-Series and the question paper received on
WhatsApp message by the appellant was of G-Series, by
overlooking the fact that the question papers were distributed to
the candidates in four series. Though the number of questions
(5 of 28) [SAW-1064/2018]
were same but only their sequence was changed in different
series. This factor cannot be relied to hold that there was no
leakage of question paper.
It is argued that the question paper of G-Series was leaked
not only in Jaipur but also in Pali as also in Sidhmukh of Churu
district and Nohar of Hanumangarh district. The police conducted
investigation with regard thereto, but failed to reach the
conclusion as to wherefrom the question paper originated as no
help was taken from the cyber cell of the Police Department. The
learned Single Judge was wholly unjustified in rejecting the writ
petition questioning the locus standi of the appellant, ignoring the
fact that the appellant was only a whistle blower and his duty was
to bring the incident of leakage to the notice of the respondent
authorities. The view taken by the learned Single Judge that the
writ petition could not be filed by the appellant as he was not
aggrieved person and, therefore, he has no locus standi and that
the writ petition could not be filed without serving notice for
demand of justice on the respondents and that the appellant has
not come with clean hands, is wholly perverse and erroneous. The
inability of the respondent-Board to maintain the secrecy and
sanctity of the examination was a serious lapse on their part. The
leaked question paper went viral one hour before the beginning of
the examination and was found to have been circulated in
different parts of the State, thus vitiating the entire process of
examination.
Mr. S.N. Kumawat, the learned counsel, submitted that while
in the REET examination-2016, the cut off mark of English subject
was 65.88% but in this examination, the cut off mark in English
has increased to 67.93%. There has been a similar increase in all
(6 of 28) [SAW-1064/2018]
other subjects by 3% to 5%. The internet services were also
suspended by the State of Rajasthan only from 10:00 AM and that
means the examination paper was freely circulated on WhatsApp
groups in different parts of the State prior to that. Even as per the
investigation conducted by the police, the Station House Officer,
Sadar Police Station, Pali, received information at 08:55 AM on
11.02.2018 about certain persons being seen in suspicious
circumstances at Hanuman Sagar Agriculture Farm at Pali with
laptops, printers, etc., and when the said farm house was raided,
11 out of 20 printed pages were recovered, which contained
questions from paper of G-Series. The police eventually filed the
charge-sheet in that case against six accused with remaining
absconding, for offence under Sections 4, 6 and 6A of the
Rajasthan Public Examinations (Prevention of Unfair Means) Act,
1992 and Section 120B of the Indian Penal Code. Similarly, a
WhatsApp message was also received by one Rahul S/o Kaur
Singh of Sidhmukh of Churu district at 08:49 AM on 11.02.2018
with 37 pages. This WhatsApp message was found originated from
Nohar Industrial Area of Hanumangarh from one Ashok Kumar, a
cousin of the said Rahul. The police during investigation found
involvement of as many as eight named candidates, who were
beneficiaries of such leakage of the question paper. Mr. S.N.
Kumawat, learned counsel for the appellant, therefore, submitted
that the impugned judgment be set aside and the writ petition be
allowed in terms of the prayer made therein.
In support of the arguments, the learned counsel for the
appellant has relied on Chairman, All India Railway
Recruitment Board Vs. K. Shyam Sundar - (2010) 6 SCC
614, and Nidhi Kaim Vs. State of Mahdya Pradesh and
(7 of 28) [SAW-1064/2018]
Others - (2016) 7 SCC 615, which were also cited before the
learned Single Judge to argue that even a minute leakage of
question paper would be sufficient to contaminate the written
examination, requiring the re-test in order to achieve the ultimate
object of fair selection. In addition thereto, learned counsel for the
appellant has also relied on the judgment of the Supreme Court in
Gohil Vishvaraj Hanubhai and Others Vs. State of Gujarat
and Others - (2017) 13 SCC 621.
Mr. N.M. Lodha, learned Advocate General, appearing for the
respondents State, opposed the appeal and submitted that as per
the documents submitted with the writ petition, the complaint was
made by one Yashwant Kumar Saini about the leakage of the
question paper of G-Series. No complaint was submitted by the
appellant. The enquiry committee constituted by the respondent-
Board summoned Yashwant Kumar Saini, who appeared before the
committee on 23.02.2018 and made a statement. He stated that
he did not appear in the REET examination. He denied having
made any such complaint, which was filed with the writ petition.
He rather stated that his name and mobile number have been
used by someone else. Apart from him, one Naina Ram also made
a complaint in the name of 'Berojgar Sangh', which was received
in the office of the Chief Minister on 15.02.2018, which was sent
to the Principal Secretary to the Government, Education
Department, on 22.02.2018, who, in turn, conveyed the same to
the respondent-Board. The Board, by order dated 06.03.2018,
constituted a high level committee with its Chairman and two
members to inquire into the complaint. Notice was sent to the said
Naina Ram on his email address mentioned in the complaint
asking him to appear before the Committee on 09.03.2018 but he
(8 of 28) [SAW-1064/2018]
did not appear. On his failure to appear, the Committee again sent
notice to him to appear on 16.03.2018 but on that date also he
did not turn up. The Committee, therefore, did not find the
allegations substantiated. No other material was even otherwise
placed before the Committee to substantiate the allegation.
Mr. N.M. Lodha, learned Advocate General, submitted that
even the police investigation conducted in the incident at Pali,
Nohar and Sidhmukh and also at Jaipur did not find any substance
in the allegation that there was leakage of the question paper and
it went viral and was circulated widely. In fact, the police
investigation revealed that those found involved in the leakage of
the question paper, did not appear in the examination. Moreover,
no other complaint was received from any part of the State of
Rajasthan. The appellant in the writ petition alleged that he
received the question-paper of G-Series in examination center but
actually the question paper supplied to him was of H-Series and,
therefore, it was a false plea on his part. Moreover, as per the
allegation, the leakage of question paper was of G-Series at three
places. As per own showing of the appellant, he did not pay any
heed to the question paper received through WhatsApp message
on his cellphone on 11.02.2018 at 09:05 AM and proceeded to
reach the examination center on time. The alleged leaked question
paper had thus no impact on the examination. It is argued that
the internet services were suspended in the entire State of
Rajasthan before and during the examination inasmuch as the
candidates were not allowed to carry any mobile phone, bluetooth,
pager or any other device in the examination center. Jammers
were also fixed at the examination centers to stop receiving
signals. CCTV cameras were fixed and photographs were taken to
(9 of 28) [SAW-1064/2018]
rule out any cheating or use of unfair means. All the candidates
were required to reach the examination center at 09:00 AM on
11.02.2018, i.e., one hour before the scheduled time for start of
the examination.
It is submitted that the appellant, by way of an afterthought,
gave the cellphone numbers of eight more persons in the
rejoinder, which he did not mention in the writ petition, stating
that on enquiry made after the examination, he learnt that these
eight persons also received the alleged leaked question paper
through the WhatsApp message. But if that were true, there was
no reason why the appellant would not make such assertion in the
memorandum of the writ petition. This shows that the allegation is
nothing but an afterthought. Moreover, only four persons out of
eight persons, appeared in the examination. One failed to secure
the passing marks and could secure only 73 marks, which were far
less than the required 90 marks for qualifying the examination,
and other three respectively secured 99, 102 and 102 marks only
(including bonus marks), and those marks were less than the cut
off marks to qualify the selection process. There was thus no
impact of the alleged leakage on the examination.
The learned Advocate General, in support of his arguments,
has relied on the judgments of the Supreme Court in East Coast
Railway and Another Vs. Mahadev Appa Rao and Others -
(2010) 7 SCC 678, Union of India and Others Vs. Rajesh
P.U., Puthuvalnikathu and Another - (2003) 7 SCC 285 and
Ran Vijay Singh and Others Vs. State of U. P. and Others -
AIR 2018 SC 52.
Mr. Anoop Dhand, learned counsel appearing on behalf of the
successful candidates, opposed the writ petition. He submitted
(10 of 28) [SAW-1064/2018]
that there is no truth in the allegation that the examination paper
was leaked at 09:05 AM in the morning of 11.02.2018. Had it
been so, the appellant would have immediately informed the
police thereabout. Filing of the writ petition/appeal by the
appellant lacks bona-fides. The appellant did not make any
complaint to the Invigilator, the Principal of the School or the
Police Official before or during or immediately after the
examination about the alleged leakage. The learned counsel relied
on the judgment of the Punjab and Haryana High Court in Mannat
Kaur (Minor) Vs. Central Board of Secondary Education &
Others - Civil Writ Petition No.5657/2014, delivered on
01.07.2014, in which it was alleged that there was leakage of a
question paper of the Senior Secondary Examination confined to
limited area of Imphal in the State of Manipur. The examination of
only Manipur center was cancelled as there was no proof of the
examination of any other part of the country being affected or
leaked paper having reached there.
The learned counsel argued that the appellant has
approached this court only because he was sure of not securing
60% passing/qualifying marks. The appellant has backing of many
other candidates, who were either still appearing in the eligibility
academic examination or who had not yet completed study course
and wanted the examination to be cancelled. Even then, the
allegation of the appellant at best is that the leakage was confined
to Manak Chowk area of Jaipur and that too happened after the
candidates had already reached the examination center. In such
like scenario, no case arises for interference by this court. The
learned counsel cited the order passed by the Supreme Court on
04.04.2018 dismissing the Writ Petition (Civil) No.279/2018 -
(11 of 28) [SAW-1064/2018]
Mahindar Pratap Singh and Others Vs. Central Board of
Secondary Education, wherein allegation was about leakage of
CBSE paper of Economics of 12th standard in the month of
March/April, 2018. The Supreme Court refused to interfere. The
argument of the learned counsel is that the entire examination
ought not be cancelled for the benefit of the appellant alone as
thousands of the unemployed youth are in queue of securing
appointment with the Government.
We have given our anxious consideration to rival submissions
and perused the material on record and also respectfully gone
through the cited judgments.
We may at the outset express our disagreement with the
view taken by the learned Single Judge, by relying on the
judgments of the Supreme Court in Ayaaubkhan Noorkhan
Pathan Vs. State of Maharashtra and Others - (2013) 4 SCC
465, and Renu and Others Vs. District and Sessions Judge
Tis Hazari and Another - (2014) 15 SCC 731, that the
appellant did not have the locus to maintain the writ petition as he
cannot be said to be an aggrieved person. Once the appellant had
shown that he appeared in the examination, he has to be
considered as an aggrieved person. He could very much maintain
the writ petition. We also do not concur with the view taken by the
learned Single Judge, relying on the judgment of the Supreme
Court in the State of Haryana and Another Vs. Chanan Mal
etc. - AIR 1976 SC 1654, Ramswaroop Bagari Vs. State of
Rajasthan and Others - AIR 2002 Raj. 28, that the appellant
could not maintain the writ petition as he failed to serve notice for
demand of justice on the respondents, calling upon them to
discharge their legal obligation. We also do not find any
(12 of 28) [SAW-1064/2018]
justification for the finding recorded by the learned Single Judge
that the appellant was guilty of suppression of the fact as there
was mismatch in the series of the question paper which, according
to him, was leaked and the one which was supplied to him in the
examination center. Reliance in support of this finding was placed
by the learned Single Judge on the judgments in Dalip Singh Vs.
State of Uttar Pradesh & Others - (2010) 2 SCC 114,
Manohar Lal (Dead) by Lrs. Vs. Ugrasen (Dead) By Lrs. And
Others - (2010) 11 SCC 557, and Welcome Hotel and Others
Vs. State of Andhra Pradesh and Others - (1983) 4 SCC
575, and with regard to the conduct of the petitioner, reliance was
placed on the judgment of the Supreme Court in Messrs.
Pannalal Binjraj and Others Vs. Union of India and Others -
AIR 1957 SC 397. In our considered view, reference to all these
judgments was not necessary particularly when the learned Single
Judge has eventually in the latter part of the judgment gone on to
examine the matter on merits, although eventually dismissed the
writ petition even on merits.
Be that as it may, the decision of this matter should depend
on answer to the questions - (i) whether there was any leakage of
the question paper?, (ii) what was the spread of such leakage
inasmuch as the sweep of such leakage so wide as to have effect
of all pervasive nature undermining the sanctity of whole of the
examination process?, (iii) what was the timing of leakage and on
that basis, if the time gap between leakage and commencement of
the examination was so large as could possibly affect the secrecy
of the examination?, (iv) whether the State agencies were alive to
the situation and had maintained the necessary vigil and
precautions to ensure that secrecy of the examination was
(13 of 28) [SAW-1064/2018]
maintained?, and (v) whether the investigation conducted by the
police in regard to the incident reported at different parts of the
State found any substance in the allegation of the examination
process being vitiated?
Before we proceed to examine the merits of the case, we
deem it appropriate to briefly refer to the cited precedents, which
may serve as the guidance to answer the questions posed above.
The Supreme Court in Nidhi Kaim Vs. State of Madhya
Pradesh and Others - (2016) 7 SCC 615, the judgment relied
on by the learned counsel for the appellant, arose out of famously
known 'Vyapam Scam' in the State of M.P., held that where there
are allegations that the students had resorted to unfair means on
large scale in an examination, the court would not insist upon
registration of formal complaint. Any reliable information
suggesting adoption of such malpractices in the examination is
sufficient to authorize the examining body to take action as they
consider just and proper because such bodies are responsible for
their standards and conduct of examinations. It was held that the
scope of judicial review of decision of the examining body is very
limited. If there is some reasonable material before the body to
come to the conclusion that unfair means were adopted by the
students on a large scale, neither such conclusion nor the
evidence forming the basis thereof could be subjected to scrutiny
on the principles governing the assessment of evidence in a
criminal court. In that case, it was also held that the public policy
of the country and the larger public interests would be more
appropriate guides than the considerations of equity to decide
these questions in the absence of statutory principles applicable to
such controversy. But that was a converse case where the
(14 of 28) [SAW-1064/2018]
examination was cancelled by the authorities on receiving
complaint of use of unfair means by the students on large scale.
Apart from the principle of law laid down above, the factual
background in the context of which these observations were made
by the Supreme Court were entirely different.
In Union of India and Others Vs. Rajesh P.U.,
Puthuvalnikathu and Another, supra, relied on by the learned
Advocate General, the dispute pertained to the recruitment to 134
posts of Constables in the Central Bureau of Investigation. Therein
the Supreme Court refused to interfere with the judgment of the
High Court relying on the report of the Special Committee
constituted by the Central Bureau of Investigation, which
identified 31 candidates who were otherwise ineligible but were
included in the select list undeservedly and directed the
appointment of the remaining selected candidates. The Supreme
Court in those facts, held as under:-
"Applying an unilaterally rigid and arbitrary standard to
cancel the entirety of the selections despite the firm and
positive information that except 31 of such selected
candidates, no infirmity could be found with reference to
others, is nothing but total disregard of relevancies and
allowing to be carried away by irrelevancies, giving a
complete go bye to contextual considerations throwing
to winds the principle of proportionality in going farther
than what was strictly and reasonably required to meet
the situation. In short, the Competent Authority
completely misdirected itself in taking such an extreme
and unreasonable decision of canceling the entire
selections, wholly unwarranted and unnecessary even on
the factual situation found too, and totally in excess of
the nature and gravity of what was at stake, thereby
virtually rendering such decision to be irrational."
The Supreme Court in East Coast Railway and Another
Vs. Mahadev Appa Rao and Others, supra, yet another
judgment relied by the learned Advocate General, considered the
challenge to the judgment of the High Court, which, while setting
(15 of 28) [SAW-1064/2018]
aside the judgment of the Tribunal, had reversed the decision of
the Railways to cancel the typewriting test for recruitment to the
post of Chief Typists. In para 26 and 31 of the report, the
Supreme Court held as under:-
"26. If a test is cancelled just because some complaints
against the same have been made howsoever frivolous,
it may lead to a situation where no selection process can
be finalized as those who fail to qualify can always make
a grievance against the test or its fairness. What is
important is that once a complaint or representation is
received the competent authority applies its mind to the
same and records reasons why in its opinion it is
necessary to cancel the examination in the interest of
purity of the selection process or with a view to
preventing injustice or prejudice to those who have
appeared in the same. That is precisely what had
happened in Dilbagh Singh's case (supra). The
examination was cancelled upon an inquiry into the
allegations of unjust, arbitrary and dubious selection list
prepared by the Selection Board in which the allegations
were found to be correct.
.....
.....
31. So also whether the competent authority ought to have conducted an enquiry into or verification of the allegations before passing an order of cancellation is a matter that would depend upon the facts and circumstances of each case. It may often depend upon the nature, source and credibility of the material placed before the authority. It may also depend upon whether any such exercise is feasible having regard to the nature of the controversy, the constraints of time, effort and expense. But what is absolutely essential is that the authority making the order is alive to the material on the basis of which it purports to take a decision. It cannot act mechanically or under an impulse, for a writ court judicially reviewing any such order cannot countenance the exercise of power vested in a public authority except after due and proper application of mind. Any other view would amount to condoning a fraud upon such power which the authority exercising the same holds in trust only to be exercised for a legitimate purpose and along settled principles of administrative law."
Another judgment relied by the appellant in Chairman, All India Railway Recruitment Board Vs. K. Shyam Sundar, (16 of 28) [SAW-1064/2018] supra, arose out of a case where the Railway Board directed the Railway Recruitment Board to conduct retest for recruitment to Group-D posts of those candidates who had obtained minimum qualifying marks in the first written examination, in which large scale irregularities and malpractices were noticed. This was one of the three alternatives available with the Railways. The High Court by applying the Wednesbury principle of unreasonableness as also doctrine of proportionality held the decision of the Board to be illegal and arbitrary and directed to finalize the selection on the basis of first written test except of those 62 candidates against whom there were allegations of impersonation. The observations of the Supreme Court that were made in that context are quite germane even for the present case. Para 36 and 37 of the report, which read thus:-
"36. Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to `assess the balance or equation' struck by the decision maker. proportionality test in some jurisdictions is also described as the "least injurious means" or "minimal impairment" test so as to safeguard fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalize or lay down a straight jacket formula and to say that Wednesbury has met with its death knell is too tall a statement. Let us, however, recognize the fact that the current trend seems to favour proportionality test but Wednesbury has not met with its judicial burial and a state burial, with full honours is surely not to happen in the near future.
37. Proportionality, requires the Court to judge whether action taken was really needed as well as whether it (17 of 28) [SAW-1064/2018] was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision- maker and whether the decision- maker has achieved more or less the correct balance or equilibrium. Courts entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate, i.e. well balanced and harmonious, to this extent court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere."
In K. Shyam Sundar, supra, the Supreme Court held that the High Court committed a grave error in taking the view that the order of the Railway Recruitment Board could be judged only on the question of reasonableness stated in the impugned order passed on the report of the Vigilance and not on subsequent material furnished by the CBI. It held that the decision-maker can always rely upon subsequent materials to support the decision already taken when larger public interest is involved. In holding so, the Supreme Court relied on its earlier judgment in Madhyamic Shiksha Mandal, M.P. v. Abhilash Shiksha Prasar Samiti and Ors. - (1998) 9 SCC 236. It held that the contrary principle laid down in Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Anr. - (1978) 1 SCC 405 is not applicable where larger public interest is involved and in such situation, additional grounds can be looked into to examine the validity of an order. The Supreme Court in that case also disapproved of the reasoning of the High Court that copy of the Vigilance report should have been made available to the candidates at least when the matters came up for hearing, and held that the copy of the report, if at all to be served, need to be (18 of 28) [SAW-1064/2018] served only if any action is proposed against the individual candidates in connection with the malpractices alleged.
Adverting now to the facts of the case, no doubt, the learned Single Judge has overlooked that part of the statement of Yashwant Kumar Saini where he stated that when, after examination, appellant Kamlesh Kumar returned back, they compared the questions of the paper from those of G-Series received in WhatsApp message and found that 90 of them matched and they took the printout and they informed the media persons, but again, the core question would be whether leakage of the question paper was so wide spread that it covered the entire spectrum of the State throughout its width and length, or if leakage was confined to only two or three centers in few isolated places, few minutes before start of examination, and actually did not affect the sanctity thereof. The respondents have in this behalf placed on record the enquiry conducted by the Committee constituted by the Board of Secondary Education, to which reference has already been made above, but, at the same time, the respondents have also placed on record the result of investigation carried out by the police at Pali, Sidhmukh in Churu district and Nohar in Hanumangarh district and also at Jaipur.
In regard to Pali, the S.H.O., Police Station Industrial Area, Pali, had received the information from reliable sources at 08:49 AM on 11.02.2018 about the presence of 10-12 boys with laptops and printer at Hanuman Sagar Agriculture Farm behind Bajrang Colony. The S.H.O. with the police team raided the aforesaid farm house at 09:30 AM. The boys present there ran away from there. A person named Laxman Das present there, who, on being enquired, disclosed the names of those boys. The laptops and (19 of 28) [SAW-1064/2018] printer of Scon company were seized. Twenty printed pages were also seized with a mobile phone of Nokia make, another mobile phone of Mi make and a SIM card of Airtel and another SIM card of Jio. Two admission cards, one Sohan Lal and another of Naina Ram, of REET-2017 Level-II examination, were also seized. Twenty printed pages were sent to the Secretary of the Board of Secondary Education, Ajmer, who in the enquiry report found that 11 out of them were containing few questions out of 96 pages of G-Series. Two candidates, namely, Sohan Lal and Naina Ram, whose admission cards remained absent in the examination. On further investigation, it was found that apart from Sohan Lal and Naina Ram, Pappu Singh S/o Kesa Ram Prajapat, Rajuram @ Rajveer, Sohanlal S/o Salagram, Nema Ram S/o Mohanlal, Jaspal Jat, Hari Shankar Prajapat, Suresh S/o Ummeda Ram Patel, Ashok Patel, Shrawan Ram Patel, Rajveer Jangu, Kishna Ram Jangu and Uddharam, were also present at the farm house. Charge-sheet against Rajuram, Suresh, Krishna Kumar, Pappu Singh and Ashok, who were arrested, was filed for offence under Sections 4, 6 and 6A of the Act of 1992, and investigation against remaining was kept pending. The conclusion of the investigation was that six candidates, namely, Suresh, Ashok, Sohanlal, Nema Ram, Jaspal and Hari Shankar, who were otherwise appearing in the REET- 2017 Level-II examination, fled away and were absent from the examination. They were, therefore, unable to make use of any part of the leaked question paper and the examination at Pali was conducted in peaceful manner.
In regard to the incident of Sidhmukh of Churu district, Kaur Singh, a teacher in the Government Senior Secondary School, Sidhmukh, informed the Convener of the REET-2017 Level-II (20 of 28) [SAW-1064/2018] examination of the District Churu, on cellphone that his son Rahul has received copy of the examination paper on WhatsApp of his mobile number. The information of this person was passed on to the Superintendent of Police, Churu, who, in turn, required the S.H.O. Police Station, Sidhmukh, to enquire into the matter. On enquiry, Rahul told that he received the WhatsApp message from his cousin Ashok from Nohar, who had gone to Nohar for appearing in the said examination in the Government College, Nohar. Ashok told him on telephone that he has received this examination paper on WhatsApp. The S.H.O., Police Station Nohar, was immediately informed. Since the internet services on that day were suspended, he could not send the WhatsApp message any further. The conclusion of the police, as conveyed by the Superintendent of Police, Churu, to the Inspector General of Police, CID Crime Branch of the State, vide letter dated 11.06.2018, was that this did not in any manner affect the process of REET-2017 Level-II examination and that the examination was conducted peacefully. The Superintendent of Police, Hanumangarh, also sent a similar letter to the D.I.G., CID (CB), on 09.07.2018. Ranveer Singh, the S.H.O., Police Station Nohar, received a telephonic message from the S.H.O., Police Station Sidhmukh that interrogation of Ashok be conducted, who is said to have received the leaked examination paper by WhatsApp message on his mobile phone. The police seized the mobile phone not only of Ashok Kumar but also of Rakesh Kumar and Kanhaiyalal. The conclusion of the police in the investigation was that the part of the examination paper that was found on the WhatsApp message of these candidates, was faint and was not legible and, therefore, it could not be determined whether or not (21 of 28) [SAW-1064/2018] the examination paper pertained to REET-2017 Level-II examination, however, that has not affected sanctity of the examination in any manner, which was peacefully conducted.
The Deputy Commissioner of Police, Jaipur West, Jaipur, sent a communication on 12.06.2018 to the Inspector General of Police, CID (CB), Headquarters, Jaipur, that one Shriram Sain S/o Shri Nand Kishore, R/o Plot No.43, Indra Verma Colony, Police Station Shastri Nagar, Jaipur, submitted a report to him on that date that his brother-in-law Rajendra Sain had appeared in the REET-2017 Level-II examination. One Bhoma Ram Jat, who was studying with his younger brother Brijendra Sain, assured him that he could get Rajendra Sain passed in the REET-2017 Level-II examination, as he knew someone who could help him, and that person was Ashish Kumar, R/o Jhunjhunu, who has taken the guarantee to get the examination passed for a consideration of Rs.3,00,000/- (Rupees three lakh). The complainant Shriram Sain stated that he, on being misled by him, gave original documents of Rajendra Sain with blank Cheque and a cash amount of Rs.34,000/-, to Brijendra Sain in Panipech area of Jaipur, who later stated that the same were given by him to Ashish. On 10.02.2018 Brijendra Sain further summoned complainant in Panipech area and demanded more money. On refusal by the complainant to give more money, Bhoma Ram avoided returning the original documents of his brother-in-law. He told the complainant that he has given those documents to one Satyendra Singh and C.R. Choudhary who was the Director of the Shekhawati Coaching Center. The investigation revealed that Bhoma Ram Jat had in this manner cheated 25 students and obtained their original documents and signed blank Cheques, (22 of 28) [SAW-1064/2018] which were recovered from the possession of Satyendra Singh, Ashish Kumar and Rajesh Kumar and thereafter the charge-sheet was filed against them on 09.04.2018. However, this did not affect the examination in any manner.
Significantly enough, apart from appellant Kamlesh Kumar Meena, no other candidate from any part of the entire State of Rajasthan has come forward to allege the leakage of the REET- 2017 Level-II examination. The incident reported at all the four places, namely, Jaipur, Pali, Nohar of Hanumangarh district and Sidhmukh of Churu district, indicates that the examination paper through WhatsApp message was circulated to a limited number of persons at about 09:00 AM, within one hour before the commencement of the examination, on the same day on which the examination was to take place. The appellant himself has stated that he did not pay any heed when he received few pages of the examination paper of G-Series through WhatsApp message on his cellphone at 09:05 AM and he rather proceeded to enter the examination center. Obviously, the appellant was not allowed to take the cellphone inside the examination center. The investigation by the police with regard to the cellphone recovered with 11 printed pages having few of the questions of G-Series from Pali, eventually led to arrest of six candidates, who too received the WhatsApp message at 09:00 AM on the very same day of the examination and none of them could appear in the examination and fled away. They were later arrested and charge-sheet against them was filed. The WhatsApp message received on the cellphone of three candidates at Nohar (Hanumangarh) was found not legible and it was this WhatsApp message, which was passed on to one Rahul in Sidhmukh (Churu), whose father happened to be a (23 of 28) [SAW-1064/2018] teacher in the Government Senior Secondary School, who immediately informed the police. From that end also, the WhatsApp message did not circulate. This is the entire material on which the whole process of the examination is sought to be questioned with the demand to cancel the same.
Even going by the allegation of the appellant that the leakage of question paper has resulted in marginal increase in average percentage of the marks secured by the candidates, this issue has been examined by the Board of Secondary Education even from this angle. The minutes of the meeting of the Coordination Committee of the respondent Board held on 24.04.2018, which was attended by all its 14 Members, have been placed on the record. The Coordinate Committee did not find any such material reflecting that the fairness of the examination was in any manner affected by the said leakage. The maximum marks secured by the candidates in the Child Psychology and two language papers of each of the languages, namely, Hindi, English, Sanskrit, Urdu, Sindhi, Punjabi, Gujrati, were analyzed and it was found that while in the subject of child psychology only one candidate could secure full marks, in the other language papers than Gujrati and Sindhi, maximum two or three candidates could secure full marks. Only in second paper of Gujrati, 10 candidates and second paper of Sindhi, five candidates secured full marks and the candidates who secured full marks are not confined to merely G-Series but they are spread in all different Series.
In this manner, the Board analyzed the data and concluded that out of total 30 marks of child psychology, the percentage of candidates securing 25 or more marks was hardly 0.20 and in other language papers except Urdu, Sindhi, Punjabi, the (24 of 28) [SAW-1064/2018] percentage of such candidates ranged between 0.61 to 4.63. However, since number of candidates taking Urdu, Sindhi, Punjabi subjects were very minimal, the percentage of those securing 25 and more marks in them was 16.23, 33.31 (one candidate only) and 29.26 (139 candidates). The analysis made by the Board thus also indicates that performance of the candidates, who wrote their examination on the question papers of all four Series, namely, E, F, G and H, have also been found almost equal. The Board has tried to explain all the aforesaid data in two different tables and two graphs. Elaborate steps taken by the Board have been detailed out in the minutes of the meeting of the Full Board that was held on 25.04.2018. It has been mentioned at agenda item no.10 of its minutes that Committees were constituted headed by the District Collectors in each of the Districts, the Special Operation Group of the Police was kept alert. The Superintendent of Police, Pali, informed the Board at 09:30 AM on 11.02.2018 itself about the recovery of incriminating material. The investigation did not reveal whether such material was used by anyone outside the farm house. There was no prima facie evidence to that effect. With regard to the complaint received in the office of the Chief Minister, the complainant was repeatedly informed to appear before the Committee but he failed to appear. Yashwant Kumar Saini, with whose signatures the complaint was made, was called by the Committee of the Board, but he denied having made any such complaint. The analysis of the data aforementioned and the marks secured by the candidates in papers of different series, were placed before the Full Board meeting.
(25 of 28) [SAW-1064/2018] The significance of the REET-2017 Level-II examination can be understood from this that a total 8,04,122 candidates submitted on-line applications, however, 7,31,323 candidates finally appeared in this examination in as many as 2253 examination centers. The duration of the examination was two- and-a-half-hour, which was conducted on 11.02.2018 between 10:00 AM and 12:30 PM. During the pendency of the writ petition, the respondent-Board was restrained from declaring the result, however, on dismissal of the writ petition, the result has been declared on 31.07.2018. A total of 2,53,239 candidates were declared pass, which is 36.24% of the total number of candidates writing the examination. The paper carried total 150 marks and minimum 60% marks were required to clear the examination, meaning thereby 90 marks out of 150 were required to be secured to qualify the examination. The Director, Elementary Education, Rajasthan, Bikaner, by order dated 03.09.2018 declared the cut off marks of different categories for the purpose of appointment. While declaring the cut off marks, 70% weightage was given to the marks secured in REET/RTET plus 30% to those of the graduation. Only such candidates who, secured cut off or more marks, are eligible to apply for appointment on the post of General Teacher Gr.III Level-II. As per the data furnished by the respondents in reply to the stay application, there are total 27632 vacancies of the Teachers Gr.III Level-II. Marks secured by the candidates in the REET/RTET thus played a vital role in the ultimate appointment of so large number of unemployed youths in the State and therefore the significance and sanctity of the examination is writ large.
(26 of 28) [SAW-1064/2018] In Gohil Vishvaraj Hanubhai, supra, the Supreme Court with reference to its earlier decision in Nidhi Kaim, supra, held that "where there are allegations of occurrence of large-scale malpractices in course of conduct of examination process, the State is entitled to cancel the examination.....". Those were the cases in which action of the State or its instrumentalities to cancel the examination on the basis of some reasonable material to indicate that the same was vitiated, was upheld. But the present one is the case where the appellant is the lone candidate who has come forward to seek issuance of writ of mandamus to cancel the entire examination. And here, we may again refer to useful observations of the Supreme Court in para 18 of the judgment in Gohil Vishvaraj Hanubhai, supra, while relying on its earlier decision in K. Shyam Kumar, supra, which read as under:-
"18. Normally while exercising the power of judicial review, the courts would only examine the decision- making process of the administrative authorities but not the decision itself. ...."
This court, in the realm of its power of judicial review, has to therefore decide whether the decision taken by the respondent- Board in going ahead with the result of the REET-2017 Level-II examination, was so proportionate and balanced, which a reasonable person of ordinary prudence, on available material would have taken. Out of two options available with the respondent authorities, namely, whether to cancel the whole examination or to go ahead with the same by declaring its result, applying the test of Wednesbury principle of unreasonableness, we do not find that the decision of the respondent authorities not to (27 of 28) [SAW-1064/2018] cancel the entire examination on the basis of whatever material was available with them, is so reprehensible that it defies the logic or accepted moral and ethical standards, which no reasonable person of ordinary prudence could, on the given material, take. This court would be justified to interfere with the decision of the respondents in not cancelling the entire examination only if it finds that the decision is disproportionate, i.e., if the court feels that it is not well balanced or harmonious and does not stand to reason. Even when the proportionality test is applied, it has to be accepted that the principle of proportionality is more concerned with the aims of the decision-maker. It has to be seen whether the decision-maker has achieved the correct balance. While therefore keeping in mind the larger public interest and considerations of the welfare State, the court has to consider the relative weightage of both the options; whether to go ahead with the result of the examination to make appointments or whether to cancel whole of the examination to hold the retest. When the one option is weighed against another, we find that the decision of the respondents in not cancelling the entire examination, to use the words of the Supreme Court in K. Shyam Kumar, supra, "has achieved more or less the correct balance or equilibrium."
Considering the magnitude of the examination and keeping in view the number of candidates appearing therein, cancellation of the entire examination would result in enormous exercise undertaken and huge efforts put in by all the functionaries of the State going waste. This would have catastrophic affect on future of large number of unemployed youths waiting for appointments that are going to be made on that basis and would derail the (28 of 28) [SAW-1064/2018] entire process of selection by a year or so. The material that has been placed on the record by the appellant or otherwise collected by the police, applying the test of Wednesbury principle of unreasonableness as also the doctrine of proportionality, is not so convincing and compelling as to justify such an extreme step. We thus answer all the questions posed above accordingly.
In view of the aforesaid discussion, although we differ with the reasons given by the learned Single Judge in dismissing the writ petition filed by the appellant but agree with the final conclusion arrived at by him in dismissal of the writ petition.
Consequently, the appeal fails and is hereby dismissed. This also disposes of stay application.
(GOVERDHAN BARDHAR),J (MOHAMMAD RAFIQ),J
//Jaiman//
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