Rajasthan High Court - Jaipur
Kamlesh Kumar Meena vs State Of Raj And Ors on 31 July, 2018
Author: Veerendr Singh Siradhana
Bench: Veerendr Singh Siradhana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 4521/2018
Kamlesh Kumar Meena Son Of Shri Kori Lal Meena, By Caste
Meena, Resident Of Ramjanpura, Bamanwas, Chandanholi, Sawai
Madhopur Rajasthan.
----Petitioner
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.
----Respondents
For Petitioner(s) : Mr. Vijay Choudhary
For Respondent(s) : Mr. S.Guru Krishna Kumar, Sr.
Advocate with Ms. Shikha Sandu, Mr.
N.M. Lodha, Advocate General with
Mr. Deepak Bishnoi, Mr. Shiv Mangal
Sharma, AAG, Mr. Anoop Dhand
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA
Order
31/07/2018
Stating himself to be one of the participants in the Rajasthan
Eligibility Examination for Teachers-2017 (for short, 'REET') Level-
II, conducted on 11th February, 2018; the petitioner has
approached this Court alleging leakage of question paper sufficient
to contaminate the written test and thus, need for re-test.
2. Shorn off unnecessary details, the essential skeletal material
facts are that the petitioner is one of the participants in the REET
examination-2017, wherein about 7-8 Lacs candidates also
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participated. It is pleaded case of the petitioner that at about 9.05
A.M. on 11th February, 2018, he received certain photograph on
his whatsapp cell number reflecting paper of 'G'-series of the
REET-2017 Level-II Examination. As per schedule of REET-2017
Level-II Examination was to be held on 11 th February, 2018, at
10:00 A.M. to 12:30 P.M. (in the morning shift).
3. Mr. Vijay Choudhary, learned counsel for the petitioner
streneously argued that REET-2017 (Level-II) Examination, was to
commence at 10:00 AM on 11 th February, 2018. Around 9:05 AM,
he received photographs of 'G'-series question paper, on his
whatsapp No.9785937091, that was forwarded from a whatsapp
group Namo-Lakhya. For such fake messages are circulated,
therefore, the petitioner was not very serious about the message
aforesaid for he was in a hurry to reach the examination centre
that was schedule to commence to 10:00 AM. Further, as per
guidelines the participating candidates were advised to reach at
the examination Hall before half-an-hour from the schedule time
the examination commenced. At around 10:00 AM it came as a
shock to the petitioner when he noticed that the 'G'-series
examination paper, he received in the examination hall was similar
to one which was messaged to him on his whatsapp number.
According to the counsel for the petitioner, this fact was also
confirmed by other participating candidates for they too received
such messages on their whatsapp numbers.
4. Referring to representations addressed to various authorities
seeking thorough probe in the leakage of question paper; learned
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counsel emphasized that no heed was paid to the complaints
despite of hue and cry by a large section of the candidates, who
participated in the REET-2017 Examination. Thus, the petitioner
has apprehension that due to leakage, certain candidates would
have upper hand in the examination securing more marks
jeopardizing his future, and therefore, the leakage of question
paper, needs a thorough probe in the circumstances aforesaid for
such an incident is an infringement of fundamental rights of the
petitioner guaranteed under Article 14, 16 and 21 of the
Constitution of India.
5. Referring to the opinions of the Apex Court of the land in the
case of All India Railway Recruitment Board Vs. K. Shyam
Sundar: 2010 (6) SCC 614 and Nidhi Kaim Vs. State of
Madhya Pradesh and Ors.:2016(7) SCC 615; learned counsel
asserted 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.
6. It is further pointed out that malpractices, academic fraud or
cheating which are gradually on a rise, is a threat to public trust,
reliability and credibility to the system as a whole. Hence, the
matter needs to be interfered with by this Court in exercise of
extra-ordinary original jurisdiction under Article 226 of the
Constitution of India.
7. In response to notice on writ application, the State-
respondents so also respondent No.3-Board of Secondary
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Education, Rajasthan, Ajmer; have filed their counter affidavits,
resisting the claim of the petitioner for no
complaint/representation was ever lodged by the petitioner and
the person namely, Yashwant Saini, who allegedly made
complaints/representations, denied to have registered the alleged
complaints/representations specifically stating that even the
signatures on the complaints/representations are not his
signatures.
8. Mr. N.M. Lodha, learned Advocate General, referring to
pleadings of the writ application under para 10 pointed out that
the alleged complaints/representations which have been placed on
record as Annexure-9 (collectively), are stated to be under the
signatures of one Yashwant Saini. According to learned Advocate
General, on an enquiry conducted by respondent No.3; Yashwant
Saini, made a specific statement in unequivocal terms that he
never filed any such representations and the signatures on the
representations were not his signatures. Thus, it appears that
someone else addressed the representations in the name of
Yashwant Saini. Further, the statement of Yashwant Saini,
recorded during the course of enquiry conducted by respondent
No.3-Board of Secondary Education, Rajasthan, Ajmer, which has
been placed on record as Annexure R-3/4; has not been refuted
by the petitioner in the rejoinder to reply to contents of para 10 of
the writ application.
9. Learned Advocate General would further submit that the
photostat copies of the postal receipts reflecting representations
addressed, were not made by Yashwant Saini for he specifically
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denied to have made any such complaints/representations. Hence,
the photostat copies of the postal receipts reflecting the name of
Yashwant Saini as complainant; are false documents, which have
been generated for reasons best known to the petitioner. Thus,
pleadings are false and contrary to the materials available on
record. And, the documents have been fabricated to somehow
seek indulgence of this Court in the process of Examination
involved herein, by misleading the Court. Hence, the writ
application merits rejection on that count alone.
10. Referring to contents of para 8 of the writ application,
learned Advocate General asserted that the petitioner was issued
examination paper of 'G'-series, which, to him was a sudden shock
for he received similar question paper on his whatsapp cell
number, whereas it has been specifically pleaded in the reply that
the petitioner was not given question paper of 'G'-series but was
furnished with question paper of 'H'-series, as would be evident
from his attendance sheet wherein the petitioner has affixed his
signatures. Thus, the mis-statement of facts made by the
petitioner is apparent on the face of the record. Hence, mis-
statement of a material fact on the part of the petitioner, is
sufficient to disentitle him of any indulgence under Article 226 of
the Constitution of India.
11. It is further urged that the copy of the examination question
paper of 'G' series, filed and placed on record as document
Annexure-7, is of a different participating candidate namely,
Ashish Kumar Jain. Thus, the writ application is full of false and
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mis-statement of incorrect and fabricated facts, pleaded only in
order to mislead this Court. A litigant approaching the Court of
law, suppressing material facts, would disentitle him for any relief
and law in this reference is no more res-integra.
12. Raising preliminary objections as to the very maintainability
to the writ application, learned Advocate General, pointed out that
before filing of the petition for writ for mandamus, the petitioner
was required to address a representation/make a demand of
justice. And, in order to overcome the requirement, the petitioner
has relied upon the alleged representations/complaints made by a
similarly situated candidate, and that fact has turned out to be
false for the alleged representations/complaints addressed in the
name of Yaswant Saini, have been disowned by none-else but
Yaswant Saini, in his statement recorded by respondent No.3-
Board of Secondary Education, Rajasthan, Ajmer, an undisputed
fact. Thus, the alleged complaints/representations, were made by
someone-else, unknown and that unknown has not approached
this Court for any indulgence.
13. It is further highlighted out that a glance of contents of para
12 of the writ application would further reflect that the writ
proceedings have been instituted on mere apprehension alleging
leakage of question paper to certain participating candidates, who
would have upper hand in the examination securing more marks
jeopardizing future of the petitioner. Thus, the claim of the
petitioner is based only on apprehension. There is no material
available on record that the petitioner, in fact, suffered any injury
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much less legal injury. Therefore, the writ proceedings instituted
on apprehension, deserves to be rejected at the very threshold. To
fortify the stand while resisting the claim of the petitioner, reliance
is placed on the opinion in the case of Dr. M.C. Mehta Vs. State
of Rajasthan and Ors.: ILR (Rajasthan Series), V.22, 1972,
Welcome Hotel & Ors. Vs. State of Andhra Pradesh And
Ors.:(1983) 4 SCC 575, Manohar Lal (Dead) By Lrs. Vs.
Ugrasen (Dead) By Lrs. And Ors.: (2010) 11 SCC 557, Dalip
Singh Vs. State of Uttar Pradesh & Ors.: (2010) 2 SCC 114,
State of Haryana and Anr. Vs. Chanan Mal etc.: AIR 1976 SC
1654, Ramswaroop Bagari Vs. State of Rajasthan and Ors.:
AIR 2002 Raj. 27, Ayaaubkhan Noorkhan Pathan Vs. State of
Maharashtra and Ors.: (2013) 4 SCC 465, Renu and Ors. Vs.
District and Session Judge Tis Hazri and Anr.: (2014) 15 SCC
731, Union of India and Ors. Vs. Rajesh P.U.,
Puthuvalnikathu and Anr.: (2003) 7 SCC 285, Joginder Pal
and Ors. Vs. State of Punjab and Ors.: (2014) 6 SCC 644,
Inderpreet Singh Kahlon & Ors. Vs. State of Punjab and
Ors.: AIR 2006 SC 2571, and Ran Vijay Singh and Ors. Vs.
State of U. P. and Ors.: AIR 2018 SC 52.
14. Mr. Shiv Mangal Sharma, AAG, representing respondent
No.3-Board of Secondary Education, Rajasthan, Ajmer, endorsing
the stand of the Advocate General for the State-respondents,
urged that qualifying REET Examination, is eligibility criteria for
appointment to the post of Teacher Grade-III. Applications were
invited from eligible candidates vide advertisement dated 12 th
October, 2017. Petitioner submitted his application and appeared
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in the examination involved herein on 11th February, 2018, at
examination Centre Government Saheed Amit Bhardwaj Senior
Secondary School, Manak Chowk, Jaipur. The examination was to
commence at 10.00 AM and as per instructions every
student/participant was required to enter in the examination
Centre, an hour before the schedule time of 10.00 AM. The
petitioner entered in the examination Centre as per schedule. He
was given Booklet Series 'H', and affixed his signatures on the
attendance sheet. These facts are fortified from documentary the
attendance sheet (Aneuxre-R-3/1).
15. Learned counsel further gave out that one Shri Naina Ram
addressed a representation under the banner of "Berojgar Sangh"
to the Hon'ble Chief Minister, Rajasthan, on 16 th February, 2018,
which in turn, sent to the Principal Secretary, Education, on 22 nd
February, 2018, for necessary action and consequently, the
Principal Secondary, Education, communicated the same to the
answering respondent No.3, on 23 rd February, 2018 (Annexure-R-
3/2). A Committee was constituted to probe into the matter on 6 th
March, 2018. Shri Naina Ram, was intimated to appear before the
Committee on 9th March, 2018, on his e-mail address from which,
he submitted the representation; but he did not appear on 9 th
March, 2018. Shri Naina Ram, was again served with another
notice on 9th March, 2018, calling upon him to appear before the
Committee on 16th March, 2018. However, he failed to turn up. In
the meanwhile, the present writ application was instituted and its
notice was served by the counsel for the petitioner.
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16. Learned counsel, therefore, urged that in the circumstances
aforesaid, it is evident that neither the complainant, who made
the representation, nor the person in whose name the
representations/complaints were filed, which have been referred
to in the writ application and in whose names, the issue has been
raised; are not before the Court. Further, despite notice, Shri
Naina Ram did not appear before the Committee that enquired
into the complaints/representations received in the Board. The
Committee, after due deliberation concluded that the
complaints/representations made in the name of Yashwant Saini
were not, in fact, complaints/representations lodged by Yashwant
Saini for he denied to have made any such
complaints/representations. Yashwant Saini, in no uncertain terms
stated that fake/forged signatures, reflecting him as complainant,
have been made on the complaints/representations. Moreover, no
material was placed before the Committee to sustain the
allegations of 'question paper leaked and became viral'. Hence, in
such circumstances, there is no effect of the false and fabricated
allegations made by the petitioner of question paper leaked.
17. Learned counsel further emphasized that similar information
was received by Governmental Enforcement Agency in District Pali
of Rajasthan, and on an enquiry it has been concluded that there
were six students involved in the episode, but none of them
appeared in the examination involved herein and as such there
was no effect of the so called 'paper leake', which allegedly
became viral, even in Pali. It is further stated that no complaint
has been received from any other part of the State of Rajasthan of
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any paper leak. That apart, even on the assertions made in the
writ application which are contrary to the materials available on
record; the matter was probed and an enquiry was made by the
Committee constituted even on the so called representations and
found no case of any so called question paper leakage. Hence, in
the circumstances aforesaid, the writ application deserves to be
dismissed.
18. Referring to the question Booklet of the examination involved
herein, learned counsel urged that REET Examination-2017,
involved herein, consisted of 596 questions, in a thick Booklet and
the alleged photograph is only a part of the question paper that
was allegedly leaked about 45 minutes before the examination
commenced. Thus, in the singular factual matrix aforesaid, the
writ application instituted on the basis of suspicion, cannot be
sustained. Further, the decision arrived at by the Committee of the
respondent-Board has taken a reasonable decision and no case is
made out for any indulgence by this Court in absence of any
material, inspiring confidence, to sustain the allegations of leakage
of question paper in the face of the fact that the alleged
complainant Yashwant Saini, has disowned the
complaints/representations and his signatures thereon.
19. Mr. Anoop Dhand, learned counsel appearing for the private
respondents, who participated in the REET Examination-2017,
involved herein and are awaiting declaration of the result; in
addition to the stand of the learned Advocate General and Mr. Shiv
Mangal, AAG; urged that in all 7,43,250 (Seven lac forty three
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thousand two hundred fifty) candidates appeared in the REET
Examination-2017. Except the petitioner, none has filed any
complaint/representation and/or writ application alleging 'question
paper leakage'. The examination involved herein was conducted at
2253 (two thousand two hundred fifty three) Centres in the State
of Rajasthan and no complaint of any 'leakage of question paper'
was received from any of the centres.
20. Further, as per the instructions, the participating candidates
were required to be present in the examination Centres an hour
before the scheduled time of commencement of the examination
i.e. 9:00 AM, for the examination was scheduled to commence at
10:00, and it so commenced.
21. It is pointed out that the petitioner after having received the
alleged question paper leaked at 9:05 AM, did not pay any heed
for such fake massages are being circulated on whatsapp
applications. That apart, there is no evidence and/or any material
available on record which could substantiate the alleged leakage of
question paper. Counsel also pointed out that the appearance of
the massage, leaking the question paper, allegedly received from
whatsapp group (Namo-Lakhya), placed on record; does not tally
with the details as would be reflected on whatsapp application on
the cell phones with the android operating software. According to
the learned counsel, it appears, that the petitioner, could not
perform well in the REET Examination-2017, involved herein, and
therefore, to stall the entire process, a false, fabricated story has
been designed, imputing leakage of question paper in the
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examination process and these facts can be verified from the
performance report of the petitioner. Namo-Lakhya is a
person/group unknown and did not participate in the REET
Examination-2017. Hence, the entire writ application is based on
false and fabricated creation of factual matrix and apprehension;
therefore, deserves to be dismissed on that count alone.
22. I have heard the learned counsel for the parties and with
their assistance perused the materials available on record so also
gave my thoughtful consideration to the rival submissions at Bar.
23. In the case of All India Railway Recruitment Board Vs.
K. Shyam Sundar (supra), the Supreme Court while dealing with
the issue of leakage of question paper, observed thus:
"50. We are also of the view that the High Court was in
error in holding that the materials available relating to
leakage of question papers was limited and had no
reasonable nexus to the alleged large scale irregularity.
Even a minute leakage of question paper would be
sufficient to besmirch the written test and to go for a
re-test so as to achieve the ultimate object of fair
selection."
24. In the case of Nidhi Kaim Vs. State of Madhya Pradesh
and Ors. (supra), taking note of gradual rise of malpractices,
academic fraud and cheating in examination, the Apex Court of
the land, observed thus:
"134. Examination malpractices, academic fraud or
cheating in the examination is as old as the examination
itself. Study made by the educationist has revealed that
these malpractices are gradually on the rise across the
world and has caused a threat to public trust in
reliability and credibility to the system as a whole. These
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malpractices occur within and outside the examination
halls and are perpetrated by the candidates, staff and
other external agencies before, during and after the
examination. Various kinds of strategies are innovated
and then applied to enable the candidate to clear the
examination any how. It has, therefore, destroyed the
piousness of the examination. With a view to prohibit
such activities, State of A.P. had enacted a legislation
but it was found inadequate to control such activities."
25. In the case of State of Haryana and Anr. Vs. Chanan Mal
etc.(supra), while considering requirement of a notice to the
concerned authority to discharge its legal obligation, ordinarily
such notices required to be served. The Apex Court of the land in
this reference under para 42, observed thus:
"42. We proceed to record our conclusions as follows:
1. The Haryana Minerals (Vesting of Rights) Act, 1973, is
valid, as it is not, in any way, repugnant to the provisions of
the Mines and Minerals (Regulation of Development) Act 67
of 1957, made by Parliament. Ownership rights could be and
have been validly acquired by the Haryana Govt. under the
Haryana Act.
2. No rights are shown by any petitioner before us to have
been conferred upon him under any lease or licence executed
or brought in accordance with the provisions of the Central
Act 67 of 1957, but, any petitioner, either before the High
Court or in this Court, now before us, who can establish any
such right governed by the provisions of the Central Act 67
of 1957 may take such proceedings before an appropriate
Court, if so advised as may still be open to him under the law,
against any such action or Govt. notification as is alleged to
infringe that right. We are unable to find any such right in
any writ petition, as framed, now before us.
3. Any petitioner who applies for a writ or order in the
nature of a Mandamus should, in compliance with a well known
rule of practice, ordinarily, first call upon the authority
concerned to discharge its legal obligation and show that it
has refused or neglected to carry it out within a reasonable
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time before applying to a Court for such an order even
where the alleged obligation is established."
26. In the case of Ramswaroop Bagari Vs. State of Rajasthan
and Ors.(supra), a Division Bench of this Court emphasizing the
necessity of notice preceding institution of writ application, observed
thus:
"2. It is clearly stated in the writ petition that the writ petition
has been filed on the basis of the newspaper report. It is settled
law that a writ petition on the basis of the newspaper report
cannot be maintained. In Laxmi Raj Shetty v. State of Tamil Nadu,
AIR 1988 SC 1274 : (1988 Cri LJ 1783) the Supreme Court held
that the facts stated in the newspaper are hearsay in the nature
and the same are inadmissible unless maker of statement is
examined and that judicial notice of the facts stated in the
newspaper cannot also be taken. A newspaper is not one of the
documents referred to in S. 78(2) of the Evidence Act by which
the allegation of fact can be proved and that the presumption of
genuineness attached under S. 81 of the Evidence Act to a
newspaper report cannot be treated as proof of the facts
reported therein. A statement of fact contained in a newspaper is
merely hearsay and therefore inadmissible in evidence in the
absence of the maker of the statement appearing in Court and
deposing to have perceived the fact reported. The Supreme Court
has also referred to the earlier decision reported in the case of
Samant N. Balakrishna v. George Fernandez AIR 1969 SC 1201.
3. As already noticed, the prayers made in the writ petition are in
the nature of mandamus. It is settled law that before maintaining
a writ petition in the nature of mandamus, the writ petition must
be preceded by a notice of demand and refusal thereof. In the
instant case, admittedly, no notice has been issued to any of the
respondents demanding the prayers mentioned in the writ petition.
Hence, the writ petition fails on this ground also and the same is
dismissed."
27. In the case of Ayaaubkhan Noorkhan Pathan Vs. State of
Maharashtra and Ors.(supra), while examining the issue of
maintainability of writ proceedings, including one instituted under
Article 226 of the Constitution, the person instituting proceedings must
be 'person aggrieved'. The Apex Court of the land in no uncertain terms
held that a stranger cannot be permitted to meddle in any proceedings
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unless he is an 'aggrieved person' and has locus-standi. At this
juncture, it will be profitable to take note of the contents of paras 9, 10,
13 to 15 and 17, which reads thus:-
"9. It is a settled legal proposition that a stranger cannot be
permitted to meddle in any proceeding, unless he satisfies the
Authority/Court, that he falls within the category of aggrieved
persons. Only a person who has suffered, or suffers from legal
injury can challenge the act/action/order etc. in a court of law.
A writ petition under Article 226 of the Constitution is
maintainable either for the purpose of enforcing a statutory or
legal right, or when there is a complaint by the Appellant that
there has been a breach of statutory duty on the part of the
Authorities. Therefore, there must be a judicially enforceable
right available for enforcement, on the basis of which writ
jurisdiction is resorted to. The Court can of course, enforce the
performance of a statutory duty by a public body, using its writ
jurisdiction at the behest of a person, provided that such
person satisfies the Court that he has a legal right to insist on
such performance. The existence of such right is a condition
precedent for invoking the writ jurisdiction of the courts. It is
implicit in the exercise of such extraordinary jurisdiction that,
the relief prayed for must be one to enforce a legal right.
Infact, the existence of such right, is the foundation of the
exercise of the said jurisdiction by the Court. The legal right
that can be enforced must ordinarily be the right of the
Appellant himself, who complains of infraction of such right and
approaches the Court for relief as regards the same. (Vide:
State of Orissa v. Madan Gopal Rungta, Saghir Ahmad and Anr.
v. State of U.P., Calcutta Gas Co. (Proprietary) Ltd. v. State of
West Bengal and Ors., Rajendra Singh v. State of Madhya
Pradesh and Tamilnad Mercantile Bank Shareholders Welfare
Association (2) v. S.C. Sekar.
10. A "legal right", means an entitlement arising out of legal
rules. Thus, it may be defined as an advantage, or a benefit
conferred upon a person by the rule of law. The expression,
"person aggrieved" does not include a person who suffers from a
psychological or an imaginary injury; a person aggrieved must
therefore, necessarily be one, whose right or interest has been
adversely affected or jeopardised. (Vide: Shanti Kumar R.
Chanji v. Home Insurance Co. of New York and State of
Rajasthan and Ors. v. Union of India and Ors.
13. This Court, even as regards the filing of a habeas corpus
petition, has explained that the expression, 'next friend' means
a person who is not a total stranger. Such a petition cannot be
filed by one who is a complete stranger to the person who is in
alleged illegal custody. (Vide: Charanjit Lal Chowdhury v. The
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Union of India and Ors., Sunil Batra (II) v. Delhi Administration,
Mrs. Neelima Priyadarshini v. State of Bihar, Simranjit Singh
Mann v. Union of India, Karamjeet Singh v. Union of India and
Kishore Samrite v. State of U.P.
14. This Court has consistently cautioned the courts against
entertaining public interest litigation filed by unscrupulous
persons, as such meddlers do not hesitate to abuse the process
of the court. The right of effective access to justice, which has
emerged with the new social rights regime, must be used to
serve basic human rights, which purport to guarantee legal
rights and, therefore, a workable remedy within the framework
of the judicial system must be provided. Whenever any public
interest is invoked, the court must examine the case to ensure
that there is in fact, genuine public interest involved. The court
must maintain strict vigilance to ensure that there is no abuse
of the process of court and that, "ordinarily meddlesome
bystanders are not granted a Visa". Many societal pollutants
create new problems of non-redressed grievances, and the court
should make an earnest endeavour to take up those cases, where
the subjective purpose of the lis justifies the need for it. (Vide:
P.S.R. Sadhanantham v. Arunachalam, Dalip Singh v. State of
U.P., State of Uttaranchal v. Balwant Singh Chaufal and Ors.,
and Amar Singh v. Union of India.
15. Even as regards the filing of a Public Interest Litigation,
this Court has consistently held that such a course of action is
not permissible so far as service matters are concerned. (Vide:
Dr. Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors.,
Dattaraj Natthuji Thaware v. State of Maharashtra and Neetu
v. State of Punjab.
17. In view of the above, the law on the said point can be
summarised to the effect that a person who raises a grievance,
must show how he has suffered legal injury. Generally, a
stranger having no right whatsoever to any post or property,
cannot be permitted to intervene in the affairs of others."
28. In the case of Renu and Ors. Vs. District and Session
Judge Tis Hazri and Anr.(supra), the Supreme Court, while
emphasizing that only an aggrieved party having enforeable legal right
could institute proceedings seeking a mandamus, observed thus:
"7. Tested on the touchstone of constitutionality and
equality of opportunity enshrined in Article 14 read with
Artice 16 of the Constitution, we have no hesitation in holding
that the aforesaid selections/appointments cannot be
sustained. Adherence to the rule of equality in public
employment is a basic feature of our Constitution and we shall
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be failing in our duty, if we overlook admitted irregularities in
the selections/appointments brought to out notice, merely on
the ground that the selections in question are only for Group
'D' posts. We are unable to persuade ourselves to agree with
the learned counsel for the petitioners that the petitioners
may be permitted to join and work for at least 89 days, the
period for which they were appointed. It is trite law that
unless an aggrieved party has an enforeable legl right under a
statute or rule, a mandamus cannot be issued to an authority
to do something. It is hard to believe that the petitioners
were not aware of the manner in which they were selected
and appointed within a span of a few days (without any
advertisement or interview). Their appointments being ex
facie illegal, issuance of appointment letters did not confer
any right on them. In our opinion therefore, the learned
Single Judge was fully justified in dismissing the petitioners'
writ petition."
29. In the case of Union of India and Ors. Vs. Rajesh P.U.,
Puthuvalnikathu and Anr.(supra), while dealing with the issue of
cancellation of recruitment and selection process en bloc held that
where it is possible to weed out the beneficiaries of irregularities or
illegalities, the selected candidates, whose selection was not vitiated,
there is no justification to deny their claim to such candidates. It will be
relevant to take note of the text of paras 3 to 5, which reads thus:
"3. While the candidates, including the respondent, were
anxiously waiting for orders of appointment, the respondent and
other selected candidates were informed by a Communication
dated 8.1.2001 that though they were selected for appointment
and were asked to undergo medical test - the selection process
for appointment already conducted and the list of selected
candidates has been cancelled by the Competent Authority of
CBI. It appears that, in the meantime, some of the unsuccessful
candidates, who appeared for selection in Hyderabad, filed an
application (OA No. 1034 of 2000) before the Central
Administrative Tribunal (for short 'CAT'), Principal Bench at
New Delhi, challenging the selections making allegations of
favoritism and nepotism on the part of officers in conducting
Physical Efficiency Test. The CBI seems to have opposed the
same refuting such allegations asserting that the impugned
process of selection was conducted under the overall supervision
of the Chairman, Recruitment Board and that the Physical
Efficiency Test was also conducted under the supervision of a
Superintendent of Police. As for the challenge made to the
written test, it was asserted by the CBI that sufficient steps
(CW-4521/2018)
18
were taken for proper conduct of the test though held in the
CRPF Ground on an evening and no favouritism whatsoever, was
shown to select anyone out of the way. The selection was,
therefore, said to have been strictly in accordance with the
governing instructions. It further transpired that the Director,
CBI, on receipt of complaints relating to the selections made,
constituted a Committee under the Chairmanship of a Joint
Director with two Deputy Inspector Generals of Police, CBI, as
Members to enquire into the same and on submission of their
Report and considering the same, ordered cancellation of the
recruitment process held at Hyderabad. Placing such
information before the CAT at New Delhi, dismissal of the OA,
as having become infructuous, seems to have been sought and
the Tribunal also dismissed the same as having been rendered
infructuous in the light of the subsequent turn of events.
4. While so, on receipt of the Communication dated 8.1.2001, the
respondent herein filed OA No. 327 of 2001 before the CAT's
Bench at Ernakulam, Kerala State, challenging the cancellation.
By an Order dated 10.4.2001, the same appears to have been
dismissed at the admission stage itself, observing that the
action relating to cancellation having been taken bona fide and in
public interest after due deliberation, does not call for
interference and there was no legitimate cause of action.
Aggrieved, the respondent moved the Kerala High Court in O.P.
No. 13548 of 2001(S). The Division Bench specifically notice the
nature of irregularities on the basis of which the selections
came to be cancelled. It appears that the stand on behalf of
CBI before the High Court was that though the allegations of
nepotism and favouritism were found to be baseless, in some
cases of evaluation of answer sheets incorrect answers were
found to have been awarded marks and in certain other cases
even correct answers were assessed to be wrong and denied
marks. In some cases, one or more of the answers seem to have
been not evaluated for awarding marks and overlooked, while
excess marks than allowed seemed to have been awarded in
certain cases for one or other questions. It appears that the
Committee constituted meticulously and thoroughly identified all
such cases individually and specifically found that 31 candidates,
who were otherwise ineligible, got in the process included in the
select list and an equal number of eligible candidates, thus, were
considered to have been denied of their legitimate claims. It is
for this reason, ultimately, the entire selection was found to
have been cancelled and not otherwise. The Division Bench
seems to have directed the production of the Committee Report
and on being satisfied about nature of irregularities that only
were noticed by the Committee on an exhaustive review of the
entire process and the answer papers of both the selected and
unselected candidates while categorically rejecting as baseless
the allegation of nepotism/favouritism, came to the conclusion
that there was no justification to cancel the entire selections
(CW-4521/2018)
19
when the impact of irregularities and lapses, which crept into
evaluation on merits could be identified specifically and was
found, on a reconsideration of the entire records, to have
resulted in about 31 specific number of candidates being got
selected undeservedly to the detriment of similar such number
of candidates. Repelling the plea that a person in select list has
no vested right to get appointed and finding the cancellation of
the entire selection to be arbitrary and unreasonable, the
Kerala High Court allowed Writ Petition and directed the CBI to
correct the mistakes in the selections by rearranging the select
list and completing the selection as per the re-evaluation found
to be necessitated by the very Committee constituted for
analyzing the position and in the light of its very report. Not
satisfied, the appellants have filed this appeal.
5. Heard the learned Additional Solicitor General for the
appellants and the learned Senior Counsel for the respondents.
On behalf of the appellants, it was contended that the cancellation of the selection was justified on account of the discrepancies said to have been found out by the Committee in the matter of valuation of the answer papers and that, therefore, there was no justification for the High Court to interfere in the matter. It was also contended that there were certain lapses in the matter of dictating the questions in English and Hindi, resulting in some advantage being gained by some candidates and placing certain others in a disadvantageous position. Non-uniformity of answer sheets and absence of official seals was also said to have undermined the fairness of the written examination. On behalf of the respondents, it was contended that there was no time gap in announcing questions in English and Hindi for discussion among candidates about possible answers; that as matter of fact, for every 10 candidates there was an invigilator to supervise the test and that such stand now taken was never taken when counter affidavit was filed before the Tribunal in the OA and that, therefore, the well considered decision of the Division Bench of the High Court does not call for any interference."
30. In the case of Joginder Pal and Ors. Vs. State of Punjab and Ors.(supra), while examining the issue of quashment of entire selection process for manipulations, forgery and fraud even after segregating the non-tainted candidates from tainted candidates; the Supreme Court allowed untainted candidates to join their duties denying benefit of intervening period, holding thus:
(CW-4521/2018) 20 "32. From the Report of the Committee dated February 08, 2007, constituted on the directions of this Court in the case of Inderpreet Singh Kahlon (supra), which has been accepted by the High Court, it is apparent that the Committee has not found anything against these 21 persons, in respect of whom we are deliberating on the issue involved. At the same time, on going through the process, the Committee was of the view that the selection process was vitiated and, therefore, the result warranted to be cancelled in its entirety, including that of these non-tainted persons as well.
33. The question that falls for consideration is as to whether the entire process could be labelled as vitiated because of purported manipulations, forgery and fraud? Or, to put it otherwise, once the non-tainted persons are segregated from tainted ones, would it still be justified to quash the entire selection, even when non-
tainted made into the service because of their merit?
34. It was argued by Mr. Raju Ramachandran and Mr. Gurminder Singh, learned senior counsel appearing for the Appellants, that the mandate of Inderpreet Singh Kahlon (supra) was limited to one aspect only, namely, to segregate the cases of tainted candidates from non-tainted ones, if it was possible. It was their submission that after this task was successfully accomplished by the Committee, there was no occasion to go into the second aspect, which was not part of any direction of this Court in Inderpreet Singh Kahlon (supra). It was further argued that the findings on two aspects are self-contradictory. Once it was accepted that some of the candidates were innocent, who entered the service by virtue of their merit and not because of any extraneous considerations and these candidates should be segregated as well, such a finding to the effect on the second aspect that the entire selection process was vitiated could not be arrived at.
35. We find force in the aforesaid argument advanced by the learned senior counsel appearing for the Appellant in these set of appeals. The two conclusions of the High Court appear to be antithetical. Once it is found that segregating tainted from non- tainted is possible and is achieved also, other conclusion is incompatible with the first one.
36. We have already narrated the background in which judgment in Inderpreet Singh Kahlon (supra) was rendered by this Court. Those were the appeals filed against the Full Bench judgment in Amarbir Singh (supra) where the Court had held that the action of the Government in cancelling the entire selection process was justified. This very conclusion of the Full Bench was challenged by the Appellants in inderpreet Singh Kahion (supra) with specific plea that it was not a case for cancelling the entire selection process and, in the first instance, the Court should (CW-4521/2018) 21 have attempted to find out as to whether cases of the candidates who were tainted could be segregated from those who were unblemished. The court was convinced with the submission. While setting aside the judgment and remanding the case back, the Court went to the extent of holding that by clubbing together tainted as well as non-tainted persons, two unequal classes were clubbed together and it amounted to violation of Articles 14 and 16 of the Constitution of India. It was also held that no attempt was made in this direction, namely, whether there was a possibility of segregating the two classes of persons. The Court found that as the relevant records were still available a fair investigation into the whole affair was possible.
40. In view of the above, the issue of entire selection process having been vitiated would have arisen only if the findings of the Committee were that it was not possible to distinguish the cases of tainted from the non-tainted ones and there was a possibility that all of them would have got the benefit of wrong doings of Mr. Sidhu and his accomplices. Fortunately for these Appellants, it is not so as they have been found innocent. The Appellants get ensconced, earning a safe place, once they are removed from the category of nefarious persons. Though the tainted candidates have rightly received their comeuppance, but the innocent persons cannot be punished with them. Thus, it is difficult to accept the fallibility conclusion of the High Court.
41. We have also gone through the reasons given by the High Court in the impugned judgment, in support of the conclusion that the entire process is to be treated as vitiated. We find that reasons are the same which were placed earlier before the High Court by the Government in Amarbir Singh's case (supra) and they were very much before this Court as well when the judgment in Inderpreet Singh Kahion (supra) was rendered. Without alluding to them in detail, we may say in nutshell that the reasons given pertain to the conduct and role of Mr. Sidhu and his accomplices who had taken money/bribes from some of the candidates or had given undue favour to some other candidates because of other influences. The material discussed is the allegations in various FIRs and statements of Mr. Jagman Singh, a confident and tout of Mr. Sidhu (who had become approver in the criminal case), and Ors. recorded under Section 161 of the Code of Criminal Procedure, 1973 and the cases in the criminal trial. However, even after noticing these very reasons, this Court had held that those who are innocent cannot be punished because of the misdeeds of Mr. Sidhu in showing favour to other tainted candidates.
42. There is yet another reason to hold that these persons who have come up clean, meaning thereby, who have entered the service by passing the examination on their own merits, should be allowed to continue in the Government service. We have already (CW-4521/2018) 22 mentioned in the earlier part of the judgment, while discussing the case of Inderpreet Singh Kahlon (supra), that the Court had not approved the recommendation of the High Court, on the basis of which the Government had acted, in respect of the judicial officers whose services were also terminated. It is not necessary to state in detail the reasons given by the Court while condemning the action of terminating the services of the judicial officers, which was taken in undue haste. The Court had also remarked that all these judicial officers were subjected to viva voce/interview test as well, which was conducted as per Rule 17(a)(iii) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970, and no breach of the aid Rule had been pointed out. The Committee which interviewed these judicial officers included a Judge of the High Court as well. The Court categorically observed that there may be some cases where marks had been given for extraneous considerations, but only because there was such a possibility, the same by itself, without analysing more, may not be a ground for arriving at a conclusion that the entire selection process was vitiated. The direction was, accordingly, given to consider the entire matter afresh.
43. After remand the Writ petitions of these judicial officers were decided by the High Court in the case titled as Sirandip Singh Panag v. State of Punjab 2008 (4) RSJ 288. The High Court had allowed those petitions. The said judgment of the High Court was challenged before this Court in the matter of High Court of Punjab and Haryana at Chandigarh v. State of Punjab and Ors. (2010) 11 SCC 684. This Court, by means of the aforesaid judgment, upheld the decision of the High Court. The Court specifically noted that after the directions in Inderpreet Singh Kahlon (supra), a Committee of three Judges was constituted which undertook this exercise and submitted its report. It was a fractured report where two learned Judges of the Committee were of the view that entire selection process was vitiated and one Judge had appended his dissent thereto on the ground that only those who were found to be tainted and were segregated by the Committee should be dismissed from service and not the non-tainted officers. No doubt, while upholding the directions of the High Court, this Court made it clear that it was not to be construed as giving seal of approval to the judgment of the High Court. At the same time, the Court also stated, in so many words, that in order to work out the equities and to do complete justice, that it was proper to allow those judicial officers to continue in service who were found to be untainted.
44. It would be apposite to quote the following portion of the said judgment in this behalf:
26. It is not in dispute any more that the candidates were given fresh opportunity to appear (CW-4521/2018) 23 for selection for the aforesaid post in the exams exclusively held for them in the year 2004. Out of 57 such candidates, 20 candidates were reselected and they were given benefit of original appointment.
As many of these candidates are the Respondents and have worked as judicial officers for some period and it has also not been proved or established completely against them that they had indulged in malpractice in examinations, we are of the view that they should also be given reappointment and posting orders to the existing vacancies in the State of Punjab and if no vacancy exists, Mr. Sharan has assured the court that the State will create supernumerary posts for them but they would not be entitled to get all the benefits as have been granted to them vide the impugned judgment.
27. However, it should not be construed that our judgment is giving seal of approval to the judgment of the Full Bench of the Punjab and Haryana High Court but with an intention to work out the equities and to do complete justice between the parties and in view of the earlier judgment of his Court in Kahlon case that tainted candidates be separated from untainted, meaning thereby that this Court did not accept the submission that it was not practically possible to do so; and further this Court had taken note of reselection held in 2004 in para 92 of the judgment, but held that the effect thereof would be subject to this case, this is the only via media, through which the Respondents could also be granted relief as it could not be established that even otherwise, they would have been declared as unsuccessful candidates. Precisely, that is the reason we have moulded the relief's granted to the Respondents by the High Court as our order is not likely to affect seniority of any of the judicial officers, who had already been working prior to the Respondents. We are conscious of the fact that by this procedure, there is no likelihood of any offshoots of the said order and hopefully the whole controversy triggered in the year 1998, would stand settled for all times to come.
45. There is yet another crucial development which needs to be mentioned here. In the first instance, it is the State which had taken a decision to cancel the entire selection process. However, after the remand order passed in Inderpreet Singh Kahlon's case (supra), in the exercise done by the Committee screening out the tainted from non-tainted candidates, the State came forward and showed its willingness to take back these candidates (CW-4521/2018) 24 who were non-tainted and were selected on the basis of their merit. A specific affidavit to this effect was filed in the High Court. To the same effect the affidavit has been filed before us also.
46. We are of the opinion that once those untainted officers, who were appointed under the same environment, have been allowed to continue, there is no reason to deprive this benefit of such recourse to the PCS (Executive Branch) and Allied Services.
47. We may note that the High Court has recorded in the impugned judgment that 66% cases were found to be of the persons given appointment who were tainted, which influenced the entire selection process. However, during the course of arguments, it was placed before us that the aforesaid percentage is worked out by taking the cases of direct recruits and nominated candidates together. If the figures are separately taken, out of 93 direct recruits, 76 have joined and only 10 are found to be tainted. In fact, the percentage of such tainted candidates in nominated category was much higher, i.e. 80%. It was, thus, argued that the cases of direct recruits cannot be taken along with those in nominated category, who influenced the decision in their matter as well. This is also a supportive and important fact which goes in favour of these Appellants viz. the non-tainted direct recruits.
48. The aforesaid discursive exercise prompt us to set aside the judgment of the High Court in respect of these persons with the direction that the Appellants be allowed to join the duties forthwith. It is, however, made clear that the intervening period during which they remained out of service shall not count for seniority or any other benefit. However, these persons shall be given the benefit of service rendered by them earlier viz. from September 1999 till May 22, 2002, when they actually worked, for the purpose of seniority and future promotion, etc. These appeals are partly allowed to the aforesaid extent. There shall, however, be no order as to costs."
31. In the case of Inderpreet Singh Kahlon & Ors. Vs. State of Punjab and Ors.(supra), the issue of separation of tainted from the innocent officers again fell for consideration, reiterating the earlier opinion, observed thus:
"59. Yet again in Union of India and Ors. v. Rajesh P.U., Puthuvalnikathu and Anr.: [(2003) 7 SCC 285), this Court observed: ".....Applying a 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 (CW-4521/2018) 25 others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go-by to contextual considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation. In short, the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling 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."
32. In the case of Ran Vijay Singh and Ors. Vs. State of U. P. and Ors.(supra), the Apex Court of the land, on a survey of earlier opinions, highlighting significant conclusions ruling out any role of sympathy or compassion, observed thus:
"30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are: (i) If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it; (ii) If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the Court may permit re- evaluation or scrutiny only if it is demonstrated very clearly, without any "inferential process of reasoning or by a process of rationalisation" and only in rare or exceptional cases that a material error has been committed; (iii) The Court should not at all re-evaluate or scrutinize the answer sheets of a candidate-it has no expertise in the matter and academic matters are best left to academics; (iv) The Court should presume the correctness of the key answers and proceed on that assumption; and (v) In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.
31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re- evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not (CW-4521/2018) 26 always possible. This Court has shown one way out of an impasse-exclude the suspect or offending question."
33. In the case of Dr. M.C. Mehta Vs. State of Rajasthan and Ors.: (supra); a Coordinate Bench of this Court reflecting on the conduct of the petitioner (Dr. M.C. Mehta), relying upon the opinion of the Apex Court of the land in the case of Messrs. Pannalal Binjraj and ors. vs. Union of India and ors: AIR 1957 SC 397, Udey Singh Todar Singh Vs. State of Haryana and ors.:AIR 1971 Punjab & Haryana 284, Naresh Shridhar Mirajkara and Ors. Vs. State of Maharashtra and another: AIR 1967 SC 1, The United Commercial Bank Ltd. Vs. Their Workmen: AIR 1951 SC 230, Ch. Moinuddin Vs. Deputy Director Military Lands and Cantonments, Eastern Command and Ors.: AIR 1956 Allahabad 684, Badridass Kanhaiya Lal and anr. Vs. The Appellate Tribunal of the State Transport Authority(Rajasthan) and Ors.:ILR (1959) 9 Raj. 869, observed that conduct of the litigant is of considerable importance and it is necessary to examine whether there is justification for the argument that disentitles the litigant to a remedy in exercise of Court's extra ordinary jurisdiction.
34. In the case of Dalip Singh Vs. State of Uttar Pradesh & Ors.(supra), the Apex Court of the land in no uncertain terms observed that jurisdiction under Article 32 and 226 of the Constitution being extraordinary, equitable and discretionary, and therefore, it is imperative that the petitioner invoking the jurisdiction comes with clean hands without concealing or supressing any material fact while seeking relief. It will be relevant to take note of the text of para 10, wherein the Suprme Court, held thus:
"10. In K.D. Sharma v. SAIL, the court held that the jurisdiction of the Supreme Court under Article 32 and of the High Court (CW-4521/2018) 27 under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the Writ Court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. The same rule was reiterated in G. Jayshree and Ors. v. Bhagwandas S. Patel."
35. In the case of Manohar Lal (Dead) By Lrs. Vs. Ugrasen (Dead) By Lrs. And Ors. (supra), the Supreme Court examining the circumstances in the backdrop of suppression of facts and misleading the court, observed thus:
"52. In view of the above, we are of the considered opinion that Shri Manohar Lal did not approach the Court with discloser of true facts, and particularly, that he had been allotted the land in the commercial area by GDA on the instruction of the Chief Minister of Uttar Pradesh.
53. It is a fit case for ordering enquiry or initiating proceedings for committing criminal contempt of the Court as the parties succeeded in misleading the Court by not disclosing the true facts. However, we are not inclined to waste court's time further in these cases. Our experience has been that the so-called administration is not likely to wake-up from its deep slumber and is never interested to redeem the limping society from such hapless situations. We further apprehend that our pious hope that administration may muster the courage one day to initiate disciplinary/criminal proceedings against such applicants/erring officers/employees of the authority, may not come true. However, we leave the course open for the State Government and GDA to take decision in regard to these issues and as to whether GDA wants to recover the possession of the land already allotted to these applicants in commercial area contrary to the Land Policy or value thereof adjusting the amount of compensation deposited by them, if any."
36. In the case of Welcome Hotel & Ors. Vs. State of Andhra Pradesh And Ors.(supra), reiterating the principle that one who approaches the Court and obtains interim order(s) suppressing a (CW-4521/2018) 28 material fact; is not entitled to any relief, the Supreme Court, held thus:
"3. Dr. L. M. Singhvi, who led on behalf of the petitioners made two submissions which have nothing to do with the validity or legality of the impugned Orders. He submitted that the Court should give a direction to the State Government to re-examine the prices of inputs and overhead charges so as to arrive at such maximum price of the scheduled commodities as to ensure a reasonable return on the investment which would render the restriction on the fundamental right to carry on trade, reasonable and satisfy Article 19(1)(g) of the Constitution. He next submitted that there are certain directions in the 1978 and 1981 orders which are impossible of compliance and, therefore, the petitioners should be heard before they are compelled to implement the conditions. Neither of the submissions has any impact on the validity of the impugned Orders. It may, however, be pointed out how the petitioners suppressing material facts succeeded in obtaining an ex-parte stay order. In the counter-affidavit filed by one Mr. D. Muralikrishna, Director of civil Supplies, it was stated that after the Order dated December 11, 1980 was issued the hoteliers resorted to some agitation which led to the Minister of civil Supplies calling a meeting of the hoteliers. What transpired at this meeting may be extracted from the counter-affidavit:
The Minister for civil Supplies therefore convened a meeting at Hyderabad on 31.12.80 with the representatives of hoteliers all over the State and the Joint Collectors. At the said meeting all the issues involved were thoroughly discussed. After prolonged discussions, the hoteliers of the districts have agreed unanimously for reducing the prices in respect of 6 items of foodstuffs excluding meals and an undertaking to that effect was signed by the hoteliers at 1.30 a. m. on 1.1.1981.
A copy of the undertaking is produced at Annexure 'B' to the counter-affidavit which inter alia also provided that the rates of the scheduled items determined with the consent of the hoteliers will be reviewed after three months. What is now demanded is that the State Government should examine the prices of inputs and overhead charges and determine afresh the maximum prices of the scheduled items, which was very much an integral part of an over all agreement between the State Government and the hoteliers. After suppressing this material fact from the Court in the petition, the petitioners obtained an ex-parte stay order on January 12, 1981 and this was suppression of such a material fact as would disentitle the petitioners to any relief at the hands of (CW-4521/2018) 29 this Court. That apart review at reasonable interval is implicit in any price fixation measure.
7. It was next contended that the maximum price of scheduled items fixed under the impugned orders is economically unprofitable and the same have been arrived at without scientifically examining the price of inputs and overhead charges and the reasonable return on investment and therefore, the exercise of fixing maximum price suffers from the vice of arbitrariness and must be declared unconstitutional as being violative of Article 14. While canvassing the submission, some attempt was made both on the side of the petitioners as well as on the side of the State to take us through the labyrinth of the tables drawn up by both side showing prices of inputs and overhead charges. We declined to be involved in the vortex of this cost accountant's exercise as we are neither experts of the subject nor we consider it necessary to undertake this exercise. The argument proceeded that the prices of inputs have escalated so high that the maximum prices determined by the impugned orders have become uneconomical. For this malaise, petitioners have to thank themselves because it was an integral part of their agreement with the Minister of civil Supplies on December 31, 1980 that the maximum prices fixed by the impugned orders would be re-examined on the expiration of the three months from the date of the agreement. Instead of honouring this agreement, the petitioners within a span of 12 days rushed to this Court and obtained ex-parte stay order wholly suppressing the fact that the orders impugned in these petitions have already been replaced by the latest order dated January 5, 1981. Petitioners who have behaved in this manner are not entitled to any consideration at the hands of the Court."
37. Applying the principle deducible from the law declared by the Apex Court of the land as referred to hereinabove, to the factual matrix to the case at hand; it is evident that the petitioner himself did not submit any representation/complaint alleging to have received any message on whatsapp application, on his cell number as to the leakage of question paper.
38. The petitioner has relied upon complaints/representations made by one Yashwant Saini, which have been placed on record as Annexure-
(CW-4521/2018) 30 9 (collectively). It is also not disputed that Yashwant Saini, disowned the alleged complaints/representations and his signatures as well rather stated his signatures to be forged. Referring to the alleged representations/complaints, Yashwant Saini, in no uncertain terms stated that he is not scribe to the complaints nor the complaints/representations were in his hand writing. Yashwant Saini, had gone to the extent of making a statement to the effect that he did not receive any message on whatsapp application on his cell No.9875291685. Moreover, it was only after writing the examination;
the similarity was detected in the question paper of 'G' series. Further, Yashwant Saini, was not aware of cell number of the petitioner with whatsapp application.
39. From the pleadings of the parties and materials available on record, it is also reflected that the candidates whose names have been mentioned namely, Ajay Meena, Shri Pooranmal Dhayal, Shri Mehram Pipla and Shri Avdesh Kumar Meena, did not appear in the examination.
40. It is also not disclosed as to how the petitioner along with the candidates aforesaid, who received the same message on their whatsapp application, were benefitted and its effect or impact on the examination. There is no evidence brought on record that the alleged message as to leakage of question paper had gone viral. Furthermore, the Governmental Enforcement Agency, after investigation in the matter in Pali District, found six students involved but none of them appeared in the examination involved herein. But for the petitioner, none has approached this Court with complaint of any leakage of question paper.
The objection as to appearance (format) of the message on whatsapp (CW-4521/2018) 31 application on the cell phone with androids operating software; have not been responded to.
41. Admittedly, respondent No.3 did carry out an enquiry into the complaints/representations alleging leakage of question paper in the REET Examination-2017, involved herein. On a consideration of the materials available on record and statement deposed by Yashwant Saini, in whose name representations/complaints were addressed; the Committee did not find any leakage of question paper and there is no evidence that leakage, if any, had gone viral. That apart, Yashwant Saini, declined to have lodged any complaint/representation. The petitioner on whose cell-phone allegedly the question paper was leaked on his whatsapp message, did not lodge any complaint/representation.
The specific stand on these material facts in the response, has not been refutted by the petitioner in rejoinder.
42. In the face of the fact that the complaints/representations were addressed in the name of Yashwant Saini, who had disowned the complaints/representations, therefore, this Court is not inclined to make a fishing and revoing enquiry into the allegations of leakage of question paper in the instant writ application instituted by the petitioner relying upon the representations/complaints made by Yashwant Saini, who has declined to have made any complaint/representation.
43. The petitioner also did not dispute the fact that he was furnished with 'H' series question paper Booklet in the examination involved herein whereas the alleged message on whatsapp application, leaking the question paper, was of 'G' series. The questions allegedly leaked did not tally with the question paper of 'H' series. Be that as it may, the (CW-4521/2018) 32 petitioner learned about alleged leakage of question paper only after the REET Examination-2017, was over, as would be evident from statement of Yashwant Saini.
44. The instant writ application has been instituted by the petitioner, placing on record the alleged photocopies of the messages leaking the question paper of the examination involved herein of 'G' series, while he was furnished with question paper of 'H' series. Further, the fact that there was similarity in the questions of 'G' series, which were leaked on his whatsapp application message by Namo-Lakhya group; is not substantiated by the statement of Yashwant Saini, who is stated to be the complainant. Moreover, Yashwant Saini, in his statement expressed total ignorance about the cell number with whatsapp application, of the petitioner. Yashwant Saini, did not receive any message on his whatsapp messenger involving the leakage of question paper as alleged by the petitioner. Thus, pleadings of the writ application are contrary to the statement deposed by Yashwant Saini, before the Committee that was constituted by respondent No.3, to enquire into the allegations of alleged leakage of question paper of REET Examination-2017, involved herein. The basis of pleadings and institution of writ application are; the complainants/representations made in the name of Yashwant Saini whereas Yashwant Saini has declined to have made any representation/complaint and had gone to the extent to state that the representations/complaints, relied upon, did not bear his signatures.
45. No notice/representation was addressed by the petitioner before institution of the instant writ application seeking mandamus, which ordinarily is requirement of procedure. That apart, the petitioner has not approached this Court with clean hands for he did not make any (CW-4521/2018) 33 complaint/representation of leakage of question paper in the REET Examination-2017, involved herin. The representations/complaints brought on record as [Annexure-9 (collectively)], have been stated to be by Yashwant Saini, who has disowned the statement in toto, including his signatures on those alleged complaints.
46. In absence of any substantial material on record, the allegations of question paper leaked, in the examination process involved herein and had gone viral; is a statement based on imagination and apprehension.
Furthermore, the petitioner himself did not pay any heed to the message that was received on his whatsapp messanger, allegedly leaking the question paper, for the petitioner believed it to be a fake message which are forwarded without any application of mind and correctness of such messages. The petitioner, thus, has failed to substantiate the allegations of quesion paper leakage and the examination process contaminated.
47. The REET Examination-2017, involved herein, was conducted throughout the State of Rajasthan at as many as 2253 Centres wherein 743250 candidates participated. But for the petitioner, none has approached this Court with such allegations of question paper leakage nor there was any complaint received from any of the Centres aforesaid. Thus, on a cumulative consideration of the factual matrix and the attendant circumstances so also in view of the materials available on record; this Court is not pursuaded to hold that there was any question paper leakage in the REET Examination-2017, involved herein.
48. In the singular facts and circumstances of the case at hand, indisputably, the petitioner did not address any (CW-4521/2018) 34 representation/complaint, alleging leakage of question paper in the examination process involved herein. That apart, the petitioner having received the alleged question paper leaked, did not pay any heed for such messages being circulated without any basis on whatsapp application messanger. Further, the petitioner received the alleged question paper leaked of 'G' series whereas while writing the examination involved herein, he was furnished with series 'H' question paper Booklet. Even after, the petitioner had learnt the alleged similarity in the question paper of series 'G', after writing his examination; he did not address any representation/complaint to the concerned authorities. The entire writ application is based on the alleged representations/complaints made by Yashwant Saini, who disowned the representations/complaints, including his signatures thereon. Hence, in the factual matrix aforesaid, the petitioner was required to address a notice/representation/complaint on the material facts to the concerned authorities for redressal of his grievances, if any.
49. Admittedly, writ application has been instituted by the petitioner relying upon the complaints/representations placed on reocrd as Annexure-9 (Collectively), addressed by Yashwant Saini, who has disowned the complaints and his signatures on those complaints/representations. These facts specifically pleaded in the counter-affidavit/reply have not been refuted. Thus, the very basis and factual foundation laid to sustain the claim of question paper leaked, falls. The petitioner has also not responded to the specific objections raised as to the format of message that appeared on whatsapp messenger for it lacks certain vital information, which are reflected by virtue of android operating system itself. In the case of K. Shyam Sundar (supra), the observations made by the Apex Court of the (CW-4521/2018) 35 land were entirely in a different and distinguishable factual matrix, which related to leakage of question paper. The petitioner has failed to lay any factual foundation to sustain the allegations of leakage of question paper, in the examination process involved herein. Hence, the principle propounded by the Supreme Court has no application to the facts of the case at hand.
50. Similarly, the principle as culled out in the case of Nidhi Kaim (supra), cannot be applied to the singular facts of the case at hand, which lacks the very factual foundation in the face of denial of any complaint/representation made by Yashwant Saini and the petitioner having not resorted to any action even after having learnt about the alleged leakage of question paper until institution of the writ petition. Moreover, at the outset, the petitioner did not disclose the fact that the alleged leakage of question paper was on the whatsapp application messenger of Yashwant Saini, who had declined the very fact of lodging any complaint and even his signatures on those complaints/representations. Further, the enquiry conducted by respondent No.3, even on the representations/complaints allegedly lodged by Yashwant Saini; has resulted into negative for there was no question paper leakage. Similar is the report of the Governmental Enforcement Agency at District Pali. But for the petitioner, none has instituted any writ application either before this Bench or at the Principal Seat, Jodhpur, on this count. No complaint/representation of alleged leakage of question paper was received from any of the 2253 (two thousand two hundred fifty (CW-4521/2018) 36 three) Centres, wherein examination conducted. There is no material on record to sustain the plea of question paper leakage in the examination involved herein.
51. For the reasons and discussions aforesaid, the writ application is devoid of any substance and lacks in merit, and therefore, deserves to be dismissed.
52. Ordered accordingly.
Interim order dated 28th February, 2018, stands vacated.
(VEERENDR SINGH SIRADHANA),J Pcgupta, PS Powered by TCPDF (www.tcpdf.org)