Allahabad High Court
Dhirendra Kumar 25 Others vs State Of U.P. And 4 Others on 23 October, 2018
Equivalent citations: AIRONLINE 2018 ALL 4578
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED ON 12.10.2018 DELIVERED ON 23.10.2018 Case :- WRIT - A No. - 15588 of 2018 Petitioner :- Dhirendra Kumar and 25 Others Respondent :- State Of U.P. and 4 Others Counsel for Petitioner :- Siddharth Khare,Shri Ashok Khare, Senior Advocate Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sangeeta Chandra,J.
1. This writ petition has been filed by the petitioners praying for quashing of the written examination held on 18th and 19th of June, 2018 by the Chairman, U.P. Police Recruitment and Promotion Board, Lucknow (hereinafter referred to as "the Recruitment Board") for the post of Constable Civil Police and PAC pursuant to the advertisement dated 14.01.2018 and for a writ in the nature of mandamus directing the respondent authorities to hold fresh written examination for the post of Constables in pursuance of the advertisement dated 14.01.2018 within a time frame to be stipulated by this Court.
2. Heard learned Senior Advocate Shri Ashok Khare assisted by Shri Siddharth Khare for the petitioners and Shri Vikram Bahadur Yadav, learned standing counsel appearing on behalf of the State-Respondents.
3. The facts as stated in the writ petition are as follows:-
4. An advertisement dated 14.01.018 was issued inviting applications for a total number of 41520 posts of Constable, Civil Police and PAC. The petitioners No. 1 to 19 applied under the OBC Category, petitioners No. 20 to 25 applied under the General Category and petitioner No. 26 applied under SC Category. The process of selection comprised of a written examination followed by documents verification and physical standard test thereafter followed by physical efficiency test and medical examination.
5. The petitioners were issued Admit Cards and they wrote the written examination held on 18.06.2018 and 19.06.2018 in two separate shifts on the said two dates. Each of the question papers were divided in to four sections: (I) General Knowledge comprising of 38 questions; (ii) Numerical and Mental Ability comprising of 38 questions; (iii) Mental Aptitude/I.Q. And Reasoning Ability comprising of 37 questions; and (iv) General Hidni comprising of 37 questions. There were a total of 150 questions to be attempted in maximum time of 120 minutes.
6. The written examination in each shift on the two dates had 24 sets of question papers. The question series range No. 01-24 was distributed in the first shift on 18.06.2018, and question series range No. 25 to 48 was distributed in second shift on 18.06.2018. Question series range No. 49 to 72 was distributed in the first shift on 19.06.2018 and question series range No. 73 to 96 was distributed in second shift on 19.06.2018.
7. After the written test was held on 18th and 19th of June, 2018, it was reported in the newspapers that the question papers distributed in first shift at different Centres in the State of U.P. on 18.06.2018 were identical to the question series range distributed in the second shift held on the same date i.e. on 18.06.2018 and similar was the case on 19.06.2018.
8. The petitioners have given the example of one College situated at Jhalwa, Allahabad i.e. Guru Madhav Prasad Shukla Inter College. It has been alleged that similar discrepancies were found in nearly 50 other Centres all over the State of U.P.
9. From paragraphs 15 to 25 allegations have been made with respect to several of the petitioners individually and copies of the question papers distributed to them have been filed at page Nos. 101 to 1226 of the writ petition as various annexures.
10. It has further been alleged that apart from the aforesaid discrepancy one question booklet series No. 39 did not have questions of Maths and Hindi but questions of General Knowledge and Reasoning were repeated. It has been alleged that a complaint was made by the students to the Invigilators but they refused to help.
11. It has further been alleged that because of the question papers in the first meeting being repeated in the second meeting the candidates who appeared in the second shift were at a distinct advantage against such candidates who appeared in the first shift and got a different set of question papers. It has been alleged that such candidates of the second shit would naturally secure much higher marks in view of the fact that they already knew the answers of the question papers which were wrongly distributed in the first shift.
12. It has further been alleged that earlier the written test was held for recruitment of the Constables in a single shift at the one and the same time in different Centres all over the State of U.P. But the amended rules left it open to the discretion of the Recruitment Board whether to hold the examination in one single shift or in different shifts. The Recruitment Board having chosen to hold the written examination in different shifts was duty bound to ensure the sanctity of the examination to be maintained which it failed to do.
13. It has been alleged that competitive examination requires relative merit and the ability of all candidates to be tested on the same parameters and there existed no justification to hold the competitive examination regarding the same selection/post in different shifts with different question papers. There was no uniform standard for all candidates and therefore, the Police Recruitment Board had to announce a method of Rationalization/Normalization /Moderation which has led to further complications.
14. It has further been alleged that till date the result of written examinations has not been declared and this Court should therefore interfere and set aside the written test held on 18.06.2018 and 19.06.2018 all over the State of U.P.
15. This Court while entertaining the writ petition at the stage of fresh for hearing had directed the Additional Secretary of the Recruitment Board to examine the allegations made in the writ petition and file his personal affidavit in response to the same by its order dated 26.07.2018. The Additional Secretary of the Board filed his personal affidavit on 21.08.2018.
16. At the time of hearing before me the learned Senior Counsel appearing for the petitioners referred to earlier orders passed by this Court and also to the affidavits filed by the State-Respondents on 29.08.2018 and 26.09.2018. The Personal Affidavit of the Additional Secretary to the Recruitment Board refers to a meeting of responsible officers of the Board on 18.09.2018 which has considered the order passed by this Court and also the original scheme of the Service Rules of 2008 and as it stood amended on 17.08.2017 under the new Rule 15(2) notified on 17th of August 2017. It has been argued that this Court had prima facie come to the conclusion that the method adopted by the respondents was iniquitous and arbitrary and therefore, directed the respondents to reconsider the matter although it did not mention in its earlier orders as to on what issue the consideration was to be made but it was understood by the learned counsel for the parties and the representative of the Recruitment Board who was present during the course of hearing that this Court had given an opportunity to the respondents to take a decision as to whether to go ahead with the results of the written examination held on 18.06.2018 and 19.06.2018 or to cancel the same.
17. It has been submitted by Shri Khare that from the affidavits filed by the State-Respondents it is evident that they are unwilling to reconsider their decision and therefore, this Court should interfere in the matter and quash the written examination which had been held in an arbitrary fashion with 33 sets of question papers.
18. Shri Khare has placed reliance mainly upon paragraph Nos. 38 and 39 of his writ petition, that there was no justification to hold the competitive examination with regard to the same selection i.e. the selection for the post of constable in four different shifts on different dates with different question papers and since there was no uniform standard to determine the ability of candidate, the whole attempt at competition among such candidates was a purposeless exercise.
19. He has referred to the advertisement and the written test being in four parts. Part - I dealt with General Hindi, Part - II dealt with General Knowledge, Part - III dealt with Numerical and Mental ability and Part-IV dealt with Mental Aptitude/Intelligence Quotient and Reasoning ability.
20. Learned Senior Counsel has repeatedly referred to 33 sets of question papers being given to the candidates and has also referred to the practice adopted in the High School and Intermediate Examination or even by the Staff Selection Commission or Railway Recruitment Board, where the same set of questions were required to be answered by all candidates, but only serial numbers of such questions was jumbled up and four or five different questions booklet series were devised to avoid the possibility of candidates sitting next to each other resorting to unfair means and copying. He has argued that even in the High School and Intermediate Examination nearly 48 lac candidates appear but 33 different sets of question papers are not set for the candidates to attempt. Because the question papers were completely different, there would also be difficulty in rationalization/ moderation /normalization of the degree of difficulty for each set of question papers which would further create complications in declaration of final results and lead to unnecessary and unavoidable litigation in future.
21. He has also argued that howsoever efficiently such moderation is carried out, since in competitive examination only a narrow margin determines the fate of a candidate, there is always a possibility of erroneous results with respect to individual candidates. He has referred to earlier selections held by the Recruitment Board itself since 2008 where the written test was held on one and the same day simultaneously all over the State of U.P. in all districts and similar number of candidates appeared as have appeared in the current selection, and there was no difficulty faced in holding such test.
22. It has also been pointed out that not only were candidates' abilities assessed on 33 different sets of question papers for selection held for the same post, but there was also negative marking for wrong answers.
23. The learned counsel for the petitioner has pointed out that the results have not yet been declared and the selection has not been finalized and it cannot be said that the petitioners who have come before this Court are those persons who willingly participated in the selection and agreed to the procedure adopted by the Recruitment Board and therefore are now Estopped from challenging the same. The result has yet to be declared and several writ petitions are pending with regard to incorrect marking adopted by the Board, on account of wrong answer keys and there is also the issue of normalization/ moderation that is pending before this Court in several other writ petitions. The only difficulties that the Board has pointed out are that of a practical nature but what exactly such practical difficulties are, have not been stated clearly in the affidavit. There are several Boards like Railway Recruitment Board and BSRB which hold similar competitive examinations and several lacs of candidates participate all over the country. Nowhere it is found that 33 sets of question papers or even less number of question papers are set with different degrees of difficulty for candidates who participate in the same competitive examination for the same post. The question booklets series may be four or five at the maximum where the questions are not different but only the serial numbers of such questions are different in each of booklet series. The Police Recruitment Board has however adopted a novel method of setting 33 sets of question papers which are different from each other altogether.
24. The learned senior counsel has referred to the personal affidavit filed on 26.09.2018 regarding a meeting of responsible Officers of the Board held on 18.09.2018 which has considered the earlier orders passed by this Court and also the original scheme of the Service Rules of 2008, as it was amended, under the new Rule 15(2) as notified on 17th of August 2017. It has observed that the Board has been given the power to determine the procedure to be adopted by it for holding the selection and there was no need to interfere in it now.
25. It has been submitted by the learned Standing Counsel Shri Vikram Bahadur Yadav that no doubt there was some discrepancy in distribution of question booklets at two Examination Centres but the Board has rectified this discrepancy by cancelling part of the written examination and in all probability the written examination for 10 lac candidates who were affected by the wrong distribution of the question booklets in the second meeting exam on 18th and 19th of June, 2018 shall be held in the last week of October, 2018.
26. It has been stated in the personal affidavit that since the power is vested with the Board to determine the method of selection as given in the amended Rule 15(2), the Board has exercised its power after taking into account the circumstances in which selection has to be held and the logistics involved. There were twenty two lacs and fifty seven thousand candidates who were scheduled to appear in the written examination.
27. It has also been mentioned that no candidate has pointed out any grievance regarding leaking of question papers or any other malicious exercise of power by the Board. The only discrepancy that had occurred was with respect to the distribution of wrong question papers one at two centers one at Allahabad and another at Etah for the second meeting, and that grievance has been addressed by the Board itself. The Board has expressed its inability to hold written examination on one date at several places as suggested by the Court, saying that it is not logistically possible to accommodate 22, 57,000 candidates.
28. The learned Standing Counsel has referred to the counter affidavit filed by the respondents No. 2 to 5 and paragraph 4, 5, 6, 7, 14 and 16 thereof. It has been argued that 22,78,184 candidates had applied. Only 18,94,766 candidates actually attempted the written test which was held in 56 districts at different centres on 18.06.2018 and 19.06.2018. There were 860 examination centres. The Recruitment Board had taken into account the practical difficulties that were faced in earlier selections for filling up the posts of constables and took an informed decision not to hold the selections in one sitting simultaneously at different centres all over the State of U.P. Looking into the number of candidates who had applied, they were divided into four batches and written test was held on 18.06.2018 and 19.06.2018 in two shifts and question booklet series as stated in the writ petition were utilized to avoid the possibility of copying and use of unfair means.
29. With regard to the incidents as mentioned in the different paragraphs of the writ petition, it has been specifically contended that only at two centres; one at Guru Madhav Prasad Shukla Inter College, ADA Colony, Jhalwa, Allahabad and another at PPS College, Etah there was some discrepancy in as much as the question papers meant for the second shift examination were distributed in the first shift and the question papers meant for first shift examination were distributed in the second shift. There is no other allegation of leaking of the question papers or use of unfair means on a mass scale.
30. The allegations regarding the such discrepancies in fifty centres have been specifically denied. Reference has been made to the report submitted by the Tata Consultancy Services (TCS), the Agency to which the conduct of the written test was outsourced. A copy of the report of TCS has been filed as Annexure No. 1 to the counter affidavit.
31. With regard to the allegation that in the question booklet series 39 that was distributed to some candidates, questions regarding the Maths and Hindi were missing a reference has been made to the specific instructions in the question booklet itself for the candidates to immediately inform the Invigilators if there was any misprint or pages torn in the question paper booklet and for getting it replaced by a new question paper of the same series. It has been specifically submitted that a few of the candidates did not follow the instructions properly but that would not vitiate the whole examination.
32. It has also been submitted that the question paper booklet series 39 was distributed in the second meeting on 18.06.2018 and there was discrepancy also with regard to the second shift question papers being distributed in the first shift at two centres only. Therefore, the Board had taken a decision on 08.08.2018 to cancel the written test of the second meeting of all candidates and the written test of nearly 11 lacs of such candidates is scheduled to be held on 25th and 26th of October, 2018.
33. The learned Standing Counsel has also referred to the earlier rules namely the U.P. Police Constable and Head Constable Service Rules of 2008 which provided that the written test be held on one and the same day simultaneously for all candidates and the amendment notified on 17.08.2017 in the new Service Rules of 2015, by adding Rule 15 (2) which provides that the Board will decide at its own level to conduct written examination on one date in a single shift or in more than one shift or on more than one date in different shifts with different question papers or through computer based written examination system. It has been further provided in Note (2) to the said Rule 15 (2) that if the Board decides to conduct the written examination in more than one shift or on more than one date in different shifts, with different question papers, then the Board may, if necessary, decide the process of normalization of marks obtained by candidates appearing in such examination at its level and will publish it in its advertisement. The learned standing counsel has referred to para 14.1 of the Advertisement where mention has been made that test shall be conducted in different shifts with different question papers.
34. It has also been argued that the Rules have not been challenged by the petitioners and the Recruitment Board having been given this power under the amended Rules in 2017, whether to hold the examination in one single shift or in different shifts with different question papers, it cannot be said that it exceeded its jurisdiction. The candidates have willingly participated in the selection and it is not now open to them to turn around and challenge the procedure adopted.
35. It has also been submitted by the learned Standing Counsel that in pursuance of the earlier orders passed by this Court a meeting was held on 18.09.2018 attended by the responsible officers i.e. Chairman and Secretary and Member of the Board where the amended Rules have been referred to and the difficulties faced in holding examination on one single date in earlier occasions in 2009 and 2013 were also considered. It was found by the officers that there were several practical difficulties faced in holding the written test on one single date in one single meeting all over the State of U.P. These difficulties have been enumerated regarding the employment of supervisory staff and large number of police personnel in remote areas of the State of U.P. where such examination centres were set up and also the difficulties faced by the candidates in reaching these remote areas in time for the written test. Not only the candidates faced difficulty but the Recruitment Board had also faced difficulty in terms of the logistics involved in ensuring that the question papers and other selection material reached such remote areas in time and without the secrecy and fairness of the selection being compromised.
36. The learned Standing Counsel having thus submitted on the basis of the instructions received, and on the basis of the two personal affidavits filed by the Secretary of Recruitment Board, this Court has also carefully perused the counter affidavit filed by the respondents on 21.08.2018.
37. The Tata Consultancy Services has submitted a report which has been filed as CA - 1 by the respondents. On the query being put by the Recruitment Board to it regarding the contents of the writ petition, it has been stated in the report dated 04.08.2018 that the Tata Consultancy Service (hereinafter to referred as "the TCS") had conducted an offline assessment of candidates for constables, Civil Police and PAC as directed by the Recruitment Board. The number of vacancies was 41,520. The exam was held in two shifts on two dates on 18th of June, 2018 between 10 A.M. to 12:05 P.M. Noon in first shift and in between 3:00 P.M. to 5:05 P.M. afternoon in second shift and on 19.08.2018 similarly between 10 A.M. to 12:05 P.M. noon in first shift, and in between 3:00 P.M. to 5:05 P.M. afternoon in second shift.
38. For the conduct of the such assessment the TCS has prepared a question bank of sufficient multiple choice objective type questions for General Knowledge, General Hindi, Numerical and Mental Ability, Mental Aptitude/I.Q. And Reasoning Ability with total 150 questions. The TCS prepared and printed two question papers per shift known as Plan A and Plan B i.e. there were only four sets of question papers and randomization of questions was done across all the sets of each shift to ensure that each question in each series is distributed in a unique manner, so that no commonality in position of any question is found across any series.
39. The question paper series 1 to 24 (A-FN) was used in first shift of 18th of June, 2018 and question paper series 25 to 48 (B-AN) was used in second shift on 18th of June, 2018. Question paper series 49 to 72 (A-MS) was used in first shift on 19th of June, 2018 and question paper series 73 to 96 (A-AS) was used in second shift on 19th of June, 2018. Each question paper series plan was stored in sealed and locked boxes clearly labelled with the plan name which were opened at the Test Centre only one hour before the respective exam shift started. On the Exam day, the trunks of the plan A and B to be used were jointly opened by Tata Consultancy Manager, the Centre Superintendent and the UP Police Observer in the strong room in the presence of two invigilators.
40. The allegations regarding the question paper of first shift being distributed in the second shift at nearly fifty centres has been denied specifically. It has been mentioned that on 18th of June, 2018 in Guru Madhav Prasad Shukla Inter College the afternoon shift trunk (Test Booklet series from 25-48) was inadvertently opened in the morning shift and was distributed to the candidates of that very centre. Therefore, the remaining morning shift trunk (Test booklet series from 1-24) was used for the afternoon shift at same test centre. Similar is the case with the PPS Inter College, Etah where such mistake occurred on 19.06.2018. In no other centre was this discrepancy found.
41. With regard to the factual aspects as mentioned in the writ petition in various paragraphs, it has been specifically stated that the candidates mentioned therein had all been given the correct question paper series, as was due to be given to them, as per the plan of their appearance either on 18.06.2018 or on 19.06.2018 in first or second shifts.
42. With regard to the allegations of a few candidates that the question paper booklet series 39 given to them was having question Nos. 1-35 of General Knowledge in repetition and then question Nos. 36-123 being missing, the instructions on the question paper booklet on the first page for all candidates to ensure that no page or question is misprinted, torn or left blank and if any discrepancy is found in test booklet, to report it to invigilator and get it replaced with test booklet of same series have been referred to. The video clips of different test centres had been preserved by the TCS to clearly demonstrate that the candidates concerned did not inform the invigilator, hence no action could be taken to redress the grievance on the examination day itself.
43. With regard to the specific pleading that the second shift candidates allegedly gained advantage of the alleged incident, the report clearly mentions that for gaining such advantage the question paper would need to be shared and solved within the time gap between the two shifts. The morning shift ended at 12:05 pm, and by the time OMRs were collected along with other examination materials, the candidates could leave the centre only by 12:30 pm. For the afternoon shift, the entry started by around 1:00 pm and gate closed at 2:30 pm. Before this, the candidates were standing in the queue outside the center for checking of any hidden study material with them and for admit card/identity verification. Within the intervening time period of approximately 30 minutes (12:30 pm to 1:00 pm), candidates would not logically have had the time nor the opportunity to obtain or study the morning shift paper in detail and solve it as they would have been busy reaching the centre , queuing at the gate and getting their identity and admit cards verified etc. It has also been submitted that in any case a candidate appearing in the second shift could not have known till the next day when the reports were published in the newspaper that he was attempting a question paper that had been inadvertently distributed in the first shift at two centres i.e. at Allahabad and Etah. It has been submitted that the integrity of the examination process had not been vitiated on any count.
44. This report also mentions that since the shift details as time slot, date, etc. are not printed anywhere on the question paper or on the OMR sheets, no one knew that the question paper distributed during the morning shift was actually meant to be used in the same day's afternoon shift. It has also been submitted that, in fact, it was natural that any afternoon shift candidate who saw the morning shift paper before the shift, to have assumed that this question paper would not appear in their shift at all and hence the candidate would not have given any importance to it. Further, no afternoon shift candidate would have known until the afternoon shift had actually begun that the question paper for the afternoon shift had been distributed in the morning shift at one particular centre out of 860 exam centres where the test was to be conducted. The newspaper reports that appeared were only after the conclusion of the afternoon shift on the second day of the exam. There was no likelihood of pre-knowledge of one's paper by the second shift candidates as alleged by the petitioners would not have got any unfair advantage.
45. It has also been submitted that each question paper had a unique serial number printed on it with a unique Bar Code on the OMR sheet. The serial number range for each question paper plan being unique it identified the question paper plan being used. The attendance verified during the shift via biometric device also includes a scan of OMR Bar coded serial number for each candidate. The detailed analysis of such parameters was carried out by the TCS and it concluded that there were no further examples of similar incidents at any other Test Centre in U.P. where afternoon shift trunk was opened in the morning shift and vice versa. It has also been submitted that none of the complainants was able to provide any proof of question paper circulation prior to second shift exam nor there was any news in electronic media or social media prior to start of exam or during the exam.
46. The TCS in its analytical report has submitted further that the first shift candidates from these two centres at Allahabad and Etah would not have been able to appear in subsequent shift in any other test centre because duplicate applications were debarred by the Police Recruitment Board at the initial stage itself. As such, these candidates could also not be said to have gained any advantage over the candidates of other centres.
47. The report of TCS which has been filed as annexure - 1 to the counter affidavit and relied upon by the respondents to say that there was no discrepancy except for one pointed out with respect to the two examination centres at Allahabad and Etah and the discrepancies regarding the misprinting of some questions in question paper series 39 distributed in second shift at some examination centres was taken into account by the Recruitment Board in taking a decision on 08.08.2018 to cancel the second shift examination held on 18.06.2018 and 19.06.2018 and for a decision to conduct a retest for second shift candidates only. The question Booklet series 39 was used only in the second shift examination and the cancellation of second shift examination also took care of any greivance regarding misprinting of the same.
48. In rejoinder, the petitioners have alleged that since the Recruitment Board has admitted the distribution of wrong question papers at two centres and the discrepancies in question booklet series 39 and have proposed to conduct re-examination of almost 10 lac candidates, while not cancelling the examination for 8,94,666 candidates it would facilitate the ten lac candidates who appeared in second shift to get an unfair advantage. It has been submitted that a longer period to revise the syllabus would be available to such second shift candidates, also, the pattern of question papers would be known to them beforehand. They would therefore stand on higher footing than the candidates who appeared in first shift and it has therefore been submitted that the entire examination should be cancelled.
49. With the rejoinder affidavit, an affidavit sworn by Smt. Sweta Kushwaha on 24.08.2018 highlighting that she was one such candidate who had been given question series 39 in which contain subjects' questions were repeated whereas other subjects were missing and when she pointed it out to the Invigilator nothing was done about it; has been filed as Annexur - RA 2.
50. An other affidavit of one Nitesh Giri dated 25.08.2018 has also been filed saying that he had been given a question paper of a different series and after a lapse of 40 minutes the said question paper was taken away by the Invigilator and he was given a question paper of different series and was assured that 40 minutes extra time would be given to him whereas no extra time was granted and the paper was taken away on completion of 120 minutes as fixed for every one, has also been filed as RA-1 to the rejoinder affidavit.
51. On the basis of such affidavits it has been alleged that the respondents have acted arbitrarily. It has also been alleged that normalization/moderation of question papers/OMR sheets cannot now be done in view of the fact that the examination was conducted in more than one shift and since the Recruitment Board has not cancelled the first shift exam, it would be impossible for the Recruitment Board to place such candidates who were given the second shift paper in the first shift on the same footing as others. It has not been substantiated as to how the moderation process would be jeopardized.
52. Having carefully perused the affidavits filed on behalf of the Recruitment Board and the contents of the writ petition and rejoinder affidavit and the arguments raised by the learned Senior Counsel for petitioners, this Court is at a loss to find any pleading on record either in the writ petition or in the rejoinder affidavit that 33 different sets of the question papers were utilized for conducting the written test by the Recruitment Board.
53. Only four sets of question papers were used for the four batches of 19 lac candidates who appeared in four different shifts on two different dates. The TCS had undertaken an exercise of randomization to ensure that no particular question was repeated at the same serial number in any other question paper for any other candidate. Therefore, the candidates may have felt that there were 33 sets of different question papers. In fact, there were only four sets of question papers although the booklet series were numbered as A-FN 1 to 24; question paper series; B-AN 25 to 48; question paper series; A-MS 49 to 72; and question paper series A-AS 73 to 96.
54. With regard to the decision of the Recruitment Board to hold the written test in four shifts on two different dates, the explanation submitted in the counter affidavit in para 9 is that similar exercise is undertaken by the Staff Selection Commission and Railway Recruitment Board also.
55. The amended rules of 2017 have not been challeged by the petitioners. It is their allegation that the discretion having been given to the Recruitment Board it has been arbitrarily exercised which has resulted in the discrimination amongst the similarly situated candidates.
56. This Court has now to consider the challenge raised by the petitioners and its admissibility in terms of the parameters of the judicial review set by binding precedents of the Hon'ble Supreme Court. In Om Kumar Vs. Union of India, (2001) 2 SCC 386 the Supreme Court was considering the scope of judicial review of administrative action and in paragraphs 66 to 70 the Supreme Court it has observed that where administrative action is challenged as being discriminatory in nature the courts apply primary review and it is the "proportionality" of the decision taken by the administrator which is weighed and where administrative action is challenged on the grounds of being arbitrary, the courts apply only secondary review and test the reasonableness of the action of administrator on Wednesbury principles. Paragraphs - 66 and 70 of the said judgment are reproduced as under:-
"We agree that the question of the quantum of punishment in disciplinary matters is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well known principles known as Wednesbury principles. (See Associated Provincial Picture Houses v. Wednesbury Corporation (1948) 1 KB 223. This Court had occasion to lay down the narrow scope of the jurisdiction in several cases. The applicability of the.principle of 'proportionality' in Administrative law was considered exhaustively in Union of India v. Ganaytham, [1997] 7 SCC 463 where the primary role of the administrator and the secondary role of the Courts in matters not involving fundamental freedoms, was explained.
We shall, therefore, have to examine the cases of Sri Om Kumar and of Sri Virendra Nath from the stand point of basic principles applicable under Administrative Law, namely, Wednesbury principles and the doctrine of proportionality. It has, therefore, become necessary to make reference to these principles and trace certain recent developments in the law.
I (a) Wednesbury principle:
Lord Greene said in 1948 in the Wednesbury case that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or other of the following conditions were satisfied-namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council for Civil Services Union v. Minister of Civil Services, (1983) 1 AC 768 (called the GCHQ case) summarised the principles of judicial review of administrative action as based upon one or other of the following-viz. Illegality, procedural irregularity and irrationality. He, however, opined that 'proportionality' was a 'future possibility.'
(b) Proportionality:
The principle originated in Prussia in the nineteenth Century and has since been adopted in Germany, France and other European countries. The European Court of Justice at Luxembourg and the European Court of Human Rights at Strasbourg have applied the principle while judging the validity of administrative action. But even long before that, the Indian Supreme Court had applied the principle of 'proportionality' to legislative action since 1950, as stated in detail below.
By 'proportionality', we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority 'maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve'. The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality."
57. In Sanchit Bansal Vs. Joint Admission Board: (2012) 1 SCC 157 the Supreme Court applied secondary review as it observed that in educational matters or in issues regarding the policy making the courts are not concerned with the practicability or wisdom of the policies but only the illegality. It referred to earlier decisions of the Supreme Court in All India Council for Technical Education Vs. Surinder Kumar Dhawan, (2009) 11 SCC 726 and Maharashtra Board of Secondary and Higher Secondary Education Vs. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27 to observe in paragraphs - 24 to 27 thus:-
"In Maharashtra Board of Secondary and Higher Secondary Education Vs. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27 it was observed thus :
".....the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them."
In All India Council for Technical Education v. Surinder Kumar Dhawan [2009 (11) SCC 726] this court held :
"The courts are neither equipped nor have the academic or technical background to substitute themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education. If the courts start entertaining petitions from individual institutions or students to permit courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, or because they think that one course is equal to another, without realizing the repercussions on the field of technical education in general, it will lead to chaos in education and deterioration in standards of education. ...... The role of statutory expert bodies on education and role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, the courts will step in."
This Court also repeatedly held that courts are not concerned with the practicality or wisdom of the policies but only illegality. In Directorate of Film Festivals v. Gaurav Ashwin Jain [2007 (4) SCC 737] this court held :
"........Courts do not and can not act as appellate authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review..." (emphasis supplied)
19. Thus, the process of evaluation, the process of ranking and selection of candidates for admission with reference to their performance, the process of achieving the objective of selecting candidates who will be better equipped to suit the specialized courses, are all technical matters in academic field and courts will not interfere in such processes. Courts will interfere only if they find all or any of the following : (i) violation of any enactment, statutory Rules and Regulations; (ii) mala fides or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone; or where the procedure adopted is arbitrary and capricious. An action is said to be arbitrary and capricious, where a person, in particular, a person in authority does any action based on individual discretion by ignoring prescribed rules, procedure or law and the action or decision is founded on prejudice or preference rather than reason or fact. To be termed as arbitrary and capricious, the action must be illogical and whimsical, something without any reasonable explanation. When an action or procedure seeks to achieve a specific objective in furtherance of education in a bona fide manner, by adopting a process which is uniform and non- discriminatory, it cannot be described as arbitrary or capricious or mala fide.
(emphasis supplied)
58. In Sadanand Halo Vs. Momtaj Ali Shekh, (2008) 4 SCC 619 the Supreme Court was again seized with the judicial review of recruitment process and it observed in para - 44 thus:-
"It is settled law that in such writ petitions a roving inquiry on the factual aspect is not permissible. The High Court not only engaged itself into a non permitted fact finding exercise but also went on to rely on the findings of the Amicus Curaie, or as the case may be, the Scrutiny Team, which in our opinion was inappropriate. While testing the fairness of the selection process wherein thousands of candidates were involved, the High Court should have been slow in relying upon such microscopic findings. It was not for the High Court to place itself into a position of a fact finding commission, that too, more particularly at the instance of those petitioners who were unsuccessful candidates. The High Court should, therefore, have restricted itself to the pleadings in the writ petition and the say of the respondents. Unfortunately, the High Court took it upon itself the task of substituting itself for the Selection Committee and also in the process assumed the role of an Appellate Tribunal which was, in our opinion, not proper. Thus, the High Court converted this writ petition into a public interest litigation without any justification."
(emphasis supplied)
59. In All India Railway Recruitment Board Vs. K. Shyam Kumar and others, (2010) 6 SCC 614, the Supreme Court was considering the decision of the Railway Recruitment Board in conducting a retest of those candidates alone who had secured the minimum qualifying marks in the earlier written examination that was held to be vitiated and observed that there were three options with the Railway Recruitment Board when it received reports of leaking of question papers on a mass scale. These options were (a) to cancel the whole examination and conduct a retest for all candidates; (b) to order a retest for only those candidates, who had obtained minimum qualifying marks in the written test. Thus, limiting the same to only 2690 candidates instead of 3,22,223 who had initially appeared and taken the earlier test which was found to be vitiated; (c) and to finalize the selection on the basis of first written test and to issue appropriate orders to all candidates, except the 62 candidates against whom there were allegations of impersonation.
60. The Supreme Court disagreed with the High Court's decision to direct the Board to issue appointment orders to all candidates and confine the investigation to 62 candidates against whom there were serious allegations of impersonation.
61. The Supreme Court again referred to two tests which are applied by the Courts to deal with review of administrative action. In paragraphs 36 & 37 of the said judgment, the Supreme Court considered the test of Wednesbury unreasonableness and the test of proportionality. The paragraphs 36 & 37 of the aforecited judgment are being quoted herein below:-
"36. Wednesbury and Proportionality - 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 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."
62. Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired results in every day terms, that you should not use a sledgehammer to crack a nut and in contrast to irrationality is often understood to bring the courts much closer to reviewing the merits of a decision. Proportionality as the word indicates has reference to variables or comparison, it enables the Court to apply the principle with various degrees of intensity and offers a potentially deeper inquiry into the reasons, projected by the decision maker.
63. The Supreme Court thereafter applied both the tests to the decision taken by the Railway Recruitment Board. Applying the test of Wednesbury unreasonableness, it considered whether the decision taken by the Board to conduct a re-test for those candidates who had obtained minimum qualifying marks in the first written test was so unreasonable that no reasonable authority could ever have decided so and whether the Board before reaching that conclusion had taken into account the matters which they ought not to have taken into account or had refused to take into account the matters that they ought to have taken into account and the decision taken by it was so unreasonable that no reasonable authority could ever have come to it? Judging the decision taken by the Board applying the standard laid down in the Wednesbury principle of unreasonableness, the first alternative that is the decision to cancel the entire written test and to conduct a fresh written test would have been time consuming and expensive. From a reasonable man's point of view it was felt that the second option i.e. to conduct a re-test for those candidates who had obtained minimum qualifying marks in the first written test was the best alternative. It thereafter applied the test of proportionality and in paragraph 42 observed thus:-
"42. We will now apply the proportionality test to three alternatives suggested. Principle of proportionality, as we have already indicated, is more concerned with the aims of the decision maker and whether the decision maker has achieved the correct balance. The proportionality test may require the attention of the Court to be directed to the relative weight accorded to interest and considerations. When we apply that test and look at the three alternatives, we are of the view that the decision maker has struck a correct balance in accepting the second alternative. First alternative was not accepted not only because such a process was time consuming and expensive, but nobody favoured that option, and even the candidates who had approached the court was more in favour of the second alternative. Applying the proportionality test also in our view the Board has struck the correct balance in adopting the second alternative which was well balanced and harmonious."
(emphasis supplied)
64. In U.P. Public Service Commission Vs. Rahul Singh, (2018) 7 SCC 254 the Supreme Court has observed that the courts should not easily interfere in the recruitment process. It must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. When the interference has been shown on the mere asking of candidates, there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination - whether they have passed or not; whether their result will be approved or disapproved by the court; whether they will get admission in a college or university or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybody's advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers. The Supreme Court in Rahul Singh (supra) referred to paragraphs 31 and 32 of the judgment rendered by it in Ran Vijay Singh and Others vs. State of Uttar Pradesh and Others, (2018) 2 SCC 357. The Supreme Court observed that 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 always possible. It observed that it is rather unfortunate that despite several decisions to the contrary, there is interference by the courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination.
65. In view of the law settled by the Hon'ble Supreme Court with regard to the maximum leeway being given to the Administrator in taking a decision at the first instance and for the courts to apply a limited review in such matters, this Court finds that the decision taken by the Recruitment Board on the basis of the report submitted by the TCS with regard to the conduct of retest of only those candidates who appeared in the second shift on 18.06.2018 and 19.06.2018 to be appropriate and proportionate decision in the matter, so as to avoid the further delay and exorbitant expenses incurred in conducting the whole written examination all over the State of U.P. again for nearly 19 lac of candidates. The cancellation of examination for the second shift alone substantially deals with the grievance of certain candidates allegedly gaining an advantage at those centres where the trunks carrying papers for the second shift were inadvertently opened. It also takes care of the grievance regarding misprinting in Question Paper Booklet Series 39 which was distributed only in the second shift examination at some centres.
66. The writ petition is dismissed.
67. No order as to costs.
Order Date:-23.10.2018 LBY