Rajasthan High Court - Jaipur
Mukesh Kumar Sharma vs State (Medical And Health )Ors on 1 October, 2012
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Civil Writ Petition No.8654/2012 (Mitesh Jangid & Anr. VS. State of Rajasthan & Ors.) AND S.B. Civil Writ Petition No.8707/2012 (Nishant Bagherwal & Ors. VS. State of Rajasthan & Ors.) AND S.B. Civil Writ Petition No.8759/2012 (Anil Kumar & Ors. VS. RUHS, Jaipur & Ors.) AND S.B. Civil Writ Petition No.8760/2012 (Anil Kumar & Ors. VS. RUHS, Jaipur & Ors.) AND S.B. Civil Writ Petition No.10636/2012 (Deepak Kumar Agarwal & Anr. VS. State of Raj. & Ors.) AND S.B. Civil Writ Petition No.10849/2012 (Jai Pratap Singh & Anr. VS. State of Rajasthan & Anr.) AND S.B. Civil Writ Petition No.12684/2012 (Mukesh Kumar Sharma VS. State of Rajasthan & Ors.) Date of Order : 01st October, 2012 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Akhil Simlote ] Mr.Vijay Poonia ] Mr.Alok Chaturvedi ] Mr.Vikas Kabra ], for the petitioner/s. Mr.G.S.Bapna, Advocate General with Mr.Sarversh Jain, for the State Government. Mr.Ashok Gaur, Sr. Adv. with Mr.Ajatshatru Meena, for the private respondent/s. Mr.M.A.Khan, for the respondent University. BY THE COURT:
With the consent of learned counsel for the parties, these petitions have been heard finally.
The instant writ petitions pertain to selection to the post of Drug Controller Officer, for which, the respondent University issued advertisement. All the petitioners and private respondent/s appeared in selection and result thereupon was declared. The selection was held on 20th May, 2012 and result thereupon was declared on 22nd May, 2012.
Two issues have been raised by the petitioners. One is pertaining to cheating in the selection and second is that certain questions were out of syllabus.
It is stated that on nine centres, selection to the post in question was held and at all the places videography was to be conducted, however, on few centres, videography does not exist and in those centres, mass cheating took place. The candidates are having not only same marks but their correct and incorrect answers are exactly same. Those, candidates were sitting close to each other videography does not exist at that place whereas for other centres, videography exists. In the manner aforesaid, the selection cannot depose confidence.
The other aspect is regarding certain questions, which were out of syllabus.
According to learned counsel for the petitioners, 40 questions were out of syllabus, thus needs to be discarded with the direction to prepare a fresh merit list out of remaining questions or selection may be held illegal.
Learned counsel for the University, the State Government and private respondent/s, on the other submit that allegations of cheating is vague, rather based on no material. The selection was conducted by the University in such a manner where no cheating can take place. The selection test was conducted on-line and therein questions were given to the candidates in jumble order. A candidate answering one question was at different number to the neighbouring candidate. In the background aforesaid, chance of cheating cannot be there and otherwise, sitting arrangement of the candidates was such so as to avoid any event of cheating. In view of above, the allegation of cheating is baseless.
The allegation that 40 questions were out of syllabus is not correct. The topics given in the syllabus are wide enough to include all the questions set in the question paper, accordingly none of the question can be said to be out of syllabus. The petitioner has raised issue after becoming unsuccessful. Looking to the aforesaid, they may not be granted indulgence, moreso when, their marks in the selection are much below than the cut off marks. The writ petitions may accordingly be dismissed with heavy cost.
I have considered the rival submissions made by learned counsel for the parties and perused the record.
Coming to the first issue regarding allegation of cheating, the petitioners had given list of few groups while submitting rejoinder to substantiate allegations in the petitions. This is to indicate as to in what combination, cheating has taken place. It was on different centres and for different candidates. To specify, names of Ritu Joshi bearing roll number 13256 and Dheeraj Sharma bearing roll number 13258 have been given. Both the candidates scored 82 marks in the selection and were sitting nearby. They attempted same questions correctly and incorrect questions are also same, thereby there exists no difference in their marks and the questions attempted correctly and even questions attempted incorrectly. The position of facts for Pankaj Verma- Bhupendra Singh, Girota Priti-Harish Kumar, Bhagwan Swar- Gaurav Sharma and Jayant Kumar Gehlot-Amit Saraswat etc. are almost similar, who have scored almost same marks and answers are almost similar. The Court directed the respondents to call for the videography of those centres where these candidates appeared in the selection.
It is stated that videography was arranged for all the centres but on few centres, it failed. The centres of which, the candidates have been named above, does not have videography whereas for other centres, videography exists.
Looking to the peculiarity of facts and circumstances, it needs a proper enquiry into the matters. This is to depose confidence in the selection.
Learned counsel Mr.Ashok Gaur assisted by Mr.Ajatshatru Meena appearing for Ritu Joshi and Dheraj Sharma submits that these two candidates appeared in many competition together and scored almost similar marks. List of those selection and marks obtained by these two candidates has been furnished during course of the arguments, which is taken on record.
I find that issue as to whether cheating has taken place or not needs to be enquired properly. It may be for few candidate leaving others at this stage. If the enquiry report comes adverse to those candidates, whose names are mentioned, then the Court cannot depose confidence in the selection. In that regard, I deem it proper that University should get it enquired by an independent agency like Anti Corruption Bureau or any other agency of similar nature, which may properly enquire or investigate the issue. The enquiry may be done initially in respect of following candidates named below:
Names Roll No. (i)Ritu Joshi 13256 (ii) Dheraj Sharma 13258 (iii) Pankaj Verma 10937 (iv) Bhupendra Singh 10938 (v) Girota Priti 11184 (vi) Harish Kumar 11185 (vii) Bhagwan Swar 14438 (viii) Gaurav Sharma 14439 (ix)Bhagwan Swaroop Maheshwari 13438 (x)Gaurav Sharma 13439 (xi)Jayant Kumar Gehlot 12211 (xii)Amit Saraswat 12212
If the allegations of cheating are not found correct then respondent University and the respondent Department may proceed in the matter for appointment. In case of adverse report, the respondents are expected to take proper view by scraping the selection if, not for all, then for those candidates found involved in cheating. The decision aforesaid may be taken by the University after getting the enquiry report.
Now comes to the allegation that 40 questions were out of syllabus.
Since issue can be determined by experts, at the request of parties, the matter was sent for opinion of the experts. The learned Advocate General Mr.G.S.Bapna furnished initial opinion, which was of the Professors, somehow involved in selection, thus order was issued to get opinion of the independent experts. The order in that regard was passed on 03rd August, 2012 and liberty was given to the University/State Government to seek opinion of experts from Medical College, Bikaner/Ajmer/Jodhpur/Kota etc. After the aforesaid, it was requested by learned Advocate General that experts do not exist in either of the medical colleges, thus they may be allowed to seek opinion from Mohanlal Sukhadia University, Udaipur. The prayer was granted on 08th August, 2012. The matter was sent for expert opinion from Mohanlal Sukhadia University, Udaipur. The opinion has been received and was shown to the Court indicating that 12 questions are out of syllabus, which were questions Nos.2, 5, 8, 9, 11, 12, 16, 18, 19, 20, 35 & 36.
Learned counsel Mr.Ashok Gaur submits that opinion given by the experts is not conclusive, rather it is vague opinion, thus should not be relied upon. He has placed material to indicate that all the questions are falling in the four corners of syllabus. It is alternatively suggested that expert opinion can be taken from National Institute of Pharmaceutical Education and Research, SAS Nagar, Mohali (Punjab) from where proper advise can come.
The issue as to whether questions were out of syllabus can opine by the experts and this Court cannot ignore expert report obtained and submitted before this Court indicating 12 questions out of syllabus.
Since, much debate has been made regarding few questions and according to learned counsel for the respondent/s, the questions were set from the syllabus itself, in my opinion, there is no reason to discard the opinion given by the Professor/s of Mohanlal Sukhadiya University, Udaipur. If 12 questions are discarded, the selection can still be saved, inasmuch as, merit list can be prepared based on marks obtained in remaining questions but to be very specific and precise and to further depose confidence in selection of both the parties. I am of the opinion that University should send the matter regarding 12 questions to National Institute of Pharmaceutical Education and Research, SAS Nagar, Mohali (Punjab) or Delhi University along with copy of syllabus published by University and copy of question paper so as to seek expert opinion. A copy of the opinion already given by the Professor/s of Mohanlal Sukhadiya University, Udaipur may also be attached. The experts may not be guided by the opinion already given and would be at liberty to make fresh opinion.
On getting opinion, if it is found that 12 questions set by the University were out of syllabus or few of them are out of syllabus, then without further exercise, the questions out of syllabus should be discarded and merit list be prepared afresh from remaining questions, which are found within four corners of syllabus.
The exercise as directed above may be completed at the earliest so that appointments may not be delayed and at the same time, selection conducted by the University can depose confidence in the mind of everyone, which includes not only the petitioners but private respondents before this Court.
It is, however, made clear that during the course of enquiry in regard to allegation of cheating, the candidates named above, would be given liberty to show that it may be a coincidence that they have scored same marks or almost similar marks based on the same correct or incorrect answers. The enquiry aforesaid should be conducted without prejudice and with open mind. It is expected from the University to get complete exercise within a period of two months from the date of getting certified copy of this order.
With the aforesaid, all these writ petitions stand disposed of so as the stay applications.
(M.N. BHANDARI), J.
S/No.65-71 Preety, Jr.P.A. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Preety Asopa Jr.P.A.