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____________________________________________________________________ Creative Infosystem Unitron Computer (Pvt.) Ltd.

____________________________________________________________________ Agra, Lucknow, Banda, Meerut, Varanasi, Gorakhpur, Mirzapur, Jhansi, Gonda, Bareilly, Allahabad, Faizabad, Saharanpur, Moradabad, Azamgarh Kanpur, Basti ____________________________________________________________________ Thereafter, the result of the written examination was declared on 3.7.2003 by the Registrar, Departmental Examination. The candidates, who were declared successful sought admission at different training centres and commenced their training course. In the meantime, certain complaints were received by the State Government alleging large scale irregularities in the aforesaid examination, whereupon Sri Ravi Pratap Verma, Joint Director of Education (Training) SCERT (hereinafter referred to as 'JDE') was authorized to conduct enquiry in the alleged irregularities in the said Examination. JDE after holding enquiry submitted a report on 20.4.2004, based on the informations received from two computer firms, namely, Datasoft Computer Ltd. and Finteck Computer System pertaining to Jhansi, Devipatan, Bareilly, Mirzapur, Varanasi, Gorakhpur and Meerut division. Verifying several irregularities, he pointed out that in the said divisions at least 299 candidates have wrongly been selected, and, besides, copies of a large number of selected candidates were missing on account whereof facts in respect to those candidates could not be verified. A districtwise list of all the seventy districts giving missing number of answer sheets of selected candidates was given by him along with his enquiry report. It shows number of available answer sheets of selected candidates in written test as 4624, number of missing answer sheets of selected candidates as 778, number of available answer sheets of candidates placed in waiting list as 2421 and the number of missing answer sheet of candidates placed in waiting list was 604. He also pointed out that in respect to Allahabad, Lucknow, Chitrakoot, Faizabad, Kanpur, Basti, Saharanpur Moradabad, Agra and Azamgarh, pre and post examination CD could not be made a bailable, therefore, he could not make any comments in respect thereto, but apprehended a large scale irregularities in the entire examination. He recommended action against the then Registrar, Departmental Examination and also said that the selected candidates who were undergoing BTC training be permitted only provisional permission in BTC first year training examination so that there may not arise any complication subsequently in taking appropriate decision with respect to the entrance examination. Out of seven Divisions in all, tentatively, the JDE found in selections of 299 candidates to be totally illegal and irregular. The pre and post examination CD of rest of the 10 divisions were not made available to him in respect to which initially the contract for preparation of result was awarded to M/s Wips Pvt. Ltd. Jaipur, Creative Infosystem Limited, New Delhi and Unitron Computers Ltd., New Delhi. It is interesting to note that the Unitron Computers Pvt. Ltd. and Creative Infosystem Ltd. are the two companies, which were subsequently authorized to prepare the final result after reallocation by the Registrar of the Examination. In respect to seven divisions, for which JDE submitted his report, he found copies of selected/waitlisted admitted candidates missing being 778/604 in number respectively.

The letter No. BTC/Pravesh/7044/2003-04 dated 20.3.2004 sent by Sri Satich Chandra, Registrar, departmental examination, U.P., Allahabad to M/s Wips Private Limited, Jaipur shows that the said computer company on 20.3.2004 informed the Registrar that no data is available in their computer and the same was already handed over to the erstwhile Registrar by the said firm. Therefore, the computer firm, which prepared the data with respect to Allahabad, Lucknow and Chitrakoot Dham sought to wriggle out of its liability of providing data for investigation stating that it has already removed the same after handing over data CD. to the erstwhile Registrar of the Examination. Similarly, letter dated 25.3.2004 sent by the Registrar. Departmental Examination to M/s Unitron Computers Ltd. and Creative Infosystem Ltd. shows that the said two companies also did not cooperate in enquiry by providing relevant data and information to the department. Similar letters were also sent by J.D.E. on 1.4.2004 to M/s Creative Infosystem Ltd. and 2.4.2004 to M/s Wips Private Ltd. but it appears that the same did not yield any result. Out of 28 districts, it found 164 candidates were shown wrong marks in written or educational quality point marks showing their illegal selection and admission in the aforesaid Course and 13 were the candidates in the said districts who were below or above the prescribed age but were selected and admitted. The aforesaid figures were taken out of the available 3022 answer-sheets noticing that 694 answer-sheets of the selected and admitted candidates were missing. District Sultanpur's answer-sheets, which were 96 in number were also not made available to him. The report therefore, though pointed out substantial irregularities but apparently desired more investigation in the matter and, therefore, on its own could not have been acted upon. Pursuant to the said report dated 13.4.2004, the Secretary of the Department recommended for a vigilance enquiry on 7.7.2004 and the same was approved by the Chief Minister on 16.7.2004. The matter was referred to vigilance enquiry on 3.8.2004 which submitted its report vide Joint Director, Vigilance, U.P., Allahabad's letter dated 23.7.2005. The aforesaid report highlighted the following:

(v) Number of candidates whose answer sheets are available but applications forms are missing - 618

(vi) Number of candidates whose answer sheets are available but their names and father's names are not available -1194

(vii) Cases where District Code is not mentioned - 87

(viii) Cases where the information with respect to High School, Intermediate and Graduation level is not available -24992

(ix) Cases where bank draft were not found enclosed - 24945

(x) Provisionally allotted roll number to the candidates - 21219

(ix) Positive selection of the candidates who have secured less marks either in written examination or educational qualification quality point rating yet selected.

On the basis of its recommendations, the Vigilance recommended disciplinary as well as criminal action against the officials concerned including the concerned computer firms and also for cancellation of the entire entrance examination.

17. The learned Counsel for the appellants in the circumstances sought to argue that all these and various irregularities pointed out were identifiable. Therefore, the candidates who have secured selection and admission by wrongful means ought to have been identified and only their selection should have been cancelled, but the respondents in taking a decision for cancelling the entire selection have acted arbitrarily and this shows non application of mind and/or wholly arbitrary and irrational decision on their part. At first flush, the argument of the learned Counsel for the appellant appears to be quite attractive but on deeper scrutiny of the matter, we find no substance therein. One of the foremost hurdle in identifying and pinpointing the irregular and illegal selectees is the non availability of the entire information and/or even the answer sheets of all the candidates. As pointed out, in 28 districts, only about 3000 answer sheets were found available and more than 600 were found missing. These are the facts and figures with respect to the selected candidates whose result was declared. There is nothing on record to show that the answer sheets were actually available but have been shown to be missing and for this factual averment contained in the enquiry report, we do not find any reason to disbelieve. If that is so, in the absence of availability of all the answer sheets it cannot be accepted that the respondents could have prepared the result afresh after removing the alleged irregularities and thereby excluding the wrongful beneficiaries from the list of the selected candidates namely separation of grain from chuff, the selection could not have been regularized. In the absence of the relevant documents, this exercise could not have been completed. Though it is vehemently contended that the number 6f missing answer sheets is only to the tune of 15 to 20 per cent and is not so substantial as to vitiate the selection of other candidates but in our view, it is only one aspect of the matter. In 28 Districts, where the enquiry was conducted by the J.D.E. more than 600 answer sheets were missing. Further, about 200 candidates were identified whose answer sheets were available and who have obtained selection illegally by showing higher marks then actually secured. In these circumstances for some of the selected candidates whether their selection is valid or not may not be verified unless the answer sheets of all the unselected candidates are also available and correctly evaluated in accordance with rules. Therefore, it is difficult to sustain that even the rest of the candidates can be said to have been validly selected. We can understand that after undergoing training for two years, during which period enquiry was also undergoing, it was a difficult decision taken by the Government but in the facts and circumstances of the present case, it would be difficult for us also to hold the said decision to be arbitrary so as to warrant judicial intervention in exercise of jurisdiction 226 of the Constitution of India. Unless, the decision can be said to be so irrational and/or arbitrary that no person of ordinary prudence would have come to such decision in the facts and circumstances of the case, this Court will not sit in appeal and set aside the said decision in exercise of its power of judicial review. We find that on this aspect of the matter, the Hon'ble Single Judge has rightly relied upon the Apex Court decision in O. Chakradhar (supra) referring to following observations contained in para-8 of the judgment: