Krishan Gurjar vs Union Of India And Ors.

,,,,

V. Kameswar Rao, J",,,,

In this petition filed under Article 226 of the Constitution of India, the petitioner prays for issuance of an appropriate writ, order or direction in the",,,,

nature of certiorari for quashing the order dated December 24/30, 2013 cancelling the candidature of the petitioner for appointment to the post of",,,,

SI/GD through COP’s Examination 2011 and also debarring him for a period of five years from the Commission’s examinations. A mandamus,,,,

is also sought directing the respondents to consider his case for revoking the offer letter dated August 02, 2012 and for appointing the petitioner to the",,,,

post of SI/GD in accordance with his position along with his batch-mates so appointed.,,,,

The necessary facts to be noticed for disposal of this writ petition are that the petitioner applied in response to an advertisement dated May 28, 2011",,,,

notified in the Employment News inviting applications to the post of SI/GD by way of direct recruitment through CPOs Examinations, 2011. In March,",,,,

2011 the petitioner appeared in the recruitment process including written test held on August 28, 2011 and interview held on February 02, 2012. Upon",,,,

declaration of final result on March 01, 2012, he was declared successful for appointment to the post of SI/GD. It is his case that he was directed by",,,,

the Director General of BSF to report to the Training Centre, Gwalior on September 10, 2012 for undergoing the prescribed training vide letter dated",,,,

August 02, 2012. It is averred that subsequently, he received a letter dated August 30, 2012 cancelling the offer of appointment dated August 02, 2012",,,,

on the basis of recommendations received from SSC to the effect, on detailed post examination analysis of the written test in respect of 76 candidates,",,,,

including the petitioner, it was found he was involved in malpractices. Pursuant thereto, on May 06, 2013, he received a letter signed by the Under",,,,

Secretary to show cause by May 15, 2013 as to why he be not debarred from all examinations/recruitments conducted by the Commission for a period",,,,

of five years as he was prima facie found to be involved in resorting to malpractices in Paper-I and Paper-II of the written examination. He submitted,,,,

his reply on May 15, 2013 denying all the allegations of his involvement in any malpractices. Thereafter, he received another notice dated May 31,",,,,

2013, this time signed by the Regional Director setting out therein that as informed by the SSC (Headquarters), incontrovertible and reliable evidence",,,,

has emerged during such scrutiny/post examination, analysis that the petitioner had resorted to copying in the said papers in association with other",,,,

candidates, who also took the same examination but that too without divulging the name of such candidates along with whom the petitioner is alleged",,,,

to have resorted to copying. The petitioner submitted his response on June 12, 2013 reiterating contentions as set out in his earlier reply dated May 15,",,,,

2013.,,,,

According to the petitioner after gap of about six months, he received an order dated December 24/30, 2013 whereby not only his candidature for",,,,

appointment to the post of SI/GD was cancelled but he was debarred from appearing in the Commission’s examinations for a period of five years.,,,,

In the counter affidavit filed by the Staff Selection Commission, it is their stand that the respondent-Staff Selection Commission conducted Paper-I",,,,

& Paper-II of Written Examination for the posts of Sub-Inspector in CPOs, Assistant Sub-Inspector in CISF and Intelligence Officer in Narcotics",,,,

Control Bureau (NCB) Examination, 2011 on August 28, 2011. Paper-I was of 200 marks of multiple choice objective type questions. It comprised for",,,,

of four parts:-,,,,

Part-(A): General Intelligence and Reasoning (50 Questions),,,,

Part-(B): General Knowledge and General Awareness (50 Questions),,,,

Part-(C): Numerical Aptitude (50 Questions),,,,

Part-(D): English Comprehension (50 Questions),,,,

It is stated that Paper-II was of multiple choice objective type questions. It comprised of English Language & Comprehension of 200 marks. As per,,,,

cut off marks fixed by the Commission in Paper-I & Paper-II, candidates who qualified in Paper-I and Paper-II and also qualified in PST/PET and",,,,

who are found FIT in Medical Examination, were called for Interview. On the basis of marks of Paper-I, Paper-II and interview final Merit is",,,,

prepared. Throughout the recruitment process the candidature of all the candidates was provisional. It is stated, the petitioner (Shri Krishan Gurjar,",,,,

Roll No.2405013155) finally qualified in the examination with Rank No.SLC/00234 to the post of Sub-Inspector in BSF. Accordingly, he was",,,,

nominated to the user department i.e. BSF. It was clearly mentioned in the Note-III of Para-9 of Notice of Examination (Annexure R-1) thaât €œthe,,,,

commission will be using a software to detect attempted irregularities in an examination Hall/Sub-Centre/Centre/State. Candidates are,,,,

advised to desist from use of any unfair method in the examination hall which will render them ineligible for further consideration for the,,,,

examination and also lead to their debarment from Commission’s examination in futureâ€​.,,,,

It is stated, the Commission undertook Post Examination Analysis of Sub-Inspectors in CPOs, Assistant Sub-Inspectors in CISF & Intelligence",,,,

Officer in NCB, Examination, 2011 with the help of an independent expert body viz., the Institute of Banking personnel Selection (IBPS) which uses a",,,,

scientific/statistical method, to find out cases where candidates may have used unfair means to qualify the examination. It is further stated, since more",,,,

than 3 decades, this body is following a Scientific Method for detection of the use of unfair means/malpractices used by the candidates in the",,,,

Objective Test. Based on this Scientific Method, which is time tested for detection of use of unfair means, the Expert Body sent a Report/Analytical",,,,

data of pairs of candidates suspected to have copied/used unfair means. The experience of the Recruitment agencies has been that candidates in,,,,

collaboration with organized gangs indulge in organized cheating through hands free Bluetooth devices or other devices, which is difficult to detect.",,,,

The candidate, who indulge in such unfair means may not, necessarily, be sitting at one place but at different venues while writing the said test and",,,,

receive answers from common source. In few cases, the candidates have been apprehended by flying squads deputed by Commission as well as",,,,

Police authorities and the candidates have confessed to getting answers through Bluetooth devices and through slips provided in advance.,,,,

It is further stated, since it is almost impossible to detect blue-tooth devices on the person of the candidates and consequently impossible to catch",,,,

hold of the candidates with evidence, and as the Commission is duty bound to ensure that such cheaters and fraudsters do not enter Government",,,,

service, the Commission attempted to detect cases of unfair means on the basis of analysis of answer responses given by the candidates. In the",,,,

multiple choice objective tests a candidates is required to choose one correct answer from the given 4 alternative answers and indicate the answer,,,,

chosen by him on the OMR answer sheet. Therefore, it is possible for some of the candidates to resort to unfair means and given the answers by",,,,

receiving the same from outside person or some other candidate sitting close easily and often without being detected. Unfair means are used in one or,,,,

more of the following ways:-,,,,

(i) Receiving answers from other source(s) through modern communication devices.,,,,

(ii) A group of candidates through a common source of answers.,,,,

(iii) Candidates, in pairs exchange answers/answer sheet.",,,,

,Total Match,Right Right Match,Blank Blank Match,"W r o n g Wrong

Match

T 1,0,0,0,0

T 2,44,25,0,19

T 3,1,0,0,1

T 4,48,15,0,33

*********,,,,

With reference to his/her candidature for the above noted examination, he/she was found that prima facie he/she was resorted to mal-",,,,

practices in Paper-I and Paper-2. He/she is directed to explain as to why he /she should not be debarred from all examinations/recruitments,,,,

conducted by the Commission for a period of five years.,,,,

He/ she is directed to submit explanation immediately so as to reach this office latest by 15.05.2013 failing which orders for debarment,,,,

would be issued without any further correspondence to him.â€​,,,,

“Dated:31/5/2013,,,,

SHOW CAUSE NOTICE,,,,

Whereas Mr./Ms. Krishan Gurjar son/daughter of Shri Durga Prasad Gurjar residing at the aforesaid address, was a candidate of SI in",,,,

CAPFs, ASI in CISF & IO in NCB Examination, 2011 notified in the Employment News dated 28.05.2011.",,,,

Whereas Mr./Ms. Krishan Gurjar was provisionally called for interview cum personality Test of the aforesaid Examination.,,,,

Whereas the Commission undertakes regular post examination scrutiny and analysis of performance of the candidates in objective type,,,,

multiple choice question papers with the help of experts, who have proven expertise in such scrutiny and analysis and had carried out such",,,,

scrutiny and analysis in the case of written examination papers of the aforesaid examination.,,,,

Whereas as informed by SSC (HQrs) incontrovertible and reliable evidence has emerged during such scrutiny and analysis that Mr./ Ms.,,,,

Krishan Gurjar had resorted to copying in the said papers in association with other candidates who also took the same examination.,,,,

Hence, as directed by SSC (HQrs) Mr./ Ms. Krishan Gurjar is hereby given an opportunity to show cause within 10 days of issue of this",,,,

notice as to why his/her candidature should not be cancelled and why he/she may not be debarred for five years from appearing,,,,

Commission’s examinations due to his/her indulgence in unfair means in above mentioned examination.,,,,

If he/she fails to respond within prescribed time limit his/her candidature for above mentioned examination will be cancelled and he/she will,,,,

be debarred for five years from appearing Commission’s examinations and there after no further correspondence will be strictly be,,,,

entertained.â€​,,,,

From the show cause notice dated May 06, 2013, it is clear that the show cause only stated that the petitioner had resorted to malpractices in",,,,

Paper-I and Paper-II. He was called upon to explain his position. The said show cause notice did not detail as to what malpractices were found in,,,,

Paper-I and Paper-II, that too on the basis of a tangible evidence. Even for that matter, para 3 of the show cause notice dated May 31, 2013 refers to",,,,

post examination scrutiny and analysis of performance of the candidates in objective type multiple choice question papers with the help of experts,",,,,

who have proven expertise in such scrutiny and analysis.,,,,

Suffice to state, it is the case of the petitioner that no such post examination scrutiny/analysis was given to the petitioner to enable him to submit a",,,,

reply to the same. In fact, we note, in his reply to the show cause notice dated May 06, 2013, the petitioner had stated as under:-",,,,

“XXXXX XXXXXX,,,,

XXXXXX,,,,

It is requested that the exact nature of the mal-practices which I resorted to and the basis on which,,,,

I have been accused of indulging in such mal-practices may be intimated to me please.,,,,

XXXXX XXXXXX,,,,

XXXXXXâ€​,,,,

That apart, in his letter dated June 12, 2013 also the petitioner has stated has under:-",,,,

“XXXXX XXXXXX,,,,

XXXXXX,,,,

It is also requested that if SSC has got any evidence against me that I have resorted to copying in association with the other candidates, the",,,,

same may be furnished to me. The basis on which I have been issued Show Cause Notice, is totally incomprehensible to me. I feel completely",,,,

depressed and shattered.,,,,

XXXXX XXXXXX,,,,

XXXXXXâ€​,,,,

Noting the aforesaid position, there cannot be any doubt that the show cause notices were bereft of material/evidence, which could throw light on",,,,

the malpractices the petitioner was involved with. Without such disclosure, the petitioner was in dark, about the allegations, to be met by him. The",,,,

serious allegations of malpractices has costed him, the appointment as a SI/GD in the BSF. It appears that the issuance of show cause notices were",,,,

mere formality to show compliance of principles of natural justice. It is also a settled law that principles of natural justice does not only warrant,,,,

issuance of show cause notice and eliciting a reply but includes giving such material to the noticee, which has been found against him to ensure he",,,,

considers the said material and gives his reply.,,,,

We may state that the show cause notice as was considered by the Supreme Court in Ashwani Kumar’s case (supra) is at variance with the,,,,

show cause notices, which have been issued to the petitioner herein. We reproduce the same here:-",,,,

“NOW THEREFORE, in the light of above developments and order dated 1-2-2013 of S.S.C. and the fact that your candidature for the",,,,

post of A.S.I/Exe. has been cancelled by S.S.C. which was the basis for the issue of offer of appointment to you by C.I.S.F., you are hereby",,,,

directed to show cause as to why your services shall not be terminated on cancellation of your candidature for the above post by the,,,,

S.S.C.â€​,,,,

That apart, on a specific query to Mr. Gogna that the Supreme Court has dismissed the SLPs filed by the Staff Selection Commission challenging",,,,

the order dated December 19, 2014 of the High Court in W.P.(C) No. 9055/2014 in Civil Appeal No. 2836-2838/2017 in the case of Staff Selection",,,,

Commission v. Sudesh (supra), the only answer given by him is that the same was without any reasons. We are unable to accept the said submission",,,,

for the simple reason that the High Court, despite the fact that the respondent therein namely Sudesh was issued a show cause notice with better",,,,

particulars than this case, still held the show cause notice issued to Sudesh was without fulfilling the basic requirement of principles of Natural Justice",,,,

and upheld the judgment of the Central Administrative Tribunal, which quashed the second show cause notice dated January 28, 2014 issued to",,,,

Sudesh, which judgment has been upheld by the Supreme Court in Civil Appeal Nos. 2836-2838/2017 and the review petition thereof on July 19, 2017",,,,

was also dismissed on October 31, 2017. If that be so, in the case in hand the show cause notices being bereft of any material/evidence to enable the",,,,

petitioner to give an appropriate reply, the consequential action thereof cannot be sustained.",,,,

Insofar as the judgment of the Supreme Court in Nidhi Kaim v. State of Madhya Pradesh and Others (supra) on which reliance has been placed,,,,

by Mr. Gogna is concerned, the Supreme Court was concerned with facts where entrance examination for admissions into medical colleges for the",,,,

year 2013 was conducted by the Board on July 07, 2013. On the same day, an FIR was registered alleging commission of various offences pursuant to",,,,

a large scale conspiracy in the context of the examination. The FIR was registered against several persons including students and some employees of,,,,

the Board. The Chairman of the Board also caused some enquiry into the allegations by orders dated October 09, 2013 and December 06, 2013. The",,,,

Board cancelled the results of 345 and 70 candidates respectively. As a consequence, admissions granted to the said students in various medical",,,,

colleges stood cancelled. Challenging those orders, writ petitions were filed, which were dismissed vide order dated April 11, 2014 by the Division",,,,

Bench Pratibha Singh v. The State of Madhya Pradesh and Ors (2014) SCCOnline M.P. 4064. The correctness of the judgment challenged before the,,,,

Supreme Court in Pooja Yadav and Anr. v. State of M.P. and Ors. SLP (C) Nos. 13629-630 of 2014 and 16257 of 2014 (Sumit Sinha v. State of,,,,

M.P. and Ors.), which were dismissed on May 19, 2014 and August 08, 2014 respectively confirming the judgment of the High Court. We may state",,,,

here, that there was a divergence of opinion between the judges, insofar as the relief to be granted to the petitioners in the case of Nidhi Kaim (supra).",,,,

Be that as it may, J. Chelameswar, J. has, in his opinion culled out the following principles:-",,,,

“(i) Where there are allegations that students resorted to ""unfair means on a large scale"" at an examination, this Court would not insist",,,,

upon registration of a formal complaint. Any reliable information suggesting the occurrence of such malpractice in the examination is,,,,

sufficient to authorize the examining body to take action because examining bodies are ""responsible for their standards and the conduct of",,,,

examinations"" and ""the essence of the examination is that the worth of every person is appraised without any assistance from an outside",,,,

source"".",,,,

(ii) A lone circumstance could itself be sufficient in a given case for the examining body to record a conclusion that the students resorted to,,,,

unfair means on a large-scale"" in an examination.",,,,

(iii) In such cases, the examining body need not hold ""a detailed quasi-judicial inquiry with a right to its alumni to plead and lead evidence",,,,

etc."" and the examining body's ""appreciation of the problem must be respected.""",,,,

(iv) To insist on the observance of the principles of natural justice, i.e. giving notice to each student and holding enquiry before cancelling",,,,

the examination in such cases would 'hold up the functioning' of the educational institutions which are responsible for maintenance of the,,,,

standards of education, and ""encourage indiscipline, if not, also perjury"".",,,,

(v) Compliance with the Rule of audi alteram partem is not necessary not only in the cases of employment of 'unfair means on large scale',,,,

but also situations where there is a 'leakage of papers' or 'destruction of some of the answer books' etc. The principle is that the rule of audi,,,,

alteram partem need not be complied with in connection with the cancellation of examinations where it would be impracticable to apply the,,,,

said principle. Adoption of unfair means on a large scale is one of them. It is not necessary to go by the percentage of the students who,,,,

were alleged to have had resorted to the practice of unfair means. When the situation is characterized as practice of unfair means on a,,,,

“large scaleâ€, the expression is used only to distinguish the situation from cases of practice of unfair means by one or two students.",,,,

There are other circumstances justifying the departure from complying with the audi alteram partem rule. They are leakage of question,,,,

papers and destruction of a large number of answer papers. The examples given therein are not exhaustive of all the categories constituting,,,,

exceptions to the application of the rule of audi alteram partem. Therefore, the percentage of the students who are alleged to have resorted",,,,

to unfair means is irrelevant. Similarly, resorting to unfair means by a “large number of students†is not the only circumstance which",,,,

justifies the non-compliance with the rule of audi alteram partem.,,,,

(vi) There is a distinction between action against an individual student on the ground that the student had resorted to unfair means in the,,,,

examination and the cancellation of the examination on the whole (or with reference to a group of students) because the process itself is,,,,

vitiated.,,,,

(vii) Thus, normally, the Rule of audi alteram partem must be scrupulously followed in the cases of the cancellation of the examinations of",,,,

students on the ground that they had resorted to unfair means (copying) at the examinations. But the abovementioned principle is not,,,,

applicable to the cases where unfair means were adopted by a relatively large number of students and also to certain other situations where,,,,

either the examination process is vitiated or for reasons beyond the control of both students and the examining body, it would be unfair or",,,,

impracticable to continue the examination process to insist upon the compliance with audi alteram partem rule.,,,,

(viii) The fact that unfair means were adopted by students at an examination could be established by circumstantial evidence.,,,,

(ix) The scope of judicial review of the decision of an examining body is very limited. If there is some reasonable material before the body to,,,,

come to the conclusion that unfair means were adopted by the students on a large scale, neither such conclusion nor the evidence forming",,,,

the basis thereof could be subjected to scrutiny on the principles governing the assessment of evidence in a criminal court.â€​,,,,

Similarly, A.K. Sapre, J. has culled out the following principles:-",,,,

(i) In a case where several candidates are found involved in ""mass copying"" or in other words, where vast majority of candidates were",,,,

found to have resorted to use of unfair means in any examination then it is not necessary for the concerned Institute to give any show cause,,,,

notice to any individual candidate before cancellation of his result;,,,,

(ii) When it is difficult to prove by direct evidence that the ""copying"" was done by the candidates then the same can be proved by drawing",,,,

inference based on probabilities and circumstantial evidence;,,,,

(iii) There are several ways in which unfair means can be resorted to by the candidates for doing copying individually or in the large scale,,,,

by vast majority of candidates;,,,,

(iv) Where few candidates are found involved in doing copying then it is necessary to give to individual candidate a show cause notice by,,,,

following Rules of natural justice before taking any action against him;,,,,

(v) There must be some material (whether direct or based on probabilities and circumstances) to prove that a candidate resorted to unfair,,,,

means for doing copying in answering his question paper;,,,,

(vi) If there is adequate material to prove that the copying was done by individual candidate or by the candidates on a large scale then even,,,,

if no report was submitted by any invigilator of any such incident yet it would be of no significance;,,,,

(vii) The Court should not act as an appellate Court over the decision of Expert Committee to examine the issue of ""copying"" or/and ""mass",,,,

copying"", i.e., copying done on a large scale by vast majority of candidates and more so when the Expert Committee has found the",,,,

candidate guilty of resorting to unfair means;,,,,

(viii) The Court should be slow to interfere in the decision taken by the Expert Committee in such cases;,,,,

(ix) If wrong answers of two candidates sitting in close proximity tallies with each other then it would be a strong circumstance of copying,,,,

done by these two candidates;,,,,

(x) This Court has consistently maintained a distinction between a case of ""copying"" and ""mass copying"", i.e. copying done on a large scale",,,,

by vast majority of candidates for applying the Rules of natural justice to the case. In the case of former, Rules of natural justice would be",,,,

applicable and hence show cause notice to individual candidate who is accused of doing copying will have to be given to such candidate,,,,

whereas in the case of later, the Rules of natural justice are not applicable and hence it is not necessary to give any show cause notice to",,,,

any candidate involved in mass copying;,,,,

(xi) The use of unfair means by any candidate is a serious matter because it affects the credibility of the examination and, therefore, once",,,,

such charge is held proved against any such candidate, the matter needs to be dealt with sternly in relation to erring candidates.â€​",,,,

There is no dispute that the respondents have themselves decided to issue two show cause notices to the petitioner. In other words, it is not the",,,,

case of the respondents that issuance of show cause notice has been dispensed with. Having issued the same, it was required for the respondents to",,,,

give all the material to the petitioner on which reliance was placed by them to prove that the petitioner was involved in malpractices. As a limited issue,,,,

of show cause concerns us in this case, we are of the view that the judgment of the Supreme Court in Nidhi Kaim (supra) shall not help the",,,,

respondents.,,,,

The show cause notices issued to the petitioner being in violation of principles of Natural Justice, the consequential order dated December 24/30,",,,,

2013 is liable to be set aside. Ordered accordingly. Consequently, the petitioner shall be appointed to the post of SI/GD as per the CPOs Examinations,",,,,

2011 in BSF with continuity of service, including notional pay fixation. He shall not be entitled to any monetary benefits. The petition is disposed of in",,,,

terms of the above. No costs.,,,,