Mahendra Kumar Meena vs The Rajasthan Public Service Commission

Alok Sharma, J.—The petitioner challenges the order dated 20.1.2014 issued by the Rajasthan Public Service Commission (hereinafter ''the Commission'') under the signatures of its Secretary cancelling the petitioner''s Rajasthan State and Subordinate Services Joint Competitive (Main) Examinations of 2012 (hereinafter ''the Examinations of 2012'') held in June 2013 and further debarring him for one year from the date of the order from appearing in any of the examination/selection conducted by the Commission.

Following the Commission''s advertisement calling prospective candidates to apply for and write the examinations of 2012 for various posts in the State and Subordinate Services in the State of Rajasthan the petitioner made an application. Having passed the preliminary examination, the petitioner was admitted to the RAS (Main) Examination which was conducted between 30.5.2013 to 10.6.2013. At the time of writing the RAS (Main) Examination at the center allotted - the Government Senior Secondary School, Meenawala, Sirsi Road, Jaipur in the subject of General English on 2.6.2013, a sudden checking/inspection was carried out at the examination center at about 9:20 A.M, the examination having started at 9:00 A.M. During the course of inspection/checking by the Inspecting Team it was found that the petitioner had not commenced writing answers to the questions in the General English subject but to have instead copied three questions from the question paper on the over leaf of his admission card. On search made, a mobile was also found and recovered from the roof of the toilet near the examination center to which the examinees had access. This was testified on the same day by the Examination Center Superintendent and the Invigilator. However, the report prepared at the relevant time indicates that there was no material found with the petitioner for copying nor in-fact the petitioner had copied anything on his answer-sheet on the basis of any cheating material in his possession. In his explanation, at the time of the inspection and drawing of the Panchnama, the petitioner stated that he was unwell, suffering from blood-pressure and that in writing the questions in the paper of General English underway on the back of his admission ticket, he had no ill motive and had not indulged any cheating.

Proceedings having been drawn of the incident in issue and statements of all concerned including the petitioner, this Examination Center Superintendent, Invigilator and Superintendent having been recorded, the petitioner was allowed to appear in the remainder papers on the scheduled dates-as in the Optional papers i.e. History-I, History-II and Philosophy-I and Philosophy-II at another center i.e. Government Rajasthan Senior Secondary School, Bajaj Nagar, Jaipur. Yet as the inquiry into incident of 2.6.2013 was underway, the petitioner''s result was withheld.

Thereafter, it appears that on 10.7.2013 the Commission issued a notice to the petitioner with reference to the incident of 2.6.2013 in the course of the examination in General English where it was found that the petitioner had admitted written down questions to be answered on the back of his admission card and where a mobile had also been found on the roof of the toilet for the use of the examinees and had been so confirmed by the Invigilator, the Center Superintendent and the Examination Supervisor. The petitioner was required to show cause as to why in the circumstances he should not be prosecuted for using of unfair means as defined under the Rajasthan Public Examination (Prevention of Unfair Means) Act, 1992 (hereinafter ''the Act of 1992'').

The petitioner in his reply dated 25.7.2013 to the said show cause notice denied the allegations of attempt to use unfair means. It was stated that the report of the Invigilator, the Supervisor and the Center Superintendent evidenced that the petitioner was found neither in possession of any examination material nor having copied in any therefrom on his answer-sheet. It was stated that no mobile had been recovered from the petitioner and therefore the petitioner was completely innocent of the allegations of use of unfair means made unjustified and the inquiry therefore be dropped. The petitioner vide letter dated 14.8.2013 was however required by the Commission to present himself for personal hearing, as the reply to the notice had not found to be satisfactory. The petitioner was put to notice of potential punishment, if found guilty and required to be present before the Commission on 22.8.2013. The petitioner appears to have availed the remedy as reflected in the impugned order dated 20.1.2014.

On hearing of the petitioner, the Commission concluded that the petitioner was guilty of resorting to unfair means in the RAS (Main) Examination of 2012 in the subject of General English consequent to which his candidature for the said examination was liable to be cancelled. The petitioner was additionally visited with the punishment of disbarment for a period of one year from the date of the order qua all examinations conducted by the Commission.

Hence this petition.

Counsel for the petitioner has submitted that the order dated 20.1.2014 is wholly malafide, arbitrary and perverse to the evidence on record. Drawing the attention of this Court to the report of the Invigilator, the Center Superintendent and the Supervisor of the examination center in issue where the petitioner wrote the RAS (Main) Examination in General English on 2.6.2013, it has been submitted that it is on record from their statements that no incriminating material relating to the paper in issue was recovered from the petitioner nor the petitioner found to have written answers to the questions in the paper in issue on that basis. It has been further submitted that the mobile phone was not recovered from the petitioner albeit the petitioner ailment to the factum of having copied three questions from the question paper relevant to the General English examination on the said date on his admission ticket. It has been submitted that even if the circumstance of the petitioner having copied of three questions on his admission ticket were unexplained and may seem to be peculiar and odd, yet this could not by itself without anything more constitute a resort to unfair means within the meaning of the term as defined in Section 2(c) of the Act of 1992. Counsel submitted that in these circumstances resort to the Act of 1992 was misplaced, unwarranted and reflective of evident legal malafides as a provision of law otherwise salutary in nature, has been misused against the petitioner without good cause. Further impugning the order dated 20.1.2014 as an example of gross arbitrariness by RPSC against a defenceless applicant (petitioner in this case), it has been prayed that the writ petition be allowed and the impugned order dated 20.1.2014 be quashed and set aside.

Per-contra, counsel for the respondent Commission has submitted that in the sudden checking/inspection at the center where the petitioner was writing the paper in General English relating to RAS (Main) Examination, 2012, the petitioner''s answer-sheet was found to be blank and instead three questions to be answered at the examination, found copied on the admission ticket of the petitioner. It has been submitted that this peculiarity, quite unusual and suspicious in itself invited a wider inquiry at the hands of the inspection team, the Invigilator, Supervisor and the Center Superintendent in the course of which a mobile phone was found and recovered on the roof of the toilet to be used by the examinees at the center and to which the petitioner also had access as a right. The petitioner in his reply submitted on 25.7.2013 to the show cause notice dated 10.7.2013 only stated that the mobile phone was not recovered in his presence but had not denied the factum of the mobile phone having indeed been recovered from the roof of the toilet. Counsel submitted that ''Unfair Means'' under the Act of 1992 has been defined in section 2(c), as an act in relation to an examination to resort to unauthorized help from any person, or from any material written, recorded or printed, in any form whatsoever or the use of any unauthorized telephonic, wireless or electronic or other instrument or gadget. It has been submitted that the issue has been considered in all its aspects by the Commission on holistic evaluation of evidence and surrounding circumstances and it has been found that the circumstances taken together, were sufficient to conclude that the petitioner was engaged in using unfair means albeit the benefit of the unfair means was not reflected in the petitioner''s answer-sheet for reason of the sudden checking/inspection having been carried out within 20 minutes of the commencement of the examination. Counsel for the petitioner has empathetically submitted that as to why else the petitioner while leaving the answer-sheet almost blank till 9:20 A.M instead write down three questions from the question paper to be answered on his admission ticket. It has been submitted that the act of the petitioner in conjunction with the recovery of a mobile phone on the roof of the toilet to which the petitioner had access, was sufficient for the Commission to come to a conclusion that the petitioner was in the course of resort to unfair means and had been espied prior to such use as per his plan. It has been submitted that public examinations have to retain their credibility and the purity of the examination process has to be safeguarded with the utmost determination. Counsel submitted that in the circumstances the conclusion of the Commission in passing the impugned order dated 20.1.2014 cannot be said to be either malafide or arbitrary and prayed that the petition therefore, be dismissed.

Heard. Considered.

The case at hand is not one of no evidence. It is an admitted fact that in the course of sudden checking/inspection during the General English paper relating to RAS (Main) Examination, 2012, the petitioner was found to have copied three questions of the question paper on his admission ticket and had not attempted any question on the answer-sheet till 9:20 A.M. The oddity of the petitioner''s conduct and action for which no reasonable explanation come forth from the petitioner, does not seem to have been an accident or a divine conspiracy but rather was a deliberate act, quite apparently for a purpose. The finding of mobile phone on the roof of a toilet to which all the examinees including the petitioner at the center had access was the connecting link with the petitioner. The mere fact of the mobile not being recovered from the petitioner is of no event. The petitioner in his reply to the show cause notice dated 10.7.2013 has not denied the factum of the recovery of mobile phone from the toilet of the examination center. The report of the Invigilator/Center Superintendent has testified to the fact of mobile phone being found on the roof of the toilet of the examination center. The mere fact that the petitioner had not at point of time of the sudden inspection/checking used the mobile phone, is not of much relevance. In the over-all facts of the case the Commission which deals with examinations on a regular basis and consequently with use of unfair means as an expert body came to the conclusion that the facts of the case warranted, a finding that the petitioner was at the time relevant engaged in the course of engaging in the use of unfair means defined in Act of 1992 and hence liable to be punished with the cancellation of the said examination and further visited with disbarment for a year from all of RPSC''s examinations. There is nothing perverse in the conclusions of the Commission in finding the petitioner guilty on the basis of material before it. It is not for this Court in the exercise of its powers under Article 226 of the Constitution of India to re-evaluate and reweigh the evidence before the Commission.

Aside of the aforesaid, it would be well to emphasize that in domestic inquiries, as the inquiry before the Commission was in its nature, neither the procedure as in civil cases applies, nor is Indian Evidence Act, 1872 applicable. Only principles of fairness in the inquiry attract. Material logically probative, even if hear-say evidence, can be acted upon, provided it has reasonable nexus and buttresses probability. This principle has been enunciated by the Hon''ble Supreme Court in the case of Workmen of Balmadies Estates Vs. Management Balmadies Estate and Others, (2008) 3 CLT 12 : (2009) 2 CTC 746 : (2008) 116 FLR 731 : (2008) 1 JT 587 : (2008) 1 LLJ 673 : (2008) 1 SCALE 517 : (2008) 4 SCC 517 : (2008) AIRSCW 927 : (2008) 1 Supreme 405 .

On the test laid down by the Hon''ble Apex Court, referred to above, and taking into consideration the over all facts and circumstances of the case, this Court finds it unable to concur with the submissions of the counsel for petitioner that the impugned order dated 20.1.2014 is arbitrary or malafide. Contrarily the order impugned is a well considered one based on the material before the RPSC and passed on a fair opportunity to the petitioner to set up his defence.

Consequently, there is no force in the petition. Accordingly dismissed.