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2013 DIGILAW 1145 (PAT)

Munna Kumar v. Union of India

2013-09-20

RAVI RANJAN

body2013
ORDER I have heard learned counsel for the petitioners, respondent no.1, State of Bihar and the National Council for Vocational Training. 2. Petitioners are aggrieved by a press communiqué dated 24.08.2013 appended with all the writ petitions, however, as Annexure 5 in the C.W.J.C. No.17739 of 2013, by which the examination of various trades conducted in the State of Bihar in the Month of July, 2013 has been cancelled and fresh programme for re-examination of All India Trade Test of Craftsmen under Craftsmen Training Scheme for Engineering and Non-Engineering Trades for the State of Bihar has been notified. 3. Previous stand taken by the petitioners was that the examination has been cancelled without any rhyme and reason and the petitioners are being compelled unnecessarily to appear in the re-examination. However, in view of the fact that the basis of cancellation is evident from the public notice, as contained in Annexure 5, which appears to be a letter dated 14.08.2013 issued by the D.G.E.&T. authority, the petitioners have submitted that even if irregularities have been found at few centres, that would not be sufficient reason for cancelling the entire examination. 4. The respondent nos. 2 to 4 in C.W.J.C. No.17739 of 2013, respondent nos.3 to 6 in C.W.J.C. No.18177 of 2013, respondent no.4 in C.W.J.C. No.18149 of 2013 and respondent nos.5 to 9 in C.W.J.C. No.18255 of 2013 have filed the counter affidavit and the aforesaid letter as well as the letter of the Principal Secretary, Labour Resources Department, Bihar which had formed the basis for issuance of the letter by the Director General, Employment and Training, Ministry of Labour and Employment, Government of India as mentioned in the public notice, has also been appended. Though counter affidavits have been served today upon the petitioners, but in view of the submission made on behalf of the petitioners that there would be no requirement of adjournment for filing a rejoinder to the counter affidavit, these matters have been finally heard with the consent of the parties at this stage and are being disposed of by a common order. 5. 5. The State authorities made recommendation for cancellation of All India Trade Test held in July, 2013 chiefly on the ground that the examination concerned suffers from malpractices including tampering with the seal of bundles of the questions papers which were kept in the concerned Banks and leakage of question papers at several centres in different Districts of the State of Bihar. Therefore, the authority concerned has come to the view that sanctity of the examination could not be ensured as the process of examination suffered from several lacuna and faults giving rise to such malpractices. Thus, recommendation was made for cancellation of examination and holding of re-examination at the earliest. That had led to issuance of impugned letter dated 14.08.2013 by the office of the Director General, Employment and Training cancelling the examination concerned. Learned counsel appearing for the State has submitted that first information reports have also been lodged in this regard at Nawada, Munger and Darbhanga. 6. On the other hand, learned counsel appearing for the petitioners tried to canvass that, for certain irregularities committed at some of the centres in about 5 to 6 districts, students of the entire State of Bihar should not be made to suffer as there is no complaint from other districts. It is further contended that a general presumption cannot be made by the authorities concerned without any material in hand that the leakage of question papers at 4 to 5 centres would have such an effect that it could be presumed that the entire examination suffers from malpractices. That presumption would be far-fetched and sweeping in nature and it is nest urged that the letter of the State authorities dated 06.08.2013 recommending for cancellation of examination is not based on sufficient material and thus is cryptic and absolutely lacking in details. It is further urged that the Central Government authority has simply accepted the recommendation by the State authority and order for cancellation of the examination and for fixing the date for re-examination. No reasons have been assigned therein. It has also been urged on behalf of the petitioners of C.W.J.C. No.17739 of 2013 that there no irregularity has been reported in Hajipur centre ,thus, there is no reason why examination of such centre should also be cancelled. No reasons have been assigned therein. It has also been urged on behalf of the petitioners of C.W.J.C. No.17739 of 2013 that there no irregularity has been reported in Hajipur centre ,thus, there is no reason why examination of such centre should also be cancelled. It is next contended that I.T.I.s under the concerned scheme are imparting training to the students and such training is chiefly the test of practical and not of theoretical aspect. Practical examinations having been already held, there was no requirement for cancelling the examination on the basis of allegation of malpractices. That apart, it has also been urged that the decision of cancellation of examination would cast hardship on the students of the State of Bihar as they would be deprived from appearing in different competitive examination, tests or interviews which are to be held for providing employment by various authorities. Learned counsel for the petitioners drew attention of this Court towards Appendix VIII of the Trade Test Procedure for the Craftsmen Training Scheme under the Aegis of NCVT, in particular clause (v) under the heading of Supervisors and invigilators. It has been urged that from the aforesaid provision it would appear that the observers are required to submit a report to the Directorate General of Employment and Training within two weeks from the last date of the trade test that would include the report regarding the fairness in the examination and, as such, the authority of State of Bihar was not competent to recommend any cancellation of the All India Trade Test. Copies of some of the reports have been produced at the time of hearing to impress upon this Court that such observers or the persons who were holding examination have not submitted any adverse report regarding the conduct of the examination concerned. 7. Per contra, learned counsel appearing for the State submits that the question papers were leaked at different centres on all the four dates of examination in the different districts which would be sufficient enough to hold that the process of examination was lacking fairness. It is stated that once the question papers are leaked before the examination are held at different centres it could easily be communicated to other centres within the State with the help of modern technology available at the doorstep of common man. It is stated that once the question papers are leaked before the examination are held at different centres it could easily be communicated to other centres within the State with the help of modern technology available at the doorstep of common man. Apart from above, some other incidents have also been brought to the notice of this Court. It has been urged that first information reports have also been lodged. For example, it has been stated in the counter affidavit that the District Magistrate, Nalanda had written a letter dated 27.07.2013 on the basis of an enquiry made by the D.C.L.R., Nawada that the question papers of all the subjects were taken out by the Centre Superintendent from the Bank prior to the date of examination in contravention of the examination rules and instructions. The District Magistrate made recommendation to cancel the examination. It has also been stated that even the seals of the concerned question papers kept in safe custody in Bank was found to be broken indicating towards commission of malpractices. The District Magistrate, in his letter dated 01.08.2013 appended to Annexure C with the counter affidavit filed on behalf of the respondent nos.3 to 6 in C.W.J.C. No.18177 of 2013, has stated that the Centre Superintendent himself was engaged in malpractices and he had leaked the question papers in the preceding evening to the date of examination itself and was distributing the same after accepting Rs.4,000/-. F.I.R. was also lodged in Darbhanga and Munger. The letter of Principal Secretary also indicates towards leakage and other malpractices at Munger, Darbhanga, Forbesganj in Araria district, Hajipur, Muzaffarpur, Nawada and Bhagalpur etc. At some places, when the question papers were found to be less in number, they were photocopied and distributed completely against the rules and procedure of examination and putting a question to the fairness and sanctity of the same. It has categorically been stated that the sealed question papers have been found broken and tampered in many Bank branches. Surprisingly far less number of question papers were sent to the examination centre by the Center Government authority which had led to photocopying of question papers at the centre concerned. Therefore, the Principal Secretary has requested for fixing responsibility also in this regard. Surprisingly far less number of question papers were sent to the examination centre by the Center Government authority which had led to photocopying of question papers at the centre concerned. Therefore, the Principal Secretary has requested for fixing responsibility also in this regard. It is urged that it has rightly been stated in the letter concerned that if there is leakage of question even at few centre that would definitely put a question mark to the sanctity of entire examination as in modern world, since the communication system has become so strong and efficient that it can be communicated to the farthest place within minutes. Learned counsel in support of his aforesaid submission has placed reliance upon a decision of the Apex Court in Chairman, All India Railway Recruitment Board and Another Vs. K. Shyam Kumar and Others [(2010) 6 Supreme Court Cases 614]. The Apex Court has observed that leakage of question paper, even for a minute, would be sufficient to besmirch the written test and to go for a retest so as to achieve the ultimate object of fair selection as that was obviously the case of the examination held for the purpose of selection. In the aforesaid case the validity of the order of the Railway Board directing the Railway Recruitment Board to conduct retest for recruitment to Group D posts was in issue. The matter traveled to the High Court of Andhra Pradesh which could find no reason to cancel the first written examination and to conduct a retest for 2690 candidates who got minimum qualifying marks in the written test which included 62 candidates against whom there were serious allegations of impersonation. The Supreme Court has held that the decision taken by the Board for retest in the facts and circumstances of the case was fair, reasonable, well balanced and harmonious. However, by accepting the third alternative, the High Court was perpetuating the illegality since there were serious allegations of leakage of question papers, large scale of impersonation by candidates and mass copying in the first written examination. Learned counsel further places reliance upon yet anther decision of the Apex Court in Director (Studies), Dr. Ambedkar Institute of Hotel Management, Nutrition & Catering Technology, Chandigarh and Others Vs. Vaibhav Singh Chauhan [(2009) 1 Supreme Court Cases 59]. Learned counsel further places reliance upon yet anther decision of the Apex Court in Director (Studies), Dr. Ambedkar Institute of Hotel Management, Nutrition & Catering Technology, Chandigarh and Others Vs. Vaibhav Singh Chauhan [(2009) 1 Supreme Court Cases 59]. It is submitted Hon’ble Supreme Court has observed that for ensuring progress of our country, we must maintain high education standard. This is only possible if malpractices in examinations in educational institutions are curbed with an iron hand. Learned counsel next places reliance upon a decision rendered by a Division Bench of this Court in Bihar School Examination Board through its Chairman Sinha Library Road, Patna Vs. Rajeev Kumar and Ors [ 2005(1) PLJR 75 ]. It is contended that, in identical situation, the Division Bench of this Court has affirmed the cancellation of examination and has held that the decision of the Bihar School Examination Board cannot be interfered with in spite of having a sympathy in favour of the petitioner-respondents due to the reason that the displaced sympathy ends in miscarriage of justice. 8. Learned counsel appearing for the N.C.V.T. also adopts the averments made by on behalf of the State. 9. I find force in the submission raised on behalf of the respondents. The Apex Court in Chairman, All India Railway Recruitment Board (supra) has observed as under:– “43. We, therefore hold, applying the test of Wednesbury unreasonableness as well as the proportionality test, the decision taken by the Board in the facts and circumstances of this case was fair, reasonable, well balanced and harmonious. By accepting the third alternative, the High Court was perpetuating the illegality since there were serious allegations of leakage of question papers, large scale of impersonation by candidates and mass copying in the first written test. 50. We are also of the view that the High Court was in error in holding that the materials available relating to leakage of question papers were limited and had no reasonable nexus to the alleged large-scale irregularity. Even a minute leakage of question paper would be sufficient to besmirch the written test and to go for a retest so as to achieve the ultimate object of fair selection.” 10. Even a minute leakage of question paper would be sufficient to besmirch the written test and to go for a retest so as to achieve the ultimate object of fair selection.” 10. The Division Bench of this Court in Bihar School Examination Board (supra) has held that it is the duty cast upon the statutory body to hold the examination concerned in a manner so as to maintain the discipline and purity in the examination. The order is not to be interfered with unless that is perverse, based on no material, arbitrary or against any statutory provision. The relevant passage from the aforesaid decision is reproduced as under for better appreciation:– “9. The main question in this case is as to whether the decision taken by the Board in the aforesaid view is valid or not? In this connection, we may mention that when a statutory body is entrusted to hold examination then that body has to be given freedom to conduct the examination so as to maintain the discipline and purity in the examination. Unless the order passed by the authority is perverse, based on no material, arbitrary and against the statutory provision, the Court will not interfere only on the ground that a different view can be taken on the materials than what has been taken by the statutory authority or the case requires sympathy because the innocent persons will suffer due to cancellation of their examination.” 11. Since the examination is being conducted under the guidance of the Directorate of Employment & Training, Bihar, being one of the arms of the State, it cannot be held that the Principal Secretary of the Department was not empowered to make any recommendation if it is found by him that the examination suffers from malpractices and leakage of question papers. Since the examination is being conducted under the guidance of the Directorate of Employment & Training, Bihar, being one of the arms of the State, it cannot be held that the Principal Secretary of the Department was not empowered to make any recommendation if it is found by him that the examination suffers from malpractices and leakage of question papers. From the averments made in the counter affidavit as well as in the concerned letter of the Principal Secretary dated 06.08.2013, it appears that he had considered entire materials available including the recommendation of the District Magistrate and other authorities as well as the first information report having been lodged in different districts during the examination for commission for malpractices as well as leakage of question papers and, thereafter, he came to the conclusion that the leakage of question papers on each and every date of examination in all the subjects at some centres and some districts of the State of Bihar would definitely vitiate the entire examination as the leaked papers could well have been circulated to each and every corner of the State by easily available means of communication. In my opinion, it is the duty of the authorities who are conducting the examination to hold and conduct it in fair way and if, in their own opinion, the examination could not be conducted with all the fairness and reasonableness and suffers from the vice of leakage of question papers and other malpractices and if on such materials the decision for cancelling the examination has been taken, it does not warrant interference by this Court under Article 226 of the Constitution of India unless arbitrariness and unreasonableness or such decision having been taken in contravention to the any statute is apparent. Of course, due to such decision some genuine students would also face hardship but, as has been held by the Division Bench of this Court, this Court may have sympathy for those students but if the authorities conducting the examination are themselves of the opinion that re-examination should be held in the facts and circumstances of the case, it would not be appropriate case for interference by this Court. 12. In above view of the matter, these writ applications are dismissed. 12. In above view of the matter, these writ applications are dismissed. However, since the Principal Secretary has specifically stated that due to supply of lesser number of question papers by N.C.V.T. such situation has arisen in several districts and has recommended for fixing the responsibility, therefore, the authorities of the N.C.V.T. would be required to examine the issue and take appropriate action in this regard and ensure that such lapse does not occur again in future. So far the issue raised by the petitioner that the Central Government authority has not applied its mind is concerned, that is noted only to be rejected as it appears from the order that the recommendation made by the State authority was considered and found correct and thereafter a decision was taken in such manner. 13. However, before parting with the matter, I must discuss another issue. A newspaper dated 19.09.2013 has been produced at the time of hearing which contains a news article disclosing that there is apprehension of leakage of question papers again specially of the examination which is to be held on 24th of September 2013 as the Manager of the State Bank of India has already lodged one F.I.R. in this regard. Though this Court would not form any opinion on the basis of the news published in the newspaper, however, it would definitely caution the authority that if the erroneous process and procedure of examination is repeated and perpetuated that would itself be very unfair and unreasonable on the part of respondents, therefore, the respondents should take care of the situation. In case they come to the conclusion that there is some truth in the newspaper report then proper action should be taken by them. 14. I must also indicate that no issue other that having been dealt with as above has been raised by the parties.