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2018 DIGILAW 1438 (ALL)

KRISHNA GOPAL SINGH v. STATE OF U. P.

2018-06-28

VIVEK KUMAR BIRLA

body2018
JUDGMENT Hon’ble Vivek Kumar Birla, J.—Heard Sri Ritesh Srivastava, learned counsel for the petitioners and Sri Vikram Bahadur Yadav, learned Standing Counsel appearing for the respondents. 2. Present petition has been filed with the following prayer : (i) Issue a writ, order or direction in the nature of certiorari to annul the impugned written examination held on 18.6.2018 in two shifts for the purpose of Direct Recruitment to the post of Constable Civil Police and Constable P.A.C. - 2018 conducted by the respondent No. 3. (ii) Issue a writ, order or direction in the nature of mandamus to direct the respondents to conduct the written examination afresh to save the sanctity of the examination. (iii) ..... (iv) .....” 3. Submission of learned counsel for the petitioner is that Rule 15 (2) of the U.P. Police Constables and Head Constables Service (Ist Amendment) Rules, 2017 provides for written examination and the examination held on 18.6.2018 was held in gross violation of Rule 15(2) of the aforesaid Rules and submits that all the questions of Test Booklet Set No. 16 supplied in the first shift have been repeated in the Test Booklet Set No. 08 in the second shift of written examination and repetition of identical questions in the second shift is against the sanctity of the examination and is outcome of laxity on the part of the respondents and inspite of the full knowledge the respondents have done nothing and therefore, the examination dated 18.6.2018 is liable to be set aside. 4. It is further submitted that this amounts to leakage of question papers and thus, the written examination is liable to be set aside. 5. Attention was drawn to Rule 15(2) of the aforesaid Rules at page 113 and 114 of the paper book. The said rule provides that written examination may be conducted on one date in a single shift or in more than one shift or on more than one date in different shift with different question papers or through computer based written examination system and as per Note-2, in such circumstances procedure for normalization is to be adopted. 6. The said rule provides that written examination may be conducted on one date in a single shift or in more than one shift or on more than one date in different shift with different question papers or through computer based written examination system and as per Note-2, in such circumstances procedure for normalization is to be adopted. 6. Attention was also drawn to Clause 4.1 of the advertisement to submit that according to the number of candidates the written examination may be taken either on one date and on shift or in more than one shift or on different dates with different question papers and different shifts. 7. In support of his arguments learned counsel for the petitioners has placed on judgments of Hon’ble Apex Court in the cases of Chairman, All India Railway Recruitment Board and another v. K. Shyam Kumar and others, (2010) 6 SCC 614 (paragraph 50), B. Ramanjini and others v. State of A.P. and others, (2002) 5 SCC 533 (paragraphs 7 and 8) and Tanvi Sarwal v. Central Board of Secondary Education and others, (2015) 6 SCC 573 (paragraphs 20 and 23). 8. Per contra, Sri Yadav, learned Standing Counsel has stated that in the present recruitment 36 sets of question papers were prepared and were distributed on different dates in different centres and therefore, it cannot be said that it was a case of leakage of question paper. It was further submitted that Rule 15(2) Note (2) of the aforesaid Rules is regarding normalization of marks obtained by the candidates in such examination and the reliance placed on the aforesaid rule is misconceived. He further submitted that there is not even slightest evidence of leakage of question papers. 9. I have considered the rival submissions and have perused the record. 10. Before proceeding further it would be appropriate to note paragraphs 10,11 and 12 of the writ petition, which are quoted as under : “10. That the petitioner No. 1 appeared in the written examination in the 1st Shift on 18.6.2018 and the Test Booklet A-FN bearing No. 1553208 and Series/Set 16 was supplied to the petitioner No. 1 by the invigilator. The copy of the said booklet has already been annexed as Annexure 1 to this writ petition. 11. That the petitioner No. 1 appeared in the written examination in the 1st Shift on 18.6.2018 and the Test Booklet A-FN bearing No. 1553208 and Series/Set 16 was supplied to the petitioner No. 1 by the invigilator. The copy of the said booklet has already been annexed as Annexure 1 to this writ petition. 11. That the petitioner No. 2 appeared in the written examination in the 2nd Shift on 18.6.2018 and the Test Booklet A-FN bearing No. 1539232 and Series/Set 8 was supplied to the petitioner No. 2 by the invigilator. The copy of the said booklet has already been annexed as Annexure 2 to this writ petition. 12. That both the petitioners belong to Jaunpur hence they know each other and after completion of their Written Examination, they discussed over the question paper and they found that contents of their question papers were identical with same or different serial numbers.” 11. A perusal of the aforesaid paragraphs would clearly indicate that the Test Booklet A-FN bearing No. 1553208 and series/set 16 was given to the petitioner No. 1, whereas Test Booklet A-FN bearing No. 1539232 and series/set 08 was supplied to the petitioner No. 2. It is not in dispute that the petitioner No. 1 has appeared for examination in R.B.M. Inter College, Kareli, opposite Power House, Allahabad, whereas the petitioner No. 2 has appeared for examination at Guru Madhav Prasad Shukla Inter College, A.D.A. Colony, Jhalwa, Allahabad. In paragraph 12 of the petition a categorical statement has been made that it is only after completion of their examination both the petitioners, who belong to the same district of Jaunpur, have discussed and found that their question papers were identical with same or different serial numbers. 12. From the abovenoted paragraphs it is clear that the petitioners have appeared in different shifts at different centres, which are at a considerable distance though in the same district and were given different Test Booklet series/set with different numbers. No doubt, it is being claimed that the questions were identical though some with same and some with different serial numbers, however, it is nowhere stated that the petitioner No. 2 had foreknowledge of the question paper. Even petitioner No. 1 has also not asserted foreknowledge of the question paper. Therefore, it cannot be said that it is a case of leakage of question paper. 13. Even petitioner No. 1 has also not asserted foreknowledge of the question paper. Therefore, it cannot be said that it is a case of leakage of question paper. 13. Rule 15(2) of the aforesaid rules are quoted as under : “15(1) ..... 15(2) Written Statement Candidates, whose applications are found correct, shall be required to appear in written examination. In the written examination, the Board will keep one objective type question paper. The written examination will be of 300 marks and it shall have questions from General Knowledge, General Hindi, Numerical and Mental Ability, Mental Aptitude/I.Q. and Reasoning Ability. Candidates will be awarded negative marks for wrong answers in the written examination. The detailed syllabus for the examination will be decided by the Board and will be displayed on its own website. The Board will decide at its own level to conduct written examination on one date in a single shift or in more than one shift or one more than one date in different shifts with different question papers or through computer based written examination system. Note : (1) Detailed procedure for written examination shall be determined by the Board and will be displayed on its own website. (2) If the Board decides to conduct the written examination in more than one shift or on more than one date in different shifts with different question papers, then the Board may, if necessary, decide the process of normalization of marks obtained by candidates appearing in such examination at its level and will publish it in its advertisement.” 14. Insofar as judgment relied on by learned counsel for the petitioners are concerned, the facts of the case are entirely different. 15. In the case of Tanvi Sarwal (supra) paragraph 20 clearly reflects that it was a case where the solved answers of a particular code and retrieved from the mobile set of one of the persons arrestedýÿ were found to be correct and there was definite evidence on record and therefore, it was a case where there was enough evidence of leakage of question paper and thus, the aforesaid case is clearly distinguishable to the present case. Paragraph 20 of Tanvi Sarwal (supra) is quoted as under : “20. Paragraph 20 of Tanvi Sarwal (supra) is quoted as under : “20. As would be available from the status reports, out of 123 solved answers of a particular code and retrieved from the mobile set of one of the persons arrested i.e Dr Bhupender, 102 answers were found correct on a comparison with the answer key provided by CBSE. As referred to hereinabove, 358 mobile numbers had been pressed into service and at least 300 vests fitted with electronic devices have been used. Having regard to the uncompromising essentiality of a blemishless process of examination involving public participation, we have no alternative but to hold that the examination involved, suffers from an infraction of its expected requirement of authenticity and credence. We are conscious of the fact that every examination being conducted by a human agency is likely to suffer from some shortcomings, but deliberate inroads into its framework of the magnitude and the nature, as exhibited, in the present case, demonstrate a deep-seated and pervasive impact, which ought not to be disregarded or glossed over, lest it may amount to travesty of a proclaimed mechanism to impartially judge the comparative merit of the candidates partaking therein. If such an examination is saved, merit would be a casualty generating a sense of frustration in the genuine students, with aversion to the concept of examination. The possibility of leaning towards unfair means may also be the ultimate fallout. Even if, one undeserving candidate, a beneficiary of such illegal machination, though undetected is retained in the process it would be in denial of the claim of more deserving candidates. At present, the examination stands denuded of its sanctity as it is not possible to be cleansed of all the participating beneficiary candidates with certainty. We are thus, on an overall assessment of the materials on record, left unpersuaded to sustain the examination. We must observe that till this stage of the investigation, no conscious lapse or omission on the part of the Board, contributing to the otherwise appalling mischief has surfaced.” 16. We are thus, on an overall assessment of the materials on record, left unpersuaded to sustain the examination. We must observe that till this stage of the investigation, no conscious lapse or omission on the part of the Board, contributing to the otherwise appalling mischief has surfaced.” 16. In the present case the written examination was taken on first date i.e. 18.6.2018 in two shifts and admittedly, in the present case the question papers that are being challenged before this Court are of the same date and the aforesaid papers were not supplied or given to the candidates on the next date i.e. 19.6.2018, therefore, when the petitioners have admittedly came to know about the similarity of the questions in the evening only after they have appeared and answered the written examination and have concluded the same, it cannot be said that there was a leakage of question paper. 17. In paragraph 50 of Chairman, All India Railway Recruitment Board (supra) the Hon’ble Apex Court has held as under : “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 was 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 re-test so as to achieve the ultimate object of fair selection.” 18. A perusal of the aforesaid paragraph would also clearly indicate that in this case there had been some evidence of leakage of question papers though limited but the same was ignored by the High Court and this was set aside by the Hon’ble Apex Court by holding that even a minute leakage of question paper would be sufficient to besmirch the written test and to go for a re-test so as to achieve the ultimate object of fair selection. In the opinion of the Court this case is also distinguishable inasmuch as in the present case there is not even slightest evidence of any leakage and both the petitioners have attempted the paper and the written examination was over and it is only thereafter they came to know about the similarity of question papers. In the opinion of the Court this case is also distinguishable inasmuch as in the present case there is not even slightest evidence of any leakage and both the petitioners have attempted the paper and the written examination was over and it is only thereafter they came to know about the similarity of question papers. As a matter of fact allegation of leakage has not even been asserted in the entire petition and argument of learned counsel for the petitioner is without even there being any pleading. 19. Insofar as the judgment of Hon’ble Apex Court in the case of B. Ramanjini (supra) is concerned, perusal whereof clearly indicates that foreknowledge of the questions is necessary and it has been noticed that there was leakage of question papers, which were published in a newspaper and photocopies were available for sale at a price of Rs. 2,000/- each and therefore, there was a clear evidence of leakage of question papers and the petitioner had foreknowledge of such leakage, which is not the case here. Paragraphs 7 and 8 of the aforesaid judgment are quoted as under : “7. In matters of this nature, as to how the Courts should approach is explained in Bihar School Examination Board v. Subhas Chandra Sinha, (1970) 1 SCC 648 and Board of High School and Intermediate Education, U.P., Allahabad v. Ghanshyam Das Gupta, AIR 1962 SC 1110 . The facts revealed above disclose not only that there was scope for mass copying and mass copying did take place in addition to leakage of question papers which were brazenly published in a newspaper and the photocopies of the question papers were available for sale at a price of Rs 2000 each. These facts should be alarming enough for any Government to cancel the examinations whatever may be the position in regard to other centres. It is clear that so far as the centre at Anantapur district is concerned, there was enough reason for the Government to cancel the examinations. We have no doubt in our mind that what has weighed with the Government is the letter of the Collector accompanied by the report of the Superintendent of Police, though unfortunately the same does not seem to have been made available to the High Court, which was the basis for making the order on 15-5-1998 cancelling the examination and holding of the fresh examination. 8. 8. Further, even if it was not a case of mass copying or leakage of question papers or such other circumstance, it is clear that in the conduct of the examination, a fair procedure has to be adopted. Fair procedure would mean that the candidates taking part in the examination must be capable of competing with each other by fair means. One cannot have an advantage either by copying or by having a foreknowledge of the question paper or otherwise. In such matters wide latitude should be shown to the Government and the Courts should not unduly interfere with the action taken by the Government which is in possession of the necessary information and takes action upon the same. The Courts ought not to take the action lightly and interfere with the same particularly when there was some material for the Government to act one way or the other. Further, in this case, the first examinations were held on 19-4-1998. The same stood cancelled by the order made on 15-5-1998. Fresh examinations were held on 11-7-1998 and results have been published on 29-7-1998. Interviews were however held on 29-7-1998 (sic 27-8-1998) in such cases. The events have taken place in quick succession. The parties have approached the Court after further examinations were held and after having participated in the second examination. It is clear that such persons would not be entitled to get relief at the hands of the Court. Even if they had not participated in the second examination, they need not have waited till the results had been announced and then approached the Tribunal or the High Court. In such cases, it would lead to very serious anomalous results involving great public inconvenience in holding fresh examinations for a large number of candidates and in Anantapur district alone nearly 1800 candidates were selected as a result of the examinations held for the second time. Therefore, we think, the High Court ought not to have interfered with the order made by the Government on 15-5-1998 in cancelling the examinations and holding fresh examination.” 20. Learned counsel for the petitioner has placed reliance on newspaper cutting. I am not inclined to place any reliance on such newspaper report in absence of any other cogent evidence to support the case. 21. Learned counsel for the petitioner has placed reliance on newspaper cutting. I am not inclined to place any reliance on such newspaper report in absence of any other cogent evidence to support the case. 21. It may also be noticed that categorical stand of the State is that 36 sets of question papers were prepared and different set is distributed at different centres and places on different dates. 22. Under such circumstances, the rulings that are relied on by learned counsel for the petitioners are clearly distinguishable in the facts and circumstances of the present case. 23. Under such facts and circumstances of the case, I do not find any merit in the present petition and the same is accordingly dismissed.