(ORDER)
(Delivered by Hon'ble Mr. Rakesh Sagar Jain, Member (J)
1. Applicant Sahil Sharma and 25 other applicants have filed the present O.A. seeking the following reliefs:
"(a) allow the instant Original Application;
(b) quash select list issued pursuant to the advertisement notification no. 01 of 2013, dated 12.03.2013 issued by the
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respondents for the post of Fireman/Fireman Driver as the same is illegal as the question paper of the said examination was available in the Public domain before the written examination;
(c) Quash the order No. 823 of 2020 dated 04.10.2020 by virtue of which sanction has been accorded for the appointment of private respondents;
(d) Declare the written examination conducted by the respondents on 20.09.2020 pursuant to the advertisement notice no. 01 of 2013 dated 12.03.2013 as null and void as the same is conducted in a partial manner by adopting corrupt practices and unfair means;
(e) Direct the respondents to re-conduct the written examination after declaring the written examination conducted on 20.09.2020 as null and void for the post of Fireman and Fireman Driver;
(f) Restrain the respondents from allowing the private respondents/selectees to join against the posts of Fireman/Fireman Driver pursuant to sanction of appointment issued vide order no. 823 of 2020 dated 04.10.2020;
(g) Direct the respondents to produce entire CCTV Record of the written examination conducted in various centers for the perusal of this Hon'ble Tribunal;
(h) Any other order or direction which this Hon'ble Court may deem fit or proper in the facts and circumstances of the case."
2. Applicants are aggrieved by select list culminating into order No. 823 of 2020 dated 04.10.2020 whereby sanction has been accorded to the appointment of private respondents as Fireman/Fireman Driver in response to advertisement notice No. 01 of 2013 dated 12.03.2013 issued for 815 posts. As per the applicants, the criteria prescribed for appointments was: Total points 100 consisting of Written test of 65
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marks; Qualification 10th(Sec. School) = 5 marks, 10 + 2 (Hr. Sec) = 5 marks, Graduation =5 marks and Viva Voce = 20 marks.
3. Applicants have challenged the impugned order on a number of grounds. To have a clear point of view of the opposing sides, Seriatim wise ground of challenge in the O.A. and its reply in the counter affidavit together with decision taken by the Tribunal is as below:
GROUND - 1
Through means of WhatsApp, the examination paper was leaked out before
8 A.M. on 20.09.2020 whereas the paper was to be held at 11 A.M. on 20.09.2020 as is apparent from WhatsApp shot and the question paper series-A;
Reply: Respondents in paragraph no. 10 have given the details of the procedure deployed by them in making the arrangement for the conduct of the selection process. On the question of the allegations of paper leak, the case of the official-respondents is that the posts on Facebook and WhatsApp had appeared two days after select list was released on 03.10.2020 and as per enquiry, it emerged that the date and time of the screenshots have been morphed by using android application namely Whathack which enables the user to alter the date and time of the image taken and share in Instant
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Messaging App with altered dates. These posts surfaced after 15 days of the examination.
We have considered the arguments of the learned counsels for the opposing parties. The first ground argued by learned counsel for applicants is that through means of WhatsApp, the examination paper was leaked out before 8 A.M. on 20.09.2020 whereas the paper was to be held at 11 A.M. on 20.09.2020 as is apparent from WhatsApp shot and the question paper series-A and referred to the photoshoots attached to the O.A. therefore, the leakage of the examination papers vitiates the entire examination which deserves to quashed and direction be given to hold fresh examination. On the other hand. it was argued by learned AAG that the posts on WhatsApp had appeared two days after select list was released on 03.10.2020 and as per enquiry, it emerged that the date and time of the screenshots have been morphed by using android application namely Whathack which enables the user to alter the date and time of the image taken and share in Instant Messaging App with altered dates.
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Apart from the photocopy of the photoshoots, there is no cogent and convincing evidence on record to prove that the question paper was leaked out prior to the examination time. No details of the mobile phone or its owner has been detailed in the O.A. and even so, if the paper did leak out before the examination time, no explanation is forthcoming why the matter was not reported to the official respondents or the police, as such, we are not inclined to accept the contention of applicants that the examination paper had been leaked out before the examination time.
Even, otherwise, WhatsApp message is required to be brought on record in accordance with law for its admissibility and reliability. Recently, the Hon'ble High Court of Punjab & Haryana vide order dated 14.01.2021 in CRM-M No. 23220 of 2020 (O&M) titled Rakesh Kumar Singla v/s Union of India (Source: Indiakanoon.org) while observing the WhatsApp message have no evidentiary value held that:
"Learned counsel for the NCB has also placed reliance on Whatsapp messages by which the petitioner could be implicated. However, on the asking of this Court, whether a certificate under Section 65B of the Indian Evidence Act is available at the present moment to authenticate the said messages, the answer is in negative. The recent judgment rendered by the Supreme Court in the matter of Arjun
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PanditraoKhotkar Vs. Kailash KushanraoGorantyal and others (2020) 7 SCC 1 has held that a certificate Section 65B of the Indian Evidence Act is required when reliance is being placed upon electronic record. Therefore, the said message would be of no evidentiary value as on date."
In the present case, in view of the settled law, the copies of the WhatsApp relied upon by the applicants without the necessary certification have no evidentiary value and cannot be relied upon in support of the plea of the applicants that the examination papers were leaked beforehand. This contention of applicants regarding leaking of examination paper through WhatsApp has no leg to stand upon and must fail.
GROUND - 2
81 out of 338 candidates were figuring in the select list of Fireman under OM category from district Budgam where the question paper is alleged to have been leaked on WhatsApp. The cut off marks and highest 96 marks for post of Fireman was highest and better in district Budgam than other districts. Out of 338 candidates, 81 are from Budgam district in comparison to 56 candidates from entire Jammu division.
Reply: Regarding the allegation of District Budgam being the centre of corrupt practice since 81 candidates are from Budgam and 56 candidates
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under OM category are from entire Jammu division, respondents have given the details of the candidates from each district, number of appointments per district and the number of persons appeared from each district and same reveals that Budgam was having the highest number of candidates i.e. 893 out of whom 125 candidates were selected and which percentage is lower than other district.
It was argued by learned counsel for applicant that the examination paper was leaked out is apparent from the fact that the highest marks of 96 marks for post of Fireman was highest in district Budgam and out of 338 candidates, 81 are from Budgam district in comparison to 56 candidates from entire Jammu division.
In this regard, learned AAG referred to the chart given in the objection which reflects district wise candidates appeared and selected and argued that the data reveals that Budgam was having the highest number of candidates i.e. 893 out of whom 125 candidates were selected but which percentage is lower than other district and that 231 candidates were selected from Jammu division and not 56 as alleged by the applicants. The table is reflected below:
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Name of Appeared Selected %Age Districts
Jammu Province
Doda 169 35 20.71
Jammu 329 82 24.92
Kathua 68 7 10.29
Kishtwar 91 10 10.99
Reasi 44 3 6.82
Samba 37 10 27.03
Udhampur 42 7 16.67
Poonch 191 23 12.04
Rajouri 380 40 10.53
Ramban 162 14 8.64
Total 1513 231 15.27
Kashmir Province
Anantnag 630 36 5.71
Bandipora 487 52 10.08 Baramulla 651 30 4.61 Budgam 893 125 14.00
Ganderbal 484 37 7.04 Kulgam 305 15 4.92
Kupwara 621 18 2.90
Pulwama 515 69 13.40
Shopian 194 37 19.07
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Srinagar 263 32 12.17 Total 5043 451 8.94 Ladakh Province Kargil 37 6 16.22 Total 37 6 16.22 We have gone through the material on record. The Statistics given by the respondents have not been rebutted by the applicants and do not give credence to the allegations of the applicants in this regard. Budgam district was having largest number of candidates appearing in the selection process and 125 candidates were selected from said district and the cut off marks and highest 96 marks for post of Fireman was highest in district Budgam cannot be grounds to hold that the selection process was riddled with corrupt practice.
Looking to the facts placed before us, it is apparent that the applicants tried to paint a wrong picture by placing wrong figures/facts before this Tribunal which is to be deprecated. Allegation that highest mark was achieved by a candidate from Budgam district is an indicator to the leak of examination paper is too far-fetched to merit acceptance.
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GROUND - 3 The illegality in the select list can be seen that four real brothers i.e respondents No. 26, 139, 176 and 339 have been selected and in order to mislead, the parentage of the aforementioned candidates i.e. the name of their father has been deliberately reflected in different terminology in the impugned selection. The question paper was leaked is apparent from the fact that respondents No. 57 and 59 are real brother and obtained equal marks i.e.
93.
Reply: The notification does not debar any true blood relations to apply and compete in the examination. All these candidates had appeared at different examination centres independently and secured their merit independently. It was submitted by learned counsel for applicant that four real brothers i.e respondents No. 26, 139, 176 and 339 have been selected and in order to mislead, the parentage of the aforementioned candidates i.e. the name of their father has been deliberately reflected in different terminology in the impugned selection. In addition, the question paper was leaked is apparent from the fact that respondents No. 57 and 59 are real brother and obtained
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equal marks i.e. 93. Candidates at Sr. No. 131 and 157 are real brothers from Pulwama and got equal marks. Persons at S. No. 52 and 64 of the select list under OM category are real brother from Pulwama and got same marks. Learned AAG countered this claim by arguing that there exists no law to debar any true blood relations to apply and compete in the same examination and in any case, all these candidates had appeared at different examination centres independently and secured their merit independently. That candidates at Sr. No. 131 and 157 are real brothers and appeared at different centres and persons at S. No. 52 and 64 are also real brothers from Pulwama getting equal marks cannot be a ground to hold that the selection list is outcome of corrupt practice.
Looking to the facts of the case and the reply of the official respondents, we are of the opinion that there is no merit in the claim of the applicants. The unrebutted case of respondents is that the four brothers appeared at different examination centres and candidates i.e. respondents No. 57 and 59 are real brothers and had obtained equal marks. In any case, we have already held that applicants have been unable to show that the question paper was leaked
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before the written examination was held. The real brothers getting equal marks cannot be held to be a ground to hold that the selection process is tainted.
GROUND - 4
Despite Candidate at S. No. 238 being underage and candidate at S. No. 176 (Sayed Ahmad Thokar) being overage have been selected. Under age candidate like respondent no. 243 and overage candidate like respondent No. 181 have been selected reveals the illegality of the select list. Reply: Regarding the allegation of underage and overage candidates as being appointed, it is averred that candidate at S. No. 238 was found ineligible, whereas candidate S. No. 176 (Sayar Ahmad Thokar), due to wrong date format, his date of birth was assigned a default date value and as per documents, he is eligible age-wise in terms of the notification. It is argued by learned counsel for the applicants that despite candidate at S. No. 238 being underage and candidate at S. No. 176 (Sayed Ahmad Thokar) being overage, they have been selected which also cast strong doubt on the correctness of the appointment order. Learned AAG candidly accepted that
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candidate No. 238 was found ineligible and accordingly corrective action has been taken by the department whereas Sayar Ahmad Thokar is eligible age-wise for the reasons mentioned in the counter affidavit. Looking to the stand of the respondents, we find no force in the arguments of applicants regarding the overage/underage allegation which is therefore, rejected.
GROUND - 5
The question papers for Fireman and Fireman Driver were the same but cut- off marks for the post of Fireman under OM category was 88 whereas cut- off mark for Fireman Driver was under 31 under OM category, a difference of 55 marks between the last selected candidate in the said posts raising doubts on the selection procedure.
Reply: In reply to para 4.15 of the O.A, it has been averred that the total post of Fireman Driver were 148 out of 453 candidates were called in the ratio of 1:3 for driving test out of which 31 candidates qualified the driving test and so the Board decided to call all the remaining 774 candidates to have their driving license verified and 145 candidates who qualified the driving test
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became eligible for written examination. The reason for a lower cut off merit for the post of Fireman Driver is that the drivers who were holding valid driving license were not qualified as that of Fireman candidates and as such did not score as many marks in the written examination as that of Fireman candidates who were as on date of examination were higher qualified than drivers. Since the post of Fireman driver was separately notified and the candidates were to fill in separate application for the post and those candidates holding valid HGV driving license on or before 18.04.2013 were only eligible as such 145 candidates became eligible after qualifying driving test for re-examination. Out of which 144 candidates participated in the re- examination. Since post being separate, the merit and cut off marks has to be computed separately, as such, merit of drivers have less cut off than that of Fireman. Against 148 posts only 145 found eligible but on the contrary for the post of Fireman, 6858 were found eligible and out of which 6488 appeared for re-examination for 592 posts i.e. for the post of driver for every
1.02 post one candidate was available and for post of Fireman for every one post, 11.58 candidates were available. As such the cut off merit varies as number of candidates for each post is different.
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Referring to the contention of applicants regarding a difference of 55 marks between the last selected candidate in Fireman and Fireman Driver category raising doubts on the selection procedure, learned AAG has contended and rightly so, that the reason for a lower cut off merit for the post of Fireman Driver is that the drivers who were holding valid driving license were not qualified as the Fireman candidates, as such, unlike the Fireman candidates who were highly qualified, the Fireman Drivers did not score high marks. The posts being separate, the merit and cut off marks have to be computed separately, as such, merit of drivers have less cut off than that of Fireman. Since for the post of driver for every 1.02 post, one candidate was available and for post of Fireman for every one post, 11.58 candidates were available, as such, the cut off merit varies as number of candidates for each post is different.
GROUND - 6
It is the contention of the learned counsels for applicants that the select list was released on 3.10.2020 at around 8 P.M. and not published in the newspaper and order No. 823 dated 4.10.2020 was issued on Sunday whereas normally in all departments, 21 days' time is granted for selected candidates to join after verification of their documents. The impugned order also directed the appointees to join and documents would be verified
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afterwards and for the first time provides a specific date for joining whereas PSC/SSRB gives minimum 21 days period for joining and hurry shown to direct the appointees who do not have the documents to come on 8.10.2020 or 09.10.2020.
It was further submitted by learned counsel for applicants once the selection process took 7 years to complete, there was no necessity to complete the process of issuance of select list, followed by order of appointment on Sunday (04.10.2020) and joining within 72 hours on 5thand 6thof October, 2020 which has never been done before and this was done so, as to deprive the aggrieved candidates to seek judicial remedy. All these factors reveal that the respondents were in a hurry to cover up their tracks and corruption actions in the selection procedure and are yet further grounds to set aside the appointment orders.
On the other hand, learned AAG submitted that there is no rule which prohibits the respondent-department from adopting the procedure referred to by the applicants. In fact, looking to the delay in the selection process, the need was felt by the department to bring about the closure of the selection
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process at the earliest and not to block the applicants from approaching the judicial forum for the redressal of their grievance.
No rule has been brought to our notice which prohibits the respondent department from adopting the procedure as has been done by the department. The procedure also does not stop the applicants from seeking judicial redressal as is apparent that they have filed the present petitions wherein the interim order has been passed making the selection subject to the outcome of the O.A. Learned counsel for applicants has been unable to point out any rule violated in this regard, as such, this argument is least impressive and having no force of law is to be rejected. GROUND - 7
Official respondents changed the criteria by removing the marks for higher qualifications and making the selection by conducting the written test only as to cause a disadvantage to the candidates having higher qualifications and enable the persons who can use illegal methods to gain higher marks. The criteria was changed to ensure that candidates like the applicants who possess higher qualifications do not get additional marks so as to be selected
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since majority of the appointed candidates are either 8thpass or 10thpass only.
Reply: On the question of low educational qualification of the selected candidates and the criteria was changed to favour their candidature, the testimonials of the selected candidates reveals that 45 % of the candidates are graduates or above possessing PGs and some candidates being M. Phil. More than 50 % of the candidates are under graduates and only 3 candidates in the entire selection list have 8thpass qualification. Learned counsel for applicants submitted that by removing the marks for higher qualifications and making the selection on the basis of written test, was a ploy to cause a disadvantage to the candidates having higher qualifications, since the removal of marks for higher qualification would be advantageous to the majority of the appointed candidates who are either 8th pass or 10thpass only.
So, what the applicants have challenged the change in the criteria, in the limited sense that criteria were changed to make it disadvantageous to the
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applicants to be selected or in the words of the applicants in the paragraph No. 5.7 that:
". . . . the respondents deliberately changed the criteria for making selection by conducting only written test, so as to give an open window to all those who were having resources and means to achieve ulterior motives through illegal channels. So, the question arises whether the change in the criteria or the methodology of selection was prejudicial to the applicants and placed them in a disadvantageous position in their selection.
The reply and figures given by the respondents in their counter affidavit is enough to displace the theory of deliberate change in the criteria set up by the applicants and making allegation of wrongdoings on part of official respondents to help the selected candidates for ulterior motive or it prejudiced the applicants having higher qualification resulting in their non- selection. The specific stand of the respondents is that the testimonials of the selected candidates reveals that 45 % of the candidates are graduates or above possessing PGs and some candidates being M. Phil. More than 50 % of the candidates are under graduates and only 3 candidates in the entire selection list have 8thpass qualification. This, unrebutted reply, by itself is clear enough to demolish the argument raised by the applicants. This, apart,
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while making allegations that the applicants being more intelligent than private respondents due to higher qualification, the applicants have not cared to get copies of their examination paper from the department and place them on record to show the nature of questions and their performance in answering them. In any case, the question paper was common to all the candidates and was of the standard of 8thpass class.
The table below gives a clear picture:
| S. No. |
Educational qualification |
No. of candidates out of selected candidates |
%age |
| 1. |
8th |
03 |
0.51 |
| 2. |
10th |
99 |
17.09 |
| 3 |
12th |
213 |
36.78 |
| 4 |
Graduates |
168 |
29.01 |
| 5 |
Post Graduates |
93 |
16.06 |
| 6 |
M. Phil or above |
03 |
0.51 |
We also note the judgment in Adarsh Kumar Shama v/s State, (2012) 4 JKJ
711 wherein the Hon'ble High Court has held that:
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"Once the Selection Committee or Board, decides to change the eligibility criteria in the middle of the selection process, the candidate who would have otherwise decided to compete for the advertised post, but did not respond as he felt that he did not satisfy the eligibility criteria, would be deprived of an opportunity to participate in the selection process. The decision of the Selection Committee or the Board would, therefore, offend Articles 14 and 16 of the Constitution of India. However, the same is not true about the methodology to be followed by the Selection Committee or the Board for making the selection.
7. The aspirant for the advertised posts, in case, the methodology for selection has been changed or modified, would be required to further show that he has been prejudiced by the change or modification and put to disadvantage as against the other candidates in the fray. The reason for said legal proposition again is not difficult to understand. The change in methodology does not necessitate change in the eligibility criteria. The Selection Committee or the Board by making change in methodology of selection does not propose to put any candidate (s) to any disadvantage and it instead provides level play field to all the candidates. In the circumstances, a candidate aggrieved with change of methodology, would be required to show and establish that such change has exposed him to any disadvantage.
8. In the present case, the respondents decided to dispense with the preliminary test, earlier proposed to be conducted and instead decided to go straight to the "Main Written Examination". All the candidates, who passed the Endurance/outdoor test and satisfied the physical measurement including the petitioners, were allowed to sit in the "Main Written Examination" without going through any screening test at the preliminary stage.
9. It is pertinent to point out that the Selection Committee or the Board instead in view of the huge response to the Advertisement Notice, may decide to hold preliminary test so that the only meritorious candidate in a reasonable ratio are called for the "Main Written Examination". Such recourse is permissible as the "Main Written Examination" involves huge
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administrative costs and there is no point in allowing all the candidates irrespective of number of advertised vacancies to appear in the "Main Written Examination". However, a reasonable ratio is to be maintained between the number of vacancies and number of candidates called for the 'Main Written Examination". The base line is that methodology adopted must help the Selection Committee or the Board to pick up the most meritorious candidates from the market place."
And the observation of the Hon'ble Apex Court in Ashok Kumar Yadav and others vs. State of Haryana and others, 1985(4) SCC 417 that:
"This Court speaking through Chinnappa Reddy, J. pointed out in Liladhar v. State of Rajasthan [1982] 1 S.C.R. 329 that the object of any process of selection for entry into public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So open competitive examination has come to be accepted almost universally as the gateway to public services. But the question is how should the competitive examination be deviled? The competitive examination may be based exclusively on written examination or it may be based exclusively on oral interview or it may be a mixture of both. It is entirely for the Government to decide what kind of competitive examination would be appropriate in a given case."
In the present case, looking to the facts and the settled law, it would not be within the competence of the Tribunal to see which method is best suited to choose the best talent from the open market and it would be for the Government to see what methodology is best suited to select the persons in matter of public appointment. Even, otherwise, in the present case, the
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methodology had been changed admittedly at the stage of initiation of the selection process and before the written examination was held and applied uniformly all the candidates.
GROUND - 8
The illegality of the selection process is apparent from the fact that District Budgam has been favoured which is apparent from the fact that the WhatsApp originated in said district revealing the question papers and 30 % of 338 candidate selected in OM are from same district where every candidate has more than 85 % marks and figured in the select list. During the course of arguments, learned counsel has been unable to show how the figure was arrived at and even so, as noted above, amongst all districts, the largest number of candidates appeared in district Budgam. The argument having no force is to be rejected.
GROUND - 9
Lastly, it was argued by learned counsel for applicants that once the criteria were laid down by the Selecting authorities in the advertisement of 2013, as noted above in paragraph No. 2 , the same was required to be followed strictly while making the selection and it is impermissible under law to
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change the criteria midway without notice to the public and even so, the applicants were not aware of the changed criteria which came to their knowledge after the selection list/appointment order was issued and therefore, they have approached the judicial forum without delay and placed reliance upon Ramjit Singh Kardam Vs. Sanjeev Kumar, AIR 2020 SC 2060. The applicants, therefore seek quashing of the appointment order issued on the basis of the changed criteria whereby the selection was made on the basis of 100 marks question paper, which action of the official- respondents is contrary to law and the written examination be reconducted. On the other hand, it is submitted by learned AAG that the applicants have participated in selection without any demur or protest and are challenging the selection criteria which was declared before the selection process started and was in the knowledge of the applicants and that the selection criteria was applied uniformly to the candidate, hence, they are not entitled to challenge the selection after having been declared unsuccessful. In the catena of judgments, the Hon'ble Apex Court has laid down that once a person appeared in the examination as per the terms and conditions without any protest and was not found successful, question of entertaining a
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petition challenging the such examination would not arise. We may refer to Manish Kumar Shahi v. State of Bihar, 2010 (12) SCC 576, wherein the Hon'ble Apex Court held that:
"Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."
Reiterating the earlier view that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome, the Hon'ble Apex Court in Pradeep Kumar Rai
v. Dinesh Kumar Pandey, (2015) 11 SCC 493, observed that:
"Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. Thus, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure
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or they should have challenged immediately after the interviews were conducted."
The question arising is whether the applicants took part in the written examination knowing the change in criteria or not. In case, the change in criteria was without notice and in secrecy and the applicants were not aware of the change in criteria, the action of the official respondents would be open to a successful challenge.
However, it would be otherwise, if the applicants despite knowing the change in criteria participated in the selection process and were unsuccessful, in such a condition, question of entertaining a petition challenging the such examination would not arise. (Read with advantage Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC 285) Before proceeding further, it would be necessary to note the history of the present case:
1) Advertisement notice No. 01 of 2013 dated 12.03.2013 was issued for posts of Fireman/ Fireman Driver for which the eligibility criteria was issued vide notice dated 19.10.2013. The Government vide notification dated 05.07.2016 terminated the
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recruitment process after the written test was conducted and interview were yet to be held.
2) Vide communication dated 06.08.2016, the Home Department which is the Administrative Department of F&ES informed the Director General, F&ES that Recruitment process consisting of
(i) Physical Standard Tests, (ii) Physical Endurance Test, (iii) Written test through TRP and Written examination for the posts of Fireman/Fireman Driver will be of 100 marks (multiple choice/objective type) without any Personality-cum-Technical / Trade test. The written examination will be of 8thPass standard.
3) The aforementioned Government notification dated 05.07.2016 terminating the recruitment process was challenged in the Hon'ble High Court where the Government took the plea that selection could not carried forward as certain discrepancies relating to selection process were reported. Hon'ble High Court vide order dated 02.11.2017 set the order of terminating the notice of 2013 and left it open to the Government to conduct the process of selection from the first phase afresh.
4) Accordingly, the Government issued Gist of e-NIT No. 01 of 2018 dated 05.04.2018 published tender notice to oversee the recruitment process giving wide publicity in major newspaper and electronic media. The e-NIT provided (1) The question paper for the post of Fireman/ Fireman Driver shall be of 100 marks and would be (multiple choice/objective type) of two hours duration based on OMR sheets; (2) Educational
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qualification would be Certificate of having passed 8thclass or a 3rdclass certificate of Indian Army.
5) In the fresh recruitment process, after conducting the physical standard test/physical endurance test, notification dated 07.12.2018 informed that written test shall be conducted on 16.12.2018 and 17.12.2018 and would of 100 questions carrying 100 marks on the OMR sheet. The ensuing written examination was challenged in the High Court in SWP titled Muzaffar Ahmad Rather v/s State of J&K alleging mass copying and other illegalities. As per directions dated 29.03.2019 of the Hon'ble High Court, vide order dated 01.08.2019, the representation filed by the petitioners was accepted, above written examination was cancelled and fresh written examination ordered. Vide communication dated 13.11.2019, examination was to be held on 15.12.2019 which vide order dated 08.09.2020 was postponed to 20.09.2020 when it was held and the sanction was accorded for appointment of private respondents vide impugned order no. 823 of 2020 dated
04.10.2020.
If we look to the facts of the case and the material on record, it comes out that
(A) The criteria was laid down in the advertisement notice of 2013 as noted in above paragraph No. 2;
(B) vide communication dated 06.08.2016, it was held that the Recruitment process consisting of (i) Physical Standard
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Tests, (ii) Physical Endurance Test, (iii) Written test of 8th pass standard for the posts of Fireman/Fireman Driver will be of 100 marks without any Personality-cum-Technical;
(C) e-NIT No. 01 of 2018 dated 05.04.2018 provided that the question paper for the post of Fireman/ Fireman Driver shall be of 100 marks based on OMR sheets;
(D) notification dated 07.12.2018, the written exam was held but set aside;
(E) Written examination held on 20.09.2020;
(F) The writ in the Hon'ble High Court and the newspaper cutting shows that the publication of 'Notification for Written Test' in various newspapers in the year 2018, 2019 and 2020 informing the candidates that the written test will be objective/OMR type having 100 questions carrying 100 marks for each post, as per the syllabus already published. Undoubtedly, the criteria of 100 points, whose breakup is Written Test: 65 points, 10thclass 5 points, 10 + 2 (Hr. Sec.) 5 points, Graduation 5 points and viva voce 20 points was laid down in the year 2013. The record shows that new criteria of PET and 100 marks examination paper was laid down by virtue of notification dated 06.08.2016. This new criterion finds mention in the Gist of e-NIT No. 01 of 2018 dated 05.04.2018 which was directed to be given wide publicity in Radio, T.V. and local/national
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newspapers and was in the knowledge of the candidates. The criteria stood changed is apparent from the notifications for written test advertised in the year 2018, 2019 and 2020 which was in the knowledge of the applicants and was enough to put them on guard that the criteria has been changed and the selection would be entirely on the basis of the 100 marks objective/OMR type paper.
So, indubitably the fact remains that the advertisement notice specified the written paper of 100 marks. The change in criteria of doing away with the interview and holding of 100 marks written test was introduced by the official-respondents much prior to the commencement of the written examination and not subsequently. The applicants acquiesced in the changed criteria by taking part in the written exam of 100 marks and therefore, as held in Om Prakash Shukla (supra) that when the applicant appeared at the examination without protest and when he found that he has not succeed in examination, he filed a petition challenging the said examination, the Hon'ble High Court should not have granted any relief to such an applicant. The ratio of the decision of the Hon'ble Apex Court in the case of K. Manjusree Vs. State of Andhara Pradesh, (2008)1SCC(L&S)841is not attracted in the instant case. The mandatory requirement specified therein is
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that Rule of game cannot be changed afterwards and the change in criteria has to be prescribed in advance. This condition was followed by the official- respondents.
Learned counsel for applicants relied upon Ramjit Singh Kardam Vs. Sanjeev Kumar, AIR 2020 SC 2060 in support of his contention that it is impermissible under law to change the criteria midway without notice. No doubt, the Hon'ble Apex Court in case of Ramjit Singh Kardam (supra) held that merely because the unsuccessful candidates had participated in the process of selection after the change of criteria, their right to challenge the arbitrary change cannot be lost, but this was due to the fact that candidate therein was not aware of the criteria of selection which he was subjected in the process and the criteria for the first time was published along with the final result. The selection was set aside by the Hon'ble Apex Court on the ground that "We having held that change in criteria of selection was never notified by the Commission and about the change in process of selection candidates were kept in total dark and for the first time the criteria applied in selection process was published along with result dated 10.04.2008, the writ petitioners cannot be estopped in challenging the arbitrary criteria so applied."
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The facts of the case Ramjit Singh Kardam (supra) are distinguishable from the facts of the present case and thereafter not applicable to the instant case. Unlike the Ramjit case (supra), in the present case, the criteria was changed before the proceedings in the selection process were started and even so, the changed criteria was in the knowledge of the applicants and they participated in the selection process under the changed criteria without protest or challenging it. The criteria was across the board applicable to all the candidates and their merit was dependant on the marks obtained by them. We also note that as per the official-respondents the testimonials of the selected candidates reveals that 45 % of the candidates are graduates or above possessing PGs and some candidates being M. Phil. More than 50 % of the candidates are under graduates and only 3 candidates in the entire selection list have 8thpass qualification, as such, it cannot be said that the private respondents, who were given the same treatment as was meted out to the applicants, were given any advantage over the applicants or helped to steal march over the applicants by dispensing with the interview. The applicants did not question the change of criteria in an appropriate proceeding. They instead participated in the selection process, appeared in
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the Written Examination and approached the Tribunal only when they were unsuccessful in appearing in the merit list.
It be noted that Selection norms/ criteria was reviewed by J&K Home Department which is the Administrative Department of F&ES and vide order no. HOME/F&ES/Misc/2015 dated 06.08.2016 (Annexure R1 to the counter affidavit/objections) laid the criteria:
a) Recruitment process consisting of (i) Physical Standard Tests,
(ii) Physical Endurance Test, (iii) Written test through TRP.
b) Written examination for the posts of Fireman/Fireman Driver will be of 100 marks (multiple choice/objective type) without any Personality-cum-Technical / Trade test. The written examination will be of 8thPass standard.
This order was passed in 2016 and at no stage till the issuance of appointment order, the criteria of 2016 has been challenged by the applicants but accepting it, applicants participated in the selection procedure and are estopped from challenging the criteria. Not to speak of written test of 2020 which comprised of 100 marks, these applicants had appeared in PST/PET and subsequently appeared in the written test in 2018 which was strictly based on the revised criteria notified in the year 2016, applicants having participated in the selection process cannot challenge the said process.
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In the present OA, there is nothing on record to show that there was any other deficiency or flaw in the examination process. Looking to the reasoning adopted by the applicants, even assuming some of the flaws to be correct, it cannot be said irregularities were all pervasive and beyond correction. We may refer to the observations of the Hon'ble High Court in Amar Nath Singh v/s Union Of India, (1997) AllWC894 : (1998) 3 UPLBEC 1885 that:
"I am conscious of the fact that a selection process is not sacrosanct. It can be cancelled, scrapped or annulled if there is concrete and reliable evidence of large scale bungling, malpractice, corruption, favoritism and nepotism of the like of if there is a violation of fundamental procedural requirements. It is true that fabrication would obviously either be not known or no one could come forward to bear the burnt. Nevertheless, there should be wealth of material to take the extreme and drastic step of scrapping the whole recruitment process, particularly when it has reached the final stage. The cancellation or scrapping of the recruitment has very serious repercussions and impact not only on the candidates who have undergone the rigorous of the test but on the general public and the Department itself. It also casts aspersions on the members of the Recruitment Committee."
At the same time, the cancellation of the selection process cannot be made arbitrarily and has to be based on cogent reasons as held by the Supreme Court in East Coast Railway and Another Vs. Mahadev Appa Rao and Others, AIR 2010 SC 2794. In that case, it was found by the Hon'ble
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Supreme Court that the order of cancellation passed by the competent authority was not preceded even by a prima facie satisfaction about the correctness of the allegations which were made by unsuccessful candidates. In this context, the Supreme Court held that if a test is cancelled just because some complaints, howsoever frivolous, have been received, it may lead to a situation where no selection process can be finalized as those who failed to qualify, can always make a grievance against the test or its fairness. Thus, for the reasons which we have indicated above, we are unable to allow the application and set aside the selection/appointment letter. In view of the facts of the case and the settled law, we are of the opinion there is no merit in the O.A. Accordingly, O.A. is dismissed. No costs.
(ANAND MATHUR) (RAKESH SAGAR JAIN)
MEMBER (A) MEMBER (J)
Arun/-
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