ANIL KUMAR UPADHYAY, J. -
(1.) Heard learned counsel for the petitioners and the respondents.
1. All the three writ applications have been filed by the petitioners challenging the decision dated 27.7.2016 of the Bihar Staff Selection Commission (hereinafter referred to as 'the Commission'), whereby the Commission had decided to return back the left out vacancies of Auditor for sending fresh requisition.
(2.) In the year 2007 vide advertisement No. 2403, the Commission invited application for appointment on 570 posts of Auditor. The petitioners in all the three writ applications applied for the post. Their objective type examination was held on 7.10.2012. They were asked to keep carbon copy of the OMR sheets after the examination was over in terms of the instruction in the objective type examination while blackening the OMR sheets.
(3.) On 20.10.2012 a case was registered by the Economic Offence Unit vide Economic Offence Unit P.S. Case No. 23 of 2012 on the allegation that the lock of the strong room of the Commission in which OMR sheets were kept, was broken and OMR sheet was tampered and manipulated to extend favour to certain candidates. While the case was pending, the Commission published result of 400 candidates on 22.02.2013. The result of 10 candidates were kept in sealed cover subject to outcome of the Economic Offence Unit P.S. Case No. 23 of 2012. Aggrieved by the result of the aforesaid examination conducted by the Commission certain unsuccessful candidates filed CWJC No. 5771 of 2013 and analogous cases. On 9.4.2013 28 successful candidates intervened in the pending CWJC No. 5771 of 2013. A single Judge of this Court granted time to the respondents to file counter affidavit to apprise the Court about the present position of the criminal case i.e. Economic Offence P.S. Case No. 23 of 2012. The Court on the undertaking of the counsel for the Commission that they will not recommend the names of the candidates for the post of Auditor till final decision of the writ application, declined to pass any interim order. On 28.4.2014 the matter was again heard and the court asked the counsel for the Economic Offence Unit to produce the materials to show that there was actual tampering with the result and outcome of the examination. The Court in most unambiguous term reminded the Economic Offence Department that suspicion can never partake the place of proof as they stand today. The Court also allowed intervention applications filed by certain successful candidates. On 8/9.5.2014 notice was published in the newspaper whereby successful candidates were asked to present themselves before the office of the Commission on 2nd and 3rd June, 2014 along with carbon copy of the OMR sheets, attested copy of the Admit Cards, etc. Similar information was also uploaded on the website of the Commission. The Commission also requested the Economic Offence Unit to associate with the Commission in the process of verification and a Senior Deputy Superintendent of Police, IO of Economic Offence Unit participated in the verification process. After investigation it was found that (a) out of 400 candidates only 355 candidates appeared in the office of the Commission for verification, (b) out of 355, 31 candidates did not produce their carbon copy of the OMR sheets for verification, (c) out of 324 candidates minor discrepancies were found with respect to 43 candidates whereas major discrepancies were found with respect to 15 candidates. On verification the Commission and the Economic Offence Wing found the OMR sheets of 266 candidates unblemished and thereafter certain correspondences were made in connection with the suspicious candidates. In the backdrop of the aforesaid facts and circumstances, CWJC No. 5771 of 2013 and analogous cases were finally decided by oral judgment dated 19.2.2015. the relevant part of the discussions in CWJC No. 5771 of 2013 is quoted below for ready reference.
'From the above authoritative pronouncements, the preponderance of precedent is inescapable that the resort to cancellation of the entire selection process can be taken only when the impossibility to weed out the tainted from non-tainted is clearly established, and in all such cases the effort must be made not to put the non-tainted candidates at peril for the alleged misdeed of some candidates. As already taken into notice the materials brought on record by the petitioners, at the most, only demonstrate that the interpolations were attempted by the miscreants at the behest of only such candidates who paid them hefty sum. As earlier mentioned, this Court approved the proposed verification exercise of the original OMR sheets answer sheets by comparing the same with the carbon copies to be produced by the candidates, to be done jointly by the respondent-Commission and Economic Offence Unit. The result of such verification exercise, reported by the Commission and the Economic Offence Unite in their separate supplementary counter affidavits, also rules out the possibility of involvement of majority of the candidates in the alleged act of interpolations in the OMR answer sheets. To be specific, the Economic Offence Unit has found prima facie interpolations in the OMR answer sheets of only 19 candidates whereas the Commission has found cases of 15 candidates to have major discrepancies in their OMR sheets. In this fact situation, this Court is not inclined to align with the submissions on behalf of the writ petitioners that the alleged misdeeds were all pervasive in nature and have vitiated the entire examination as well the result published on that basis. The prayer of the writ petitioners, therefore, for cancellation of the examination and the result published on that basis is held to be not sustainable.
The next submission on behalf of the petitioners is that the answers with regard to some of the objective type questions as exposited from the model answer option provided by the Commission were not correct. It is the case of the petitioners that they submitted their objections and suggestions in that regard but the commission did not respond. The Commission in its counter affidavit, however, has stated that after receiving the objections, the Commission got the matter verified by the subject experts and the decision was taken to change the model answers in accordance with the advice by the experts. The details in this regard have been mentioned in the counter affidavit question-wise. This stand of the Commission has not been controverted by the petitioners. The Apex Court has adverted to this issue in the case of H.P. Public Service Commission Vs. Mukesh Thakur [2010 (3) PLJR SC 127] and their Lordships have observed that 'if there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination.' it is not the case of the petitioners that any discrimination in this regard has been made while evaluating the answer sheets. In this view of the matter, this Court does not find substance in the submission on behalf of the petitioners that the written test and the result published on that basis are fit to be cancelled. Similarly, the challenge to the result by including the 10 candidates with star marks showing that their results have been kept in sealed cover and would be subject to the outcome of the Economic Offence Wing P.S. Case No. 23 of 2012, is equally devoid of merit. It is accepted position that the investigation is going on in the matter and if those candidates have secured the required marks, the Commission has committed no wrong in publishing their results making the same, at the same time, subject to the outcome of the investigation.
At this juncture, the stand of the Commission as disclosed from paragraph-12 of the supplementary counter affidavit dated 27th June 2014 is required to be considered. The Commission has found that the OMR answer sheets of altogether 266 candidates, out of 400 successful candidates, are unblemished, and with regard to 43 candidates, minor discrepancies have been found in their OMR answer sheets whereas 15 candidates have been found to have major discrepancies in their OMR answer sheets. The Commission has proposed to make recommendations for appointment of the names of 266 candidates with no discrepancy and 43 candidates with minor discrepancies in their OMR answer sheets. However, it is required to be noticed here that the majority of the 43 candidates with regard to whom the Commission has found minor discrepancies has been included in the list of 19 candidates whose OMR answer sheets have been identified as suspicious by the Economic Offence Wing in its supplementary counter affidavit dated 01.07.2014.
It is apparent that the matter relates to appointment to the posts of Auditors for which the advertisement was published in the year 2007 itself and much delay has already occurred. In the background of the facts, as mentioned above, applying the Wednesbury principle of unreasonableness, the proposal by the Commission to recommend the names of 266 candidates with unblemished OMR answer sheets for appointment, does not appear to be reprehensible. Even adopting the proportionality as a legal test also, it appears that the Commission has struck a correct balance between individual rights and public interest in the present fact situation. Therefore, this Court finds no impediment in accepting the proposal by the Commission to recommend the names of 266 candidates whose OMR answer sheets have been found unblemished as mentioned in the supplementary counter affidavit of the Commission, for appointment to the posts of Auditor against Advertisement No. 2407. Their appointments, however, would be subject to the final outcome of the Economic Offence Wing P.S. Case No. 23 of 2012. The Commission is directed to proceed accordingly, as prayed with regard to these 266 candidates.
The cases of remaining candidates including the 31 candidates, who have failed to produce the carbon copies of their OMR answer sheets, in spite of specific direction of the Commission in that regard, to retain the same, as disclosed from the notice dated 05.10.2012 (Annexure-G to the second supplementary counter affidavit of the Commission), cannot at this stage be placed in the same category with certitude, as the trace of blemish in these cases, cannot be ruled out altogether. The Commission is therefore, directed to take appropriate decision in these cases after the completion of investigation in Economic Offence Wing P.S. Case No. 23 of 2012 in accordance with law. The respondent-Economic Offence Unit is directed to expedite the investigation and complete the same without further delay.
These four writ applications are accordingly dismissed with aforesaid directions.' ;