- (1.) ASHOK Bhushan, J. Heard Sri K. Ajeet, learned Counsel for the petitioners and Dr. Sri Y. K. Srivastava, learned standing Counsel.
(2.) BY this writ petition the petitioners have prayed for quashing the result dated 5-10-2001 with respect to written test of Lekhpal. Prayer for quashing the order dated 28-10-2005 passed by the District Magistrate, Kanpur Dehat cancelling the candidature of the petitioners has also been permitted to be added by order dated 22-2-2006. A writ of mandamus has also been sought commanding the respondents No. 1 and 2 to issue appointment orders to the petitioners for the post of Lekhpal. Brief facts necessary for deciding the writ petition are; An examination for Lekhpal training was conducted by the Board of Revenue, U. P. Lucknow on 5-11- 2000. The said test contained objective questions of four subjects. The evaluation of the answer sheets was entrusted by the Board of Revenue to an outside agency namely, I. V. P. S. Mumbai. After evaluation of answer sheets the result was forwarded which was published in news paper on 5-10-2001. The petitioners' result were noted to have been cancelled due to use of unfair means in the examination. The writ petition was filed in this Court on 11-10-2001 challenging the said cancellation of result. This Court passed an interim order on 6-12-2001 staying the order cancelling the result. It was however, left open to the respondents to pass fresh order after giving opportunity to the petitioners. The petitioners were permitted to be called for interview provisionally but the result was directed not to be declared. A show cause notice was issued by the District Magistrate, Kanpur Dehat on 18-2-2005 to both the petitioners asking the petitioners to show cause as to why their candidature be not cancelled. Petitioners submitted a reply to the show cause notice vide letter dated 21-10-2005. The District Magistrate passed an order on 28-10-2005 cancelling the candidature of the petitioners as well as the result on the ground of using unfair means in the examination, Petitioners' case in the writ petition is that when the result was declared on 5-10-2001 no opportunity was given before cancelling the result of the petitioners. The petitioners have not adopted any unfair means in the examination. The petitioners were not seated next to each other rather there was one more examinee in between them. Petitioners' result has been cancelled only on suspicion. A counter-affidavit has been filed by the respondents' in which respondents brought on record a copy of the guide lines prepared by the out side agency who was entrusted evaluation of the answer sheets for finding out the cases of use of unfair means. The said guide lines have been filed as Annexure C. A. II. Paragraph 3 and 4 of the guide lines which is relevant for the present case is extracted below: " (3) After examination, IBPS attempts to detect cases of unfair means on the basis of analysis of responses given by the candidates. THEORETICAL CONSIDERATIONS IN DETECTING AND ESTABLISHING COPYING CASEs In multiple choice objective type tests used by IBPS there are 5 choices/alternative answers in each question out of which only one is the right answer and the other 4 are wrong answers. As far as possible all choices are made attractive enough. Therefore, if the candidate does not happen to know the correct answer, he would select one of the 4 wrong answers by chance. Thus probability of picking a particular wrong answer is 1 out of 4 or 1/4 or 0. 25. Similarly, if the other candidate of the pair also does not happen to know the right answer to the same question he would also select one of the 4 wrong answers. In such a case there will be 16 possible combinations of wrong answers for the pair candidate. Therefore, the occurrence of one question with identical wrong answers by a pair of candidates will be = 1/16 (1/4) = (0. 25)2. Similarly the probability of a pair of candidates having two questions with identical wrong answers would be (0. 25)2 = (0. 25)4. If it is continued in the same way, the probability of the pair marking wrong answers to 12 questions will be (0. 25)24 i. e. 0. 00000000000000035. It means that one can be certain that such an event just cannot occur by chance. It may also be noted that all the wrong answers may not be equally attractive. A popular wrong answer may be chosen by more than 25% of the candidates. Even if one assumes that 50% of these candidates answering a question pick up the particular wrong answer, the probability will be 0. 50. Thus probability of each of the wrong answer for every question can be found out empirically also on the basis of actual answer papers of a sample of say about 10,000 candidates. Even with this probability of 0. 50 for a wrong answer, the probability of a pair candidates selecting identical wrong answers (IWW) in 12 or more questions is very low and leads to the above conclusion. Besides, if the pair of candidates also has very few questions with different responses of Mismatches (i. e. different wrong answers), it further supports the conclusion regarding the pairs of candidates having copied from each other or one another. (4) Based on the above considerations while establishing a case for use of unfair means, we consider the following two important criteria: (A) 1. The pair of candidates has 12 or more questions with identical wrong answers in a test (i. e. IWW 12 or more) 2. The number of questions with different responses is small i. e. less than 5 in the test. (Mismatches 5 or less) The above criteria leaves out some candidates who might have resorted to unfair means but may have very high score on the test (s ). For example, a pair scoring 39 or above in a test of 50 items will have 11 or less questions wrongly answered. In this case IWW cannot exceed 11. In order to examine whether high scoring candidates have resorted to unfair means, different criteria are used. Those pairs of candidates are picked up who have 90% or above questions (45 out of 50) with matching answers. This group is considered on the following two criteria: (B) 1. IWW5 or more (for 50 items test) 2. IWW 7 or more (for 75 items test) 3. Mismatch 5 or less (for 50 items test ). 4. Mismatch 7 or less (for 75 items test) The candidates under criteria (A) are established cases of use of unfair means beyond all reasonable doubts. In the cases of candidates under criteria (B) use of unfair means is suspected. The Board/organisation may further scrutinise these cases on the basis of: 1. Performance in the Descriptive Paper (if any) 2. Performance in the interview. "
(3.) ALLEGATIONS against both the petitioners are that in paper of Hindi out of 50 objective questions both have given same answers for 49 questions and both have given 17 same wrong answers. There is only one question which has been differently answered by both the petitioners. With regard to general knowledge paper, it has been stated that out of 46 questions have been similarly answered by both the petitioners and there are 7 same wrong answers by both the petitioners and there are only two mismatches. These allegations were clearly mentioned in the show cause notice issued to the petitioners. The notices were replied stating that the seating arrangements were such that there was one student in between both the petitioners. Further the book-let were in four different series and it was not possible to copy from each other. Learned Counsel for the petitioners, challenging the order, in support of the writ petition raised following submissions: (1) The guide lines for detecting the unfair means cases has been framed by the IVPS, Mumbai and has i been adopted by the District Magistrate and those guide lines being not statutory cannot be relied for cancelling the candidature of the petitioners. (2) The candidature of the petitioners have been cancelled only on account of suspicion ar probability. The result cannot be cancelled only; suspicion of unfair means. Reliance has been plea on a judgment reported in 1998 (2) LBESR 705 (All) : (1998) 3 UPLBEC 2202, Kumari Shailja Bhalla & Ors. v. Secretary Madhyamic Shiksha Parishad, U. P. Allahabad & Ors. (3) The order impugned also declares that the petitioners are unfit for Government service which is nothing but serious stigma on the career of the petitioners. It was not open for the District Magistrate to observe that the petitioners are not fit for Government service,;