S.Rafat Alam, Sudhir Agarwal - (1.) HEARD Shri K. Ajit, learned counsel for the appellants and the learned standing counsel for the respondents.
(2.) THESE intra court appeals arise from the judgment dated 22.12.2006 of the Hon'ble single Judge whereby Civil Misc. Writ Petition No. 33147 of 2001 of the petitioners has been dismissed. The facts, in brief, giving rise to the present dispute are that respondent No. 2, i.e., District Magistrate, Kanpur Dehat got an advertisement published in February, 1999 inviting applications for recruitment to the post of Lekhpal (pay scale 350-590). The petitioners-appellants (hereinafter referred to as 'the petitioners') appeared in the written examination held on 5.11.2000, the result whereof was declared on 5.10.2001. The petitioners result was withheld for using unfairmeans. They filed Civil Misc. Writ Petition No. 33147 of 2001 wherein an interim order was passed on 6.12.2001 directing the respondents to interview the petitioners provisionally, if they were successful in written test but their result shall not be declared. The respondents were also permitted to pass a fresh order after giving opportunity. The petitioners were interviewed but no appointment letter was issued though they were declared successful after interview. Further, pursuant to the interim order dated 12.6.2001 the District Magistrate, Kanpur Dehat issued show cause notice dated 18.12.2005, which was replied by the petitioners on 21.10.2005. Thereafter, an order was passed by the District Magistrate cancelling the candidature of the petitioners on 28.10.2005 on the ground of unfairmeans. It may also be mentioned that they were also sent for training but due to pendency of the writ petition appointment was not made. The writ petition has been dismissed by the Hon'ble Single Judge considering in great detail the scheme of examination followed by the respondents, which, as per the view taken by the Hon'ble Single Judge, does not admit scope of doubt that the petitioners were guilty of unfairmeans. Learned counsel for the petitioners contended that he is not doubting the correctness of the guidelines of the respondents for determining as to when it can be said that the candidates are guilty of unfairmeans. He, however, submits that the guidelines or scheme would only be an indicator to show that there is a strong suspicion against the candidates of having indulged in unfairmeans if they fall within the mischief described in the guidelines. However, before punishing the candidates on the ground of unfairmeans it has to be seen that there is no other view possible except that the candidate must have indulged in unfairmeans. In the case in hand, from the order of the District Magistrate it is evident that no person of ordinary prudence on the basis of material available can say that the petitioner had indulged in unfairmeans. There were two grounds mentioned in the show cause notice to find out that whether petitioners are guilty of unfairmeans in the matter (1) twelve and more questions were answered wrongly giving similar wrong answers (2) the different answers are less than five.
(3.) IT is said that there was suspicion of their indulgence in unfairmeans in General Hindi and General Knowledge papers. The learned counsel submitted that though show cause notice was issued to the petitioners by the District Magistrate but he himself had not seen any thing to infer that the petitioners are guilty of unfairmeans. He had mechanically followed the report of the private agency, which was authorized to conduct the examination. He also pointed out that there is an incoherence in the various documents of the respondents. In the counter-affidavit Annexure CA-2 shows that the petitioner-Dharmendra had attempted 49 questions in General Hindi and 46 questions in General Knowledge papers whereas Annexure CA-1 shows that the said petitioner had attempted 42 questions in General Hindi and 49 questions in General Knowledge papers. He further pointed out that two petitioners are alleged to have committed unfairmeans and inference has been drawn by comparing answer sheets of the two petitioners though it does not borne out from the record. To show inconsistency in drawing the aforesaid inference, as evident from the documents filed alongwith counter-affidavit, it would be useful to mention his submission and demonstrate the facts as under : "5. .......as per the allegations of use of unfair means by the petitioner with another candidate Gyanesh Kumar, these two candidates had attempted 42 questions out of 50 and of which 24 were correct so obviously matching and 18 were incorrect and out of which only one was mismatching (vide Appendix III to C.A. 1). Thus, as per Appendix III to C.A. 1 and analysis by I.B.P.S. These two candidates had given 41 matching answers (24 correct and 17 incorrect), whereas only one answer was mismatching. However, perusal of the answer sheets Appendix I to II to C.A. 1, gives a totally different picture. According to the answer sheet of General Hindi from question No. 1 to 50 (Appendix 1 to C.A. 1), the petitioner-appellant and Gyanesh Kumar had opted option No. 1 to 5 in the following numbers : Petitioner-Appellant Option No. 1 = 6 times Option No. 2 = 10 times Option No. 3 = 9 times Option No. 4= 6 times Option No. 5 = 11 times Gyanesh Kumar Option No. 1 = 8 times Option No. 2 =11 times Option No. 3 = 8 times Option No. 4 = 8 times Option No. 5 = 7 times From the perusal of above it is clear that total number of mismatching answers between the two candidates comes to 10. If 24 answers are correct then they are matching and the allegations are that out of 18 incorrect answers of the above two candidates 17 are matching incorrect answers and this cannot be possible in the present case because mismatching answers are 10 in numbers and they are obviously incorrect answers. So the very allegations and the calculations become baseless because if 10 answers are mismatching out of 18 incorrect answers then only 8 incorrect answers are found to be matching........." "6. ...........in the subject of the General Knowledge there were 17 matching wrong answers were given by the petitioner-appellant and Gyanesh Kumar is absolutely incorrect. Here again the 3 documents referred to in the presiding paragraphs give different picture. From the perusal of answer sheet it is clear that the petitioner-appellant had attempted 49 questions and not 48 as referred to as Appendix II to C.A. 1. Even on the basis of Appendix III, if it is taken that out of 48 questions where only 40 questions were correct then it means all the 40 questions were matching and only 8 questions were incorrect. The allegations are that out of 8 incorrect questions 7 questions were matching and 2 questions were mismatching. This cannot be because as per Appendix II to C.A. 2, 46 questions were attempted and as per Appendix III to C.A. 1, 40 questions were correct answers and so there could be only 6 incorrect answers and so the calculations of 9 incorrect answers in Appendix II to C.A. 2 is absolutely baseless. Even going by answer sheet, i.e., Appendix 1 to C.A. 1 and Appendix III to C.A. 1, the petitioner-appellant had attempted 49 questions out of which 40 questions were correctly answered. So the total number of incorrect answers comes to 9 but the mismatching answers are more than 2 as the number of options attempted by the petitioner-appellant and Gyanesh Kumar is in the following order in the Subject of General knowledge : Petitioner-Appellant Option No. 1 = 12 times Option No. 2 = 13 times Option No. 3 = 11 times Option No. 4 = 5 times Option No. 5 = 8 times Gyanesh Kumar Option No. 1 = 13 times Option No. 2 = 10 times Option No. 3 = 11 times Option No. 4 = 7 times Option No. 5 = 8 times From the perusal of the above it is clear that total number of mismatching answers between the two candidates come to 6. If 40 answers are correct then they are matching and the allegations are that out of 9 incorrect answers of the above two candidates 7 are matching incorrect answers and this cannot be possible in the present case because mismatching answers are 6 in numbers ........" ;