- (1.) FOR making recruitment to the post of Assistant Public Prosecutors, the Rajasthan Public Service Commission (hereinafter referred as "the Commission"), initiated process of selection under a notification dated 26.5.2011. A competitive test was conducted on 1.12.2011, wherein as per the petitioners, at least 40 questions were asked from the notes of Professor J.K.Malik, a former Teacher of the University of Rajasthan. While seeking declaration to cancel the entire process of selection, the allegation of the petitioners is that - "petitioners also surprised and found themselves as discriminated after knowing the fact that more than typical fourty questions of assistant public prosecutor grade II exam 2011 were asked from the notes of Professor J. K. Malik, Department of Law, University of Rajasthan Jaipur resulting in to a great resentment prevailing among aspirants. At this juncture it is also relevant to mention that Professor J. K. Malik teacher in a commercial coaching centre i.e. S. Vivekanand, Bapu Nagar, Jaipur which is well known in coaching for posts in legal field i.e. RJS, APP, LA, ADJ etc. Professor J. K. Malik teaches subject of IPC, CRPC & EVIDENCE in coaching institute for long years and also dictates his notes while coaching the aspirants. The bare perusal of notes dictated by Professor J. K. Malik while coaching vis-a-vis question paper of assistant public prosecutor grade II exam 2011, reveals that questions are asked from the notes of Professor J. K. Malik. A common prudent man arrives on the conclusion that either the question paper was settled by Professor J. K. Malik or questions were picked and choose from Professor J. K. Malik's notes after a bare perusal of the question paper vis-a-vis the notes and analyzing the nature of the questions. For convenience, sign of '#' is marked on relevant questions on question booklet (Annex-5) and similarly serial number of relevant question of 'C' series of question booklet is also marked on the notes dictated by Professor J.K. Malik in S. Vivekanand private coaching institute. A copy of relevant part of Professor J.K. Malik's notes prepared in S. Vivekanand coaching institute with marking of serial number of relevant question of 'C' series of question booklet and commercial advertisements of coaching institute wherein name of professor J.K. Malik is shown as tutor are submitted here with and marked as ANNEXURE-8 7 9 respectively. With great respect, it is respectfully submitted that without prejudiced to the above, it is submitted that the a bare perusal of the question paper vis-a-vis the notes prepared by the S. Vivekanand institute clearly reveal that the respondent R.P.S.C. has failed to maintain the settled norms and the transparency for the purpose of settling of the question paper as in the present case, the question paper seems to be settled by the said Prof. J.K. Malik who cannot be said to be a person for the purpose of maintaining confidentiality for his being engaged in the business of private coaching to the aspirants as is evidence from advertisement of S. Vivekanand institute had been published in the "Rajasthan Rojgar Sandesh" dated 1st June, 2011 (Annex-9) wherein the name of said Prof. J.K. Malik has been shown as a Teacher of the institution. In this view of the matter, over and above the matter requires consideration by this Hon'ble Court only from the point of view that it is to be followed strictly by the public agency like the respondent-RPSC that no person who is engaged in such a private practice of giving coaching etc. should not be authorized to settle paper and had there been so, then there would be every possibility of tempering of the confidentiality because by no stretch of imagination, it can be said that such a person engaged in such a business of providing private coaching would not take the benefit of the situation of his being a paper setter so as to see the persons who used to take coaching from him in advantageous position in every possible means."
(2.) THE petitioners have also alleged that some questions asked in the test are either out of syllabi or wrong on several counts and that frustrates the purpose of having best available recruits on basis of merit. In reply the stand of the Commission is that the question paper was not prepared only by Professor J.K.Malik but by consultation with several paper setters. The questions were asked from among the proposed papers given by short-listed examiners and from the question banks available with the Commission in the form of unsolved papers in earlier examination. It is admitted that 25 questions were picked up from the papers proposed by Professor J.K.Malik and out of those 18 are based on provisions of law, 5-6 pertains to leading case laws and two questions are based on reasonings. As per reply, the Commission took all necessary care to ensure fairness in the test and in the course of process undertakings were sought from paper setters that they are not engaged in coaching activities. An undertaking to this effect was given by Professor J.K.Malik also. An affidavit sworn-in by Professor J.K.Malik is also placed on record, contents of which are quoted below:- "1. That allegations made in para 8 of the writ petition that I have been running a commercial coaching centre at my residence and I am also a teacher in a commercial coaching centre i.e. H. Vivekanand, Bapu Nagar, Jaipur at the relevant time i.e. even after my assignment as a paper setter is absolutely incorrect and all such suggestions and allegations are emphatically denied by me. 2. That I was Professor and Dean in the Faculty of Law, University of Rajasthan and soon after my retirement from the said post, I received a communication from the Rajasthan Public Service Commission to work as a paper setter for some recruitment conducted by it particularly for the A.P.P. examination. The said communication was received by me on 10-09-11. 3. That after receipt of said communication, I immediately stopped all coaching activities which I had undertaken soon after my retirement at my residence and also informed the institution where I was undertaking coaching work that now onwards I will not do any coaching work and I have never done any coaching after having been assigned the work of paper setter for A.P.P. Examination. 4. That it is absolutely malicious, false and fabrication to suggest that after having been assigned the work of paper setter, I circulated notes to the students at any coaching centre or any my residence. In fact, after receiving communication from the Rajasthan Public Service Commission for assignment of work as a paper settler, I gave declaration to the Rajasthan Public Service Commission that I am not undertaking any activity with regard to coaching privately or at any coaching centre and based on this declaration, the Rajasthan Public Service Commission assigned me the work of paper setter. 5. That it has been brought to my notice that in this writ petition, some allegations have been made against me that I undertook the work of coaching at my home and at a commercial coaching centre and also circulated some notes to the students. The allegation in this regard is absolutely fabricated and some notes sought to be placed on record are mere fabrication and appears to have been prepared after examination. I have perused these notes and these notes have not been prepared by me nor it was circulated by me at any point of time or dictated by me to any student and I have no role to play in prepare of these notes. Such concoction and fabrication have been made by unsuccessful students just to create confusion and to stal the recruitment sought to be made by Rajasthan Public Service Commission." 5. A reply to the writ petition is also filed on behalf of the State Government with assertion that all necessary care and caution was taken by the Commission while undertaking competitive test. 6. Heard learned counsel for the parties. The first submission of counsel for the petitioners is about huge number of questions taken from the proposed question paper of Professor J.K.Malik, who at one point of time was associated with coaching students for law examinations including the competitive test for Public Prosecutors. It is the position admitted that 25 questions asked for were picked up from the question paper proposed by Professor J.K.Malik, thus, the entire process of selection deserves to be quashed. I have considered the argument advanced from all the aspects relevant. True it is, Professor J.K.Malik was associated with a coaching centre when he was asked to render his services to the Commission as paper setter and proper course before him at that relevant time was to deny for the same, but in any case merely on the count of his acceptance as paper setter is not sufficient to arrive at the conclusion that the process of selection was not fair. As per the reply given by the respondent Commission and also the affidavit sworn-in by Professor J.K.Malik, he disassociated himself with coaching on receiving the offer for being a paper setter. The disassociation was made in the month of September, 2011. The test was conducted on 1.12.2011 and upto 10.9.2011 Professor Malik was not having any knowledge that he would be engaged as a paper setter, thus, whatever coaching or instruction imparted by him prior to that are not of much relevance. No allegation is there and even no material is available on record to establish that after 10.9.2011 Professor J.K.Malik in any manner was associated with the coaching of law students. To quash a process of selection on the count of malpractice or unfairness, the primary requirement is to have adequate material to arrive at a conclusion that some tactices were adopted to extend benefit to an individual or to a group of candidates. A heavy burden lies upon the persons making such allegations to impeach the process of selection. It is necessary to establish that the tactic was adopted with ulterior motive to gain benefit out of that. In the case in hand no details are given about the beneficiaries pertaining to whom any malpractice was adopted. The petitioners have also not pointed out the questions proposed by Professor J.K.Malik which were already available to some of the aspirants. From perusal of the entire question paper which is available on record, it reveals that the questions pertain to certain provisions of law and those are quite innocuous. On basis of such questions no inference can be drawn about any malpractices as suggested on behalf of the petitioners. An allegation is made about putting some mark on specific questions, but the Commission in most unambiguous terms denied that. Nothing is available on record to point out such questions. A process of selection cannot be disturbed on basis of the allegations unless those are proved adequately with their effect and prejudice caused to the non-beneficiaries of the malpractice adopted to put forward few persons. In the instant matter I do not find any material adequate to accept the allegation of the petitioners that any prejudice was caused to any person and someone was gainer due to acceptance of Professor J.K.Malik as paper setter. 7. The other argument, though not pressed into service with required vehemence, is that certain questions asked for are not part of syllabi and certain questions were suffering from error in their answers is concerned, suffice to mention here that those are required to be considered by the Commission at its own, through experts, if the petitioners submit any representation to point out such wrongs. For the reasons given above, these petitions for writ are dismissed. However, the respondents shall consider the representations, if any submitted by the petitioners within a period of two weeks from today regarding their grievances pertaining to the questions out of syllabi and other errors in the question paper. The respondent State, if make any appointments on the post of Assistant Public Prosecutors on basis of the process of selection in question, then that shall be open for review, if any wrong is found with the question papers after considering representations submitted by the petitioners.;