1
HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
W.A.No.942 of 2023
JUDGMENT: (Per Hon'ble Sri Justice Abhinand Kumar Shavili)
Aggrieved by the order dated 23.09.2023 passed in
W.P.No.15811 of 2023 by the learned Single Judge, the
present writ appeal has been preferred.
Heard learned Advocate General appearing for the
appellant and Sri A.Giridhar Rao, learned Senior
Counsel, representing Sri B.Narsing, learned counsel
appearing for the respondents.
It is the case of the appellant-Public Service Commission that it has issued recruitment notification No.4/2022, dated 26.04.2022, for Group-I and in pursuance of the said notification, 3,80,081 candidates have responded. The method of selection consisting of preliminary examination was followed by main 2 examination. The Public Service Commission has conducted preliminary examination on 16.10.2022, 2,85,916 candidates have appeared for the said examination. Unfortunately, the Public Service Commission has cancelled the examination owing to leakage of question paper and once again conducted preliminary examination on 11.06.2023 and every care was taken to ensure that the examination was conducted in a fair and transparent manner and when the results were about to be declared, one of the contesting respondents submitted a representation on 13.06.2023 contending that examination should be cancelled as biometric attendance was not done while conducting the preliminary examination. Without waiting for any orders to be passed on the said representation, the contesting respondents approached this Court by filing 3 W.P.No.15811 of 2023 to cancel the preliminary examination on the ground that no biometric attendance was taken while conducting the preliminary examination. Learned Single Judge vide order dated 23.09.2023 allowed the writ petition, without appreciating any of the contentions raised by the appellant. Hence, the present writ appeal.
Learned Advocate General appearing for the appellant had contended that no doubt, in the notification dated 26.04.2022, it was stated that biometric attendance would be taken, however, as it was not feasible and it was creating lot of technical glitches and uncontrolled last minute rush, the Public Service Commission has dispensed with the procedure of biometric attendance in the said examination conducted on 11.06.2023 and the examination was conducted in a 4 fair and transparent manner. Learned Advocate General had further contended that no complaints were received from any corner except from the three contesting respondents and the learned Single Judge has cancelled the entire examination vide order, dated 23.09.2023, without appreciating any of the contentions raised by the appellant. Learned Advocate General had further contended that in all 2,33,506 candidates have appeared in the entire examination and taking biometric attendance would be a hard task for the Public Service Commission. As there are no allegations of any malpractice or impersonation, the learned Single Judge ought not to have cancelled the preliminary examination. Admittedly, the Public Service Commission has not received any complaints from any corner and without any malpractice in the said preliminary examination, based on the mere 5 presumptions and assumptions of the contesting respondents, the learned Single Judge has cancelled the entire examination without appreciating the fact that hardship would be caused to the un-employed youth. Learned Advocate General had further contended that when examination was conducted on 16.10.2022, due to leakage of question paper, the said examination was cancelled, and hence, the Public Service Commission has taken care in conducting the examination on 11.06.2023 in a fair and transparent manner.
Learned Advocate General had further contended that in the examination held on 16.10.2022, it was there in the hall ticket that biometric attendance would be taken, but in the examination conducted on 11.06.2023 there was no condition prescribed in the hall ticket that biometric attendance would be taken. When the 6 condition of taking biometric attendance deleted from the hall ticket, the learned Single Judge ought not to have cancelled the entire examination on mere assumptions and presumptions of the contesting respondents. All the candidates, who intended to have appeared for the examination, might have downloaded the hall tickets one week before commencement of the examination, which would mean that all the candidates were aware of the fact that biometric attendance would not be taken while conducting the examination. Hence, learned Single Judge was not justified in cancelling the entire examination and directed the Public Service Commission to re-conduct the examination afresh.
Learned Advocate General had further contended that in the Web Note which was published after conducting the examination by the Public Service 7 Commission's website it was stated that earlier 2,33,248 candidates were reported based on preliminary reports on 11.06.2023, subsequently, on verification, and after gathering information, the Public Service Commission has published another Web Note on 28.06.2023 by giving correct figures in respect of number of candidates who have appeared are 2,33,506 and this was being projected by the contesting respondents that large scale irregularities have been committed by the Public Service Commission in conducting the examination. By furnishing some information in a transparent way that too in a website by the Public Service Commission, that does not mean that there were large scale irregularities committed by the Public Service Commission. Admittedly, no complaints have been received from any of the candidates, who have written the examination, 8 except the contesting respondents and at the instance of the contesting respondents, the learned Single Judge ought not to have cancelled the entire examination.
Learned Advocate General had further contended that similar issue fell for consideration before the Apex Court in Saloni vs National Testing Agency & ors1, wherein it was held that there was large scale impersonation done in NEET-UG Examination and to that effect FIR was also registered by the CBI and news was also published in the Newspapers and the Apex Court has dismissed the case with an observation that instances of impersonation and leakage of papers cannot be detriment to the lakhs of students, who have attended the examination. Admittedly, in the instant case also, 2,33,506 candidates have appeared, just because of mere allegation that there was impersonation, the entire selections cannot be 1 W.P. (Civil) No.1083/2021, dated 04.10.2021 9 cancelled. Learned Advocate General had further contended that for attendance of all the candidates, who have appeared for the examination, Nominal Roll Reports was being followed and as per the reports, two Invigilators have to sign after identifying the candidates, but only one Invigilator has signed and this has created a doubt in the mind of the learned Single Judge and only on that ground, learned Single Judge dismissed the writ petition. Number of Invigilators signing is based upon the number of candidates in the examination hall. If the examination hall is big, two Invigilators will sign and for 24 candidates, one Invigilator will sign, which would not be construed that there was impersonation in the examination which was conducted by the appellant. Therefore, appropriate orders be passed in the writ 10 appeal by setting aside the order passed by the learned Single Judge.
Learned counsel appearing for the respondents had contended that Annexure-IV(B) of the notification deals with instructions to candidates regarding OMR based examination and in Clause(1), it is stated that the candidates have to report to the examination venue atleast 30 minutes before the commencement of examination, to record their Photo Image/thumb impression on Biometric system and as per the notification, following biometric attendance is mandatory and in the examination held on 16.10.2022, the very same Public Service Commission has followed biometric attendance for 2,85,916 candidates and the said examination was cancelled owing to question paper leakage and no reasons were assigned as to why the 11 Public Service Commission has dispensed with the biometric system attendance in the examination held on 11.06.2023. As the conditions set out in the notification are mandatory, it casts a doubt in the general public and more importantly the candidates, who have appeared in the preliminary examination, since the Public Service Commission has cancelled the examination conducted on 16.10.2022 on the ground of question paper leakage and no care was taken in conducting the examination again on 11.06.2023. Learned counsel had further contended that after conducting the examination on 11.06.2023 also the Public Service Commission has displayed in the Website on 28.06.2023 that in all 2,33,506 candidates have appeared and it was also mentioned that earlier the number of candidates, who attended the examination were reported at 2,33,248 based on preliminary reports 12 dated 11.06.2023, which would mean nearly 258 candidates were in excess. Earlier statement of the Public Service Commission casts a doubt in conducting the examination and there is every possibility of 258 candidates being in excess in the said examination and the Public Service Commission ought to have taken enough care in conducting the preliminary examination second time.
Learned counsel had further contended that the Public Service Commission has issued a notification for Group-IV on 1.12.2022 and in the said notification also, same condition was imposed stating that biometric attendance would be marked. However, for Group-IV examination, the Public Service Commission has issued an addendum on 23.06.2023 and conducted examinations dispensing with biometric system of attendance, but 13 when it came to the present notification, no addendum or corrigendum was issued stating that biometric attendance would be dispensed with. No doubt, Para 13 of the Notification gives ample power to the Public Service Commission to alter and modify time and withdraw the Notification at any time, duly intimating details thereof to all concerned, as warranted by any unforeseen circumstances arising during the course of this process or as deemed necessary by the Commission at any stage. Learned counsel had further contended that there were discrepancies in the names of the candidates, who have been noted in the nominal rolls, which cast a doubt on the aspiring candidates that there were large scale irregularities in conducting the examination. Further, biometric attendance was marked in the earlier examination which was conducted on 16.10.2022, there is 14 no reason why the Public Service Commission has dispensed with the system of following biometric attendance in the examination conducted on 11.06.2023 that too without issuing any addendum/corrigendum as was done for Group-IV examination by Public Service Commission.
Learned counsel had further contended that in the examination held on 16.10.2022, the Public Service Commission has taken biometric attendance in respect of 2,85,916 candidates. However, in the examination conducted on 11.06.2023 only 2,33,506 candidates have appeared, which would mean that the Public Service Commission was capable of following biometric attendance, and in the counter filed by the Public Service Commission, it has given reasons owning to logistic and man-power issues, they are unable to follow biometric 15 attendance, which is totally incorrect. Therefore, the learned Single Judge was justified in cancelling the entire examination by duly taking into consideration several lacunae in conducting the examination on 11.06.2023 and the same was contrary to the notification.
Learned counsel appearing for the respondents had further contended that the issue as to whether the instructions issued in the notification are binding only on the candidates or to the recruiting agency was considered by the Apex Court in State of Tamilnadu and others vs. G.Hemalathaa and another 2, wherein it was held that the instructions are equally binding on the candidates as well as on the recruiting agency. By following the law laid down by the Apex Court in State of Tamilnadu and others (2 supra), learned Single Judge has cancelled the entire 2 (2020) 19 SCC 430 16 examination. Therefore, there are no merits in the Writ Appeal and the same is liable to be dismissed.
Having considered the rival submissions made by the learned counsel on either side, this Court is of the view that as the Public Service Commission was conducting the examination for second time, it should be more careful and serious in conducting the examination on 11.06.2023. Further, no addendum or corrigendum was issued that they would dispense with the procedure of following biometric attendance as it was done in Group-IV notification and the examination has to be conducted in a fair and transparent manner without creating any doubt. Admittedly, without following the biometric attendance there is every possibility of impersonation in the examination. The argument advanced by the learned counsel for the respondents may 17 be true that there can be impersonation or may not be impersonation but there is a doubt cast on the Public Service Commission that large scale impersonation might have taken place as the Commission has not followed the biometric attendance in the examination. Admittedly, 503 posts were notified. Even if 10 to 15% impersonation has taken place, then conducting the examination itself deprives the rights of all the candidates, who have worked hard and strived hard for the examination and they would be put to irreparable hardship. Learned Single Judge has relied upon the ratio laid down by the State of Tamilnadu and others vs. G.Hemalathaa and another (2 supra), wherein the Hon'ble Supreme Court dealing with the issue whether the instructions set out in the Notification are mandatory or 18 not was considered and held as follows in paragraph No.8 of the judgment:
"We have given our anxious consideration to the submissions made by the learned Senior Counsel for the respondent. The instructions issued by the Commission are mandatory, having the force of law and they have to be strictly complied with. Strict adherence to the terms and conditions of the Instructions is of paramount importance. The High Court in exercise of powers under Article 226 of the Constitution cannot modify/relax the Instructions issued by the Commission."
In view of the law laid down by the Hon'ble Apex Court, it is mandatory for the Public Service Commission to take the attendance of the candidates by biometric system in the preliminary exam held on 11.06.2023. Therefore, the Public Service Commission ought not to have dispensed with the biometric attendance in the examination held on 11.06.2023. The Web Note of the 19 Public Service Commission which was published on 28.06.2023 casts a doubt, because as per the Web Note number of candidates who have appeared in the examination on 11.06.2023 were 2,33,248 and after 17 days, the Public Service Commission had displayed in the website that 2,33,506 have appeared, which would mean 258 candidates have been found in excess. Apart from that a perusal of Nominal Rolls of some of the candidates would reveal that only one invigilator has signed on the Nominal Rolls, but no explanation was given by the Public Service Commission as to why only one invigilator has signed in the Nominal Rolls instead of two. However, the learned Advocate General made a feeble attempt to justify why only one invigilator has signed the Nominal Rolls by contending that for every 24 candidates, one invigilator would sign. But we are not in 20 agreement with the said contention as admittedly in some of the Nominal Rolls two invigilators have signed and the proforma of Nominal Rolls consists of two columns for two invigilators to sign. The proforma is as follows: NAME AND SIGNATURE OF THE INVIGILATOR-1 NAME AND SIGNATURE OF THE INVIGILATOR-2 Care should have been taken to ensure that two invigilators ought to have signed so as to instill confidence, trust and transparency in the candidates. There should be a procedure set out in Instructions that for every 24 candidates only one Invigilator has to sign, but no such procedure is set out. Further, since the Public Service Commission has not followed the procedure prescribed for the attendance of the candidates the learned Single Judge was justified in allowing the writ petition directing the Public Service Commission to re-conduct the examination by cancelling 21 the examination held on 11.06.2023. Therefore, this Court is not inclined to interfere with the order passed by the learned Single Judge.
Accordingly, the Writ Appeal is dismissed. No costs.
Miscellaneous petitions, if any, pending shall stand closed.
________________________________ JUSTICE ABHINAND KUMAR SHAVILI _______________________________ JUSTICE ANIL KUMAR JUKANTI Date:27.09.2023 rkk 22 HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI AND HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI W.A.No.942 of 2023 Date: 27.09.2023 Rkk