Varun Bhardwaj vs State Bank Of India & Ors.
2013 Latest Caselaw 556 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No. 3707/2011

%                                                             6th February, 2013

VARUN BHARDWAJ                                                  ...... Petitioner
                            Through:     Mr. Pradeep Dahiya, Advocate.


                            VERSUS

STATE BANK OF INDIA & ORS.                                      ...... Respondents

                  Through:               Mr. Rajiv Kapur and Ms. Vatsala Rai,
                                         Adovocates.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?    Yes


VALMIKI J. MEHTA, J (ORAL)

1. This writ petition filed by the petitioner under Article 226 of the

Constitution of India seeks appropriate writ or order or direction from this Court to

declare the result of the petitioner for the examination held by the respondent no.1

on 15.11.2009 and thereafter to appoint the petitioner to the post of a clerk for

which the examination was held.

2. The test in question was admittedly an objective type test. Counsel

for the petitioner states that there were four sections of this objective type test.

3. The respondent no.1, on the basis of a report given by the Institute of

Banking Personnel Selection (IBPS) has denied appointment to the petitioner

suspecting that unfair means were used by the petitioner inasmuch as wrong

answers which are given by the petitioner tally with the wrong answers given by

two other candidates namely Ms. Pooja and Ms. Rinku. It is admitted on behalf of

the respondent no.1 that the petitioner was not directly caught in using the unfair

means, however, the scientific consideration which is used by IBPS is applied by

all banks to ensure that whoever has indulged in malpractices should not be

appointed in a bank which deals with public moneys. The relevant averment of

facts in this regard are contained in paras C to I in the preliminary counter-

affidavit, and the same read as under:-

"C. IBPS, who were entrusted with the task of conducting the said written test, evaluated the answer sheets. That the Institute of Banking Personnel Selection (IBPS) is an autonomous body; registered as a Public Trust under the Bombay Public Trust Act of 1950; a Scientific and Industrial Research Organization by the Department of Scientific and Industrial Research, Ministry of Science and Technology, Government of India. The IBPS became an independent entity at the behest of Reserve Bank of India (RBI) and Public Sector Banks. The first Chairman of its Governing Board was Dr Manmohan Singh, the then Governor of RBI. IBPS is envisioned as self governed academic and research oriented institute, with a mission of enhancing human resource development through personnel assessment. The Institute is known for accessing candidates with accuracy, which is time-tested and validated. Since last more than 3 decades, the IBPS has been following a scientific/theoretical method/consideration in detecting the

use of unfair means/malpractices in objective test, by the candidates. The manner and the method in which the IBPS detects the use of unfair means/malpractices in objective tests by the candidates is annexed hereto and marked as ANNEXURE R-2.

D. Based on the scientific and theoretical method, which is time tested, for detection of use of unfair means, IBPS sent a report/analytical data of merit listed pairs of candidates established/suspected to have copied/used unfair means. So far as the Respondent is concerned, the said analytical data clearly showed that it was a case of "use of unfair means" being suspected. The Petitioner had indulged in using unfair means with 2 Candidates namely Ms. Pooja and Ms. Rinku. The basis of suspecting use of unfair means was that there were identical wrong answers (IWW) 6/7 (for 50 items test) in Marketing Aptitude/computer knowledge. Copy of the analytical data prepared by the IBPS, is annexed hereto and marked as ANNEXURE R-3.

E. It is relevant to point out at this stage that the said written test was held on All India basis. Based on the report of IBPS, the Respondent Bank has cancelled the candidature of 976 candidates who had appeared in the said test and which were cases of use of unfair means beyond reasonable doubt as well as cases where use of unfair means was suspected.

F. It is further relevant to state herein that even though the candidates suspected to have copied/used unfair means, were sitting at different venues/centres while writing the said test, it is a rampant practice wherein the candidate have been caught using mobile phone while attempting to answer the question papers. In fact, in the written test held at Hisar, Ludhiana and Karnal centres, the candidates were caught red handed discussing answers, while attempting to answer the question paper. In few cases, the candidates have confessed using the mobile phone/SMS the answers, even though they were sitting at different centres.

G. In the multiple choices objective type test 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 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 happen to select one of the 4 wrong answers. Therefore, the occurrence of one question with identical wrong answers by a pair of candidates will be =1/16=(1/4)2 =(0.25) 2. Similarly the probability of a pair of candidates having 2 question with identical wrong answers would be (0.252) 2=(0.25) 4.If it is continued in the same way, the probability of the pair making wrong answers to 12 question will be (.25) 24 i.e. 0.00000000000000035. The probability of the pair making 7 wrong answers will be (0.25) 14 i.e. 000000003 and 6 wrong answers will be (0.25) 12 i.e. 000000059. It means that one can be certain that such an event just cannot occur by chance.

H. It is respectfully submitted that the Respondent Bank deals with public money, wherein its employees are expected to have highest degree of integrity and trust worthiness, which is must and unexceptionable [AIR (2003) SC 1462]. An employer, particularly like the Respondent Bank, who deal with public money, is entitled to satisfy itself as to the competence of a candidate to be appointed in service.

I. Upright and honest Bank employees are needed not only to bolster the image of the bank in the eyes of the general public, but also to sustain the culture of integrity, virtue and ethics among its employees. It is imperative to maintain a high benchmark of honesty, accountability and good conduct. The Petitioner was to be appointed to the clerical post of the Respondent Bank. They are required to take responsibilities, risk and maintain confidentiality. Thus the decision of the Respondent bank in canceling the candidature of the Petitioner cannot be said to be arbitrary or illegal. " (underlining is mine).

4. A reference to the aforesaid paras shows that the respondent no.1

uniformly applies the scientific test as devised by IBPS to all candidates. It is not

as if the petitioner or any other person is selected or targeted. The respondent, in

para G has given the probability levels for a pair of candidates giving wrong

answers simultaneously, and which are with respect to those questions where 5

similar choices are given. For two persons giving 6 wrong identical answers the

probability is found to be (0.25)12 i.e.0.000000059. The petitioner Mr. Varun

Bhardwaj is found to have 6 identical wrong answers with one candidate Ms. Pooja

and 7 identical wrong answers with another candidate Ms. Rinku. With respect to

a pair of candidates giving 7 wrong answers the probability is in fact much lesser

i.e 0.000000003=(0.25)14.

5. In my opinion, Courts cannot sit as an expert body to decide the

rational test which has been applied by institutions to find out use of unfair means,

and this is because unfair means are on many occasions never found to have been

caught red handed. Of course, it is possible that there may be the greatest

possibility of a co-incidence of the petitioner not having used unfair means,

however, once the respondent no.1 uniformly applies the IBPS test, Courts would

prefer not to interfere for any one of the candidate who gives the examination

inasmuch as this would mean to quashing of the application of the IBPS test which

is used by the respondent no.1 bank which deals with public moneys. No doubt the

petitioner's argument that he was not sitting at the same centre with the other two

candidates with whom the petitioner had same answers, and they were sitting at

different centres in Delhi, but, in these days of technology and communications,

some things do happen and therefore as long as the respondent No.1 is not acting

arbitrarily there is no reason for the Court to interfere.

6. In view of the above, once it is found that there is no discrimination

against the petitioner inasmuch as the IBPS Scientific Test is uniformly applied by

the bank, and also the fact that the probability is so negligible of various wrong

answers being identical for a pair of persons inasmuch as five options are given in

the objective type test, I do not feel in the facts and circumstances of the case that

Courts should substitute its own opinion for that of an expert body.

7. There is hence no merit in this petition, which is accordingly

dismissed, leaving the parties to bear their own costs.

FEBRUARY 06, 2013                                      VALMIKI J. MEHTA, J.
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