Saurav Kumar vs The State Of Bihar
2023 Latest Caselaw 4823 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.6034 of 2023
     ======================================================

Priya Kumari, Daughter of Sri Jagdish Das, Resident of Magistrate Colony, Road No. 4, Phulwari Sharif, Police Station-Phulwari Sharif, District-Patna.

... ... Petitioner/s Versus

1. The State of Bihar through Chief Secretary, Main Secretariat, Patna 800015.

2. The Principal Secretary, General Administrative Department, Government of Bihar, Main Secretariat, Patna 800015.

3. The Bihar Staff Selection Commission, Veterinary College, Near Airport Sheikhpura, Patna 800014 through the Secretary.

4. The Chairman, Bihar Staff Selection Commission, Veterinary College, Near Airport, Sheikhpura, Patna 800014.

5. The Secretary, Bihar Staff Selection Commission, Veterinary College, Near Airport Sheikhpura, Patna 800014.

6. The Home Department, Economic Offences Wing, through Additional Director General of Police, Main Secretariat, Patna 800015.

7. The Economic Offences Unit through Deputy Inspector General of Police (DIG), Rajbanshi Nagar, Patna 800001.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 2376 of 2023 ======================================================

1. Ashwani Kumar Sinha, Son of Sri Kapildeo Narayan Prasad, Resident of 1/29, New Alkapuri, Police Station- Gardanibag, District- Patna.

2. Ravi Ranjan, Son of Sri Ganesh Prasad, Resident of Gardanibagh Magadh Bihar Beside D-7, Police Station- Gardanibag, District- Patna.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Bihar Staff Selection Commission through its Secretary having its office at Veterinary College Campus, Patna.

3. The Chairman, Bihar Staff Selection Commission, Patna.

4. The Additional Director, General of Police (E.O.U), Economic Offence Unit, Bihar, Patna.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 5802 of 2023 ====================================================== Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

1. Saurav Kumar, S/O- Ashok Prasad Singh, Resident of village- Kiratpur, P.S.-

Bhagwanpur, P.O- Bhagwanpur, District- Vaishali.

2. Sukant Pathak, Son of Satyendra Kumar Pathak, Resident of Mohalla- 18, S.K, Nagar, Rishra, P.S- Serampore, P.O- Provash Nagar, District- Hoogly.

3. Ajit Kumar Yadav, Son of Virendra Singh Yadav, Resident of village- Kanak Narayanpur, P.S- Buxar Musfil, P.O-Akhauri Gola, District- Buxar.

4. Sonu Kumar, S/o- Ganauri Singh, Resident of village- Mahadoi Nagar, P.S-

Karaypravray, P.O- Berthu, District- Nalanda.

5. Md Subaktagen Ghazaniar, Son of Ralimuddin, P.S and P.O- Phulwari Sharif, District- Patna

6. Shyam Dev, Son of Shiv Shankar Thakur, Resident of village- Jamlapur, P.S-

Nayagaon, P.O- Jamalpur, District- Munger.

7. Vinay Kumar, Son of Vinod Thakur, Resident of village- Parwara, P.S-

Belsar, P.O- Sain, District- Vaishali.

8. Om Prakash Kumar, Son of Yogendra Baitha, Resident of village- Shahari, P.S and P.O- Chaudana, District-East Champaran.

9. Smriti Kumari, C/O- Sanjay Kumar Singh, Resident of House No. 11, Nepali Nagar Chandra Vihar Colony, P.S. Rajeev Nagar, P.O- Ashiana Nagar, District- Patna.

10. Suraj Kumar Singh Tomar, Son of Shiv Shankar Prasad Singh, Resident of Ward No. 5, Sukhasan Uttarwari, P.S- Madhepura, P.O- Sukhasan Chakla, District- Madhepura.

11. Ravi Kumar, Son of Lal Babu Sah, Resident of village- Berbas, P.S-

Bakhari, P.O- Barbas, District- Sitamarhi.

... ... Petitioner/s Versus

1. The State of Bihar, through the Chief Secretary, Government of Bihar, Patna.

2. The State of Bihar, through the Additional Chief Secretary, Department of Education, Government of Bihar, Patna.

3. The Director, Secondary Education Department, Government of Bihar, Patna.

4. The Bihar Staff Selection Commission, Patna through its Secretary, Veterinary College Campus, Patna- 800014.

5. The Chairman, Bihar Staff Selection Commission, Patna Veterinary College Campus, Patna- 800014.

... ... Respondent/s ====================================================== Appearance :

(In Civil Writ Jurisdiction Case No. 6034 of 2023) For the Petitioner/s : Mr. Kundan Kumar Ojha, Advocate For the State : Mr. P. K. Verma, AAG-3 Mr. Sanjay Kumar Ghosarvey, AC to AAG-3 For the BSSC : Mr. P. K. Shahi, Senior Advocate Mr. S. S. Sundaram, Advocate Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

For the EOU : Mrs. Soni Shrivastava, Advocate (In Civil Writ Jurisdiction Case No. 2376 of 2023) For the Petitioner/s : Mr. Dinu Kumar, Advocate Mr. Hriday Kant Mishra, Advocate Mrs. Ritika Rani, Advocate For the Respondent/s : Mr. Manoj Kumar, AC to GP-4 For the Commission : Mr. P. K. Shahi, Senior Advocate Mr. Satyam Shivam Sundaram, Advocate For the EOU : Mrs. Soni Shrivastava, Advocate (In Civil Writ Jurisdiction Case No. 5802 of 2023) For the Petitioner/s : Mr. Dinu Kumar, Advocate Mrs. Ritika Rani, Advocate For the State : Mr. P. K. Verma, AAG-3 Mr. Sanjay Kumar Ghosarvey, AC to AAG-3 For the BSSC : Mr. P. K. Shahi, Senior Advocate Mr. Satyam Shivam Sundaram, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY

CAV JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 26-09-2023

Sri P. K. Shahi, learned Senior Counsel appearing for

the Bihar Staff Selection Commission (for brevity, 'the

Commission') asserted that the PIL has been filed without any

locus standi and two candidates who had appeared in the

examination had moved writ petitions, which were pending

before the Single Judge having roster. The writ petitions were

kept pending since the PIL was pending before the Division

Bench and the entire selection process is put on hold because of

the pendency of the writ petitions, especially since the

petitioners have sought for cancellation of the preliminary test

conducted and a re-examination; when the final examination

itself is over.

Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

2. We specifically asked the public interest litigant, in

the above circumstances whether the PIL can be withdrawn so

that the matter can be agitated before the learned Single Judge.

However, the petitioner insisted that the PIL be adjudicated, in

which circumstance, to have a quietus to the issue, we called for

the writ petitions and the learned counsel for the writ petitioners

also consented to the matters being heard by us.

3. The dispute arises with regard to the 3 rd Graduate

Level Combined Competitive Examination-2022 conducted for

recruitment to various posts numbering 2187 in six different

services carried out by the Bihar Staff Selection Commission.

The recruitment was commenced with an advertisement bearing

No.1/22 dated 06.04.2022. The preliminary examinations were

held on 23rd and 24th December, 2022 and the prayer is to cancel

the entire preliminary examination so as to conduct a fresh one;

alleging malpractices in the examination, specifically of leakage

of question papers.

4. Learned Counsel Sri Dinu Kumar, appearing for the

petitioners in the writ petitions called for, argued that due to the

very same allegation of leakage of question paper, the

preliminary examination conducted in the 1st session in the

morning of 23.12.2022 was cancelled. However, the 2nd session Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

on the very same day and that on 24.12.2022 was proceeded

with on the premise that there was no leakage of question papers

with regard to the said two sessions. It is specifically pointed out

that even the question paper of the examination on 24.12.2022

was similarly uploaded and had gone viral, thus, seriously

affecting the credibility of the examination conducted. It is

alleged that there is an 'Examination Managing Syndicate' in

operation, with the active connivance of the respondent

authorities. The Economic Offences Unit registered a first

information report on a cooked up story that the question paper

went viral only one minute before the time stipulated for the

examination. When the 1st session on 23.12.2022 was cancelled,

there is no reason why the entire preliminary test is not

cancelled and a fresh one held; which would enhance the

credibility of the selection process and also ensure transparency.

It is pointed out from the FIR registered by the EOU produced

as Annexure-C at page 172 and the report submitted produced as

Annexure-F at page 246 (CWJC No.5802 of 2023), that, both of

these, indicate collusion and connivance of the authorities also.

The learned counsel would specifically rely on the decisions of

the Hon'ble Supreme Court in Chairman, All India Railway

Recruitment Board v. K. Shyam Kumar; (2010) 6 SCC 614 Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

and Sachin Kumar v. Delhi Subordinate Service Selection

Board (DSSSB); (2021) 4 SCC 631, to emphasize that any

recruitment to public office has to be fair, transparent and

accountable and any allegation of irregularity, malpractices and

illegality would seriously put in question the legitimacy of the

examination and the very recruitment process itself. The

petitioners would seek cancellation of the entire examination

and a re-test to be conducted.

5. Sri P. K. Shahi, learned Senior Counsel appearing

for the Commission specifically refers to the counter affidavit

and points out that the Commission had considered the

allegations raised, both regarding the 1 st session of the

examination conducted on 23.12.2022 and of the next date. The

question paper of the first session was uploaded on 23.12.2022

at around 11.15 A.M. by a candidate participating in the written

test. On the next session, on 24.12.2022, the Invigilators had

handed over the mobile phones surrendered by the candidates,

just a minute before the examination, which resulted in one of

the candidates uploading the question paper in the third session

on the social media. It was found that the said uploading was

done only at 12.14 P.M.; when the examination time ended at

12.15 P.M. putting at rest any possibility of, even the candidate Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

who uploaded the question papers having committed any

malpractice, leave alone the others. The FIR was registered

immediately on the offence coming to the notice of the

Commission and merely based on the FIR and also the report

filed, there cannot be a knee jerk reaction to the allegation

raised.

6. The Commission had deliberated upon the issue

and taken a decision to cancel the first session but continue with

the third session held on the next day; which in the totality of

the circumstances is proper. It is pointed out that the

examination was a massive exercise in which many persons

applied and a re-examination would result in unnecessary

financial burden on the State. It is specifically emphasized that

financial liability was not the only consideration because the

Commission had cancelled the preliminary test of the 1 st session

on 23.12.2022 on being satisfied that there could have been a

malpractice conducted. As far as the third session on

24.12.2022, the Commission was convinced that there was no

reason to conduct a further test, which, weighed in the balancing

scales, would be unquestionable. The decision of the

Commission cannot be questioned under judicial review, where

the decision making process is alone under question and not the Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

decision itself, argues learned Senior Counsel.

7. Smt. Soni Srivastava, the learned counsel appearing

for the Economic Offences Unit fully supports the contentions

raised by the Commission and restrained herself from making

any comment on the FIR filed at Annexure-C as also the report

at Annexure-F specifically since the investigation is going on.

8. Sri Kundan Kumar Ojha, learned counsel appearing

for the public interest litigant emphasized that the allegation was

not with respect to one sender and that there was another

uploading of question paper which had occurred from another

person, against which also an FIR was filed. However, to the

specific query as to the FIR number, the counsel was unable to

answer. We queried the learned counsel as to how a public

interest litigation is maintainable, especially when the two writ

petitions are pending by the affected parties. The learned

counsel would inform us that only on the request made by some

candidates, the petitioner, a social activist, had moved the High

Court, especially when there was an ongoing agitation by the

candidates and there was also a lathi charge to quell such

agitation. The learned counsel also referred to a supplementary

affidavit filed; which we failed to find from the records.

9. At the outset, we have to notice that both the Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

decisions cited by Sri Dinu Kumar are instances where the

recruitment agency cancelled the examination on allegation of

malpractices which were overturned by the jurisdictional High

Court; which interference was found by the Hon'ble Supreme

Court to be not proper.

10. In Chairman, All India Railway Recruitment

Board (supra), the allegations were of various malpractices of

mass copying, leakage of question papers and impersonation. A

vigilance report was placed on record wherein it was indicated

that 100-200 candidates were suspected to have obtained

answers for the questions, three hours before the examination

through some middlemen. Impersonation was alleged in respect

of 62 candidates and 06 candidates were found to have adopted

unfair means on close scrutiny of the answer papers. The

leakage of question paper was pre-planned and wide spread and

there was a possibility of involvement of the recruitment agency

and the officials of the Railways, as also outsiders. The Hon'ble

Supreme Court noticed the Wednesbury principles, based on

which the High Court had interfered with the cancellation;

which was held to be improper. The Court also specifically

applied the proportionality test, which is a mite higher in

standards, since the Court would be entitled to examine the Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

balancing considerations, so as to understand the intention of the

decision maker and ensure whether the correct balance or

equilibrium, has been struck. It was specifically noticed that in

the examination under scrutiny, more than ten lakh applications

were received out of which almost six lakhs were found to be

eligible. More than three lakh candidates appeared in the written

test out of which only 2690 were selected. The three options that

were available to the recruiting agency in the wake of the

allegation of serious infirmities were spelt out. The first of these

alternatives was to cancel the entire written test and to conduct a

fresh one, the next, to carry out a retest of 2690 candidates to

ensure their credentials and the last, was to go ahead with the

written test confining the investigation to the sixty-two

candidates who were alleged with impersonation. On balancing

considerations, it was held that the decision of the Board to

accept the request of the candidates who had approached the

Court, to conduct re-test of 2690 candidates, who had qualified

in the preliminary test, was perfectly in order. There was no

Wednesbury unreasonableness vitiating the decision and even on

the principle of proportionality, the decision maker, the

recruiting agency, had struck a correct balance in accepting the

second alternative; was the categoric finding. Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

11. We specifically notice that even in the wake of

wide spread allegations of malpractices and irregularities as also

allegation of collusion of both the recruiting agency and the

recruiting body, there was no cancellation of the entire

examination and only re-test of the successful candidates was

upheld by the Hon'ble Supreme Court. In the instant case, there

is alleged a solitary uploading of question paper, at the last

moment, without any possibility of a malpractice having

occurred.

12. Sachin Kumar (supra) was also a case in which

the recruiting agency had cancelled the examination on

multifarious allegations of leakage, mass cheating,

impersonation and allotment of common examination centers

and rooms to members of the same family. The Tribunal

interfered with the cancellation which was affirmed by the High

Court. The Hon'ble Supreme Court reiterated that the decision

of the recruiting body though open to judicial scrutiny, it was

subject, of course, to the settled principle that the recruiting

authority must have a measure of discretion to take decisions in

accordance with law which are best suited to preserve the

sanctity of the process. A fair and reasonable process of

selection was found to be a fundamental requirement of not only Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

equality of opportunity, enshrined under Article 16(1) of the

Constitution of India but also a mandate under Article 14.

Deliberating on the issue, when a selection process can be held

to be vitiated, it was held that on one end of the spectrum, are

instances where there is a systemic fraud or irregularity alleged,

rendering the entire process illegitimate and on the other end is

the possibility of segregation of persons who have indulged in

malpractices, to penalize them for their wrong doing; in which

later circumstance it would be unfair to impose the burden of

their wrong doing on those who are free from blame.

13. In the present case, there are two instances which

have led to the allegations in two separate sessions, the first of

such allegations was found to be one which could have systemic

consequences upon which the examination was cancelled.

However, on the third session, it was found to be a wrong doing

which could have had no consequences touching upon the

sanctity or legitimacy of the examination, since there could have

been no misdeeds on the basis of the uploading of the question

paper, just a minute before the conclusion of the session.

14. We have also looked at the counter affidavit of the

State which was emphatically read over by Sri.P.K. Shahi. We

queried the learned Senior Counsel as to how an uploading of Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

the question paper at 11:15 A.M., after the examination

commenced, could result in the examination itself being

cancelled. It was his reply that the Commission on inquiry, was

satisfied that there could have been answers circulated to

specified candidates, through mobile phones and though mobile

phones were prohibited inside the examination halls, there could

be instances where the candidates had smuggled in such

instruments. Hence, to maintain transparency and ensure

credibility to the test conducted, the first session on 23.12.2022

was cancelled and re-test conducted. It was pointed out that this

specifically indicates that the Commission was not averse to

conduct a re-test, if there was even a possibility of malpractice

having been conducted in an examination. However, with

respect to the session on 24.12.2022, it is asserted that there was

absolutely no possibility of a malpractice since the question

papers were uploaded at 12:14 P.M. and even the candidate who

did that, could not have reaped any benefit out of the same;

leave alone any others, having been supplied with answers,

since it could only have occurred after the examination

concluded; going by the time-line indicated.

15. It is stated in the counter affidavit that when the

Commission received information of rumors of the question Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

papers of the second sitting on 23.12.2022 and the first sitting

on 24.12.2022; having been made viral after three days of the

examination; the Commission issued a notice dated 28.12.2022

calling for any evidence or proof regarding leakage of question

papers of the aforesaid two sessions of the preliminary test. The

Commission received certain complaints on the e-mail, to

examine which a Committee was constituted on 31.12.2022.

The Committee having scrutinized the materials/information

received, was of the opinion that there was no chance of any

malpractice having been conducted in the third session of the

examinations. Therein, allegations arose only because of the

photograph of question booklet bearing No. 2886850, allotted to

one of the candidates at the B.S. College Centre in Danapur

having gone viral. The candidate had captured the picture of his

question booklet in his mobile phone at the last moment of the

scheduled time of the examination and had forwarded it to

another, after about an hour.

16. The Commission had lodged an F.I.R. at the

Economic Offences Unit, Patna bearing Police Case No. 1/2023

dated 04.01.2023, a copy of which is annexed as Annexure-C.

The report of the Economic Offences Unit extracted in

Paragraph 13 of the counter affidavit indicates that the candidate Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

who clicked the picture of the examination paper, did it at 12:14

P.M. from his cell-phone which was handed over to him by the

invigilator just before the completion of the examination.

Noticing the fact that the stipulated time of the examination

concluded at 12:15 P.M. and after a preliminary examination of

the cell-phone, it was prima facie found that the candidate did

not forward the captured picture to anyone during the course of

the examination. The candidate had forwarded the same to one

of his named friends at 1:10 P.M. after about 55 minutes from

the conclusion of the third session of the examination; who

subsequently forwarded the same to a student's group which

became viral. It was categorically reported that the question

paper in the third session of the examination conducted on

24.12.2022 went viral after the conclusion of the examination. It

was also the opinion of the Economic Offences Unit that the

leakage of question paper did not create any impact on the

sanctity of the examination nor did it cause prejudice to the

examinees.

17. The specific allegation regarding what occurred in

Darbhanga, which led to the second FIR, has also been dealt

with by the Economic Offences Unit. One another person had

downloaded the photo uploaded at 12:14 P.M., to spread Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

misconception amongst students and the general public and also

to enable cancellation of the third session of the examination.

The claim made by the said person from Darbhanga was that the

question paper was made viral at 09:09 A.M.; which was only

by manipulating the time stamp of the picture in his gallery. The

question paper which was downloaded at Darbhanga was the

very same question paper uploaded by the candidate who

appeared in Danapur, evidenced by the identical Roll Number

seen in the question paper made viral from Darbhanga. The

mobile phone instruments of both, the candidate who appeared

at Danapur and the person who downloaded the question paper

from Darbhanga, were seized and sent for forensic examination.

18. We do not think that the F.I.R. in any manner

creates a doubt regarding the sanctity of the examination or

provides sufficient ground to unsettle the decision of the

Commission. The F.I.R. registered with respect to the uploading

of the question paper, done from Danapur by a candidate, refers

to the possibility of the invigilators deputed in the examination

hall, other personnel working in the examination center and

outsiders being involved in the conspiracy. This is only a first

information and on such probabilities alone, there is no question

of an examination of the scale in which it was conducted being Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

upset fully.

19. In this context, we specifically notice the report of

the Superintendent of Police, Economic Offences Unit,

submitted to the Secretary, Bihar Staff Selection Commission,

Patna, a translation of which is extracted hereunder:-

"To, Secretary Bihar Staff Selection Commission Patna

Dated 29.04.2023

Context-Economic Offences Police Station Case No.- 01/2023, dated-04.01.2023, Section- 420/ 467/ 468/ 469/ 471/ 120(B)/34 I.P.C, 66 I.T Act 2000 and Section- 10 Bihar- Examination Control Officer.

Subject-Regarding taking disciplinary action against the invigilators deputed in Room no.- 7 of B.S College, Danapur.

Sir, In relation to the above-mentioned context and subject, it is to be informed that B.S College, Danapur was marked as centre of 3rd Graduate Level Combined (Preliminary) Competitive examination- 2022. 1. Trivendra Kumar, 2. Poonam Verma, 3. Raju Kumar, 4. Ramesh Kumar were deputed as invigilators in room no.- 7 of B.S College, Danapur. On the fixed date- 24.12.2022 the first shift of the examination started in room no.- 7 of B.S College, Danapur.

Shortly before the conclusion of the examination, at about 12:13 O' clock the peon brought the deposited mobile to room no.- 7 and the mobiles of all the candidates were distributed in the presence of the said invigilators before the Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

conclusion of the examination, at that very time, an examinee named Prashant Kumar took the opportunity and clicked photo of the pages of his question paper no- 2886850 and went out. Later on it was revealed that the same question paper which was clicked became viral the photo of which was clicked by the said examinee. Whereas, according to the rules, Mobile and other deposited objects are returned only after conclusion of the examination or submission of the Question paper and O.M.R, but this was not done by the deputed invigilators. Thereafter the Economic Offences Unit got the information. After receiving the information investigation was made and F.I.R was registered.

Had the permission been given by the invigilators deputed in room no. 7 of B.S College, Danapur, namely 1. Trivendra Kumar, 2. Poonam Verma, 3. Raju Kumar, 4. Ramesh Kumar performing their duty honestly for handing over the deposited mobiles to the candidates after the conclusion of the exam or after submission of question paper and OMR sheets, the question paper would not have been viral and the said examination would have been concluded properly. From this, it is clear that the invigilator have done negligence and indiscipline in their duties due to which the question papers of the Third Graduate Level Combined (Preliminary) Competitive Exam-2022 got viral.

Hence, action to be taken against the invigilators deputed in room no.- 7 of B.S College, Danapur namely 1. Trivendra Kumar, 2. Poonam Verma, 3. Raju Kumar, 4. Ramesh Kumar.

Sincerely

Sd/- (Illegible) Superintendent of Police Economic Offence Unit Bihar, Patna"

Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

The said report is urged by the petitioners to challenge the

sanctity of the examination on the allegation that there is

collusion and connivance by the authorities also.

20. What we understand from the above extract is that

in that specific examination center at Danapur, prior to the

conclusion of the stipulated time of the examination; just two

minutes before that, the peon brought the mobile phones

surrendered by the candidates, to the hall and distributed it to

the candidates. This resulted in one of the candidates taking a

picture of his question paper and uploading it, which was at

12:14 P.M. What is asserted in the report is that the invigilators

were not authorized to hand over the deposited mobiles to the

candidates prior to the conclusion of the examination and prior

to the submission of the question papers and OMR Sheets, to the

invigilators. It was opined that there should be action taken

against the invigilators whose negligence and indiscipline

resulted in the question paper of the examination going viral.

This is not to say that there was possibility of a malpractice in

the examination or a collusion or connivance of the invigilators.

In fact, the report of the Economic Offences Unit, as extracted

in the counter affidavit, is to the contrary. It has been asserted

that there is no impact on the sanctity of the examination. But, Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

the negligence of the invigilators led to such allegations being

raised and the recruitment process itself being kept on hold for

long. Hence, appropriate action was recommended against this

negligence and there is no whisper of a connivance or collusion.

21. The mere fact that there was negligence on the

part of the invigilators in handing over the mobile phone before

conclusion of the examination cannot lead to cancellation of the

entire examination; unless such action leading to uploading of a

question paper, a direct result of the negligence, resulted in

malpractices being conducted. As is pointed out by the

Commission, on the mere possibility of a malpractice having

occurred, for reason of the question paper having been uploaded

after the examination commenced, but an hour before its

conclusion; the Commission cancelled the first session of the

examination on 23.12.2022 and conducted a fresh test. Hence,

the Commission was not concerned only with the financial

implications and we are of the opinion that as has been held in

Sachin Kumar (supra), the Commission balanced the two

competing considerations highlighted therein, of "the need to

preserve public confidence in and the sanctity of selection to

public posts and the requirement of observing fairness to

candidates who invest time and resources in attempting to clear Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

through a selection" (sic).

22. A mere allegation cannot lead to cancellation of an

examination unless it raises a reasonable doubt in the mind of

the authority as to the possibility of the allegation being true and

established. We also pertinently notice the principle as stated in

Chairman, All India Railway Recruitment Board (supra).

Paragraphs 36 and 37 thereof are extracted hereunder:-

"36. Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to "assess the balance or equation" struck by the decision- maker. Proportionality test in some jurisdictions is also described as the "least injurious means"

or "minimal impairment" test so as to safeguard the fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice it to say that Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalise or lay down a straitjacket formula and to say that Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] has met with its death knell is too tall a statement. Let us, however, recognise the fact that the current trend seems to favour proportionality test but Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] has not met with its judicial burial and a State burial, with full honours is surely not to happen in the near future.

37. Proportionality requires the court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-

maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. The court entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate i.e. well balanced and harmonious, to this extent the court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere."

23. With the above principle in mind, we look at the

decision of the Commission to cancel the first session of the test

on 23.12.2022 and the decision to proceed with the evaluation

of the test conducted on 24.12.2022. It cannot be said that the

refusal to cancel the test on 24.12.2022 is unreasonable going by

the facts disclosed in so far as the allegation of uploading of the

question paper occurred, only one minute before the conclusion

of the stipulated time. There was no possibility of any candidate

being supplied with the answers or even the candidate who

uploaded it, having marked the answer paper in accordance with

such a malpractice. Even applying the test of proportionality, we

find no fault in the aim and intention of the decision maker and

we are of the opinion that the decision maker, the Commission,

who is the recruiting agency, had struck the correct balance and

equilibrium. The decision is well balanced and harmonious,

especially considering the fact that the earlier session, on the

mere possibility of a malpractice having occurred, was

cancelled. The decision of the Commission to conduct a re-test

of the examination held on 23.12.2022 more than reveal the Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

bonafides of the Commission and its endeavor to maintain the

sanctity and legitimacy of the examination conducted. This

cannot be considered in isolation and merely because one of the

sessions was cancelled, without anything otherwise substantial,

there cannot be any cancellation sought of the two other

sessions. We find absolutely no reason to interfere with the

decision of the Commission and we reject the writ petitions.

24. Before parting with the cases, we have to deal

with the objection raised against the Public Interest Litigation

filed. As has been held by the Hon'ble Supreme Court in

Fertilizer Corporation Kamgar Union (Regd.), Sindri and

others v. Union of India and others; (1981) 1 SCC 568, on

Public Interest Litigations "If a citizen is no more than a

wayfarer or officious intervener without any interest or concern

beyond what belongs to any one of the 660 million people of

this country, the door of the court will not be ajar for him" (sic).

25. In the present case, we find that the petitioner in

the Public Interest Litigation has absolutely no cause of action

since she is not a candidate in the examination. Her averments

in the writ petition are that, she is a social activist, has neither

personal interest nor personal gain nor private motive or oblique

reason in filing the writ petition. But for this there is nothing Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

stated as to any request made by candidates in the examination

or even her righteousness having been awakened by the

agitation resulting in police action; which was stated before us,

by the learned counsel, on a specific query put by us, to him.

The petitioner also avers in Paragraph 17 that she knew from the

news and media that the 4th respondent, the Chairman, had

visited the examination center at Motihari and inspected it and

the officials of the Economic Offences Unit also carried out an

inspection; which is quite natural in the wake of the allegations

regarding the malpractice occurred in the examination. In fact,

the writ petitions filed by the individual candidates were kept

pending only because of the Public Interest Litigation. We

sought for instructions from the party, through the learned

counsel, as to whether she would like to pursue the matter,

especially since the question is alive before the learned Single

Judge having roster, who could consider it. The petitioner,

however, adamantly pushed for her Public Interest Litigation to

be considered. We found that the allegations are not sustainable

and in the totality of the circumstances, we find that the

petitioner was not agitating a Public Interest and was merely

agitating a 'publicity interest'; 'being an officious intervener,

wayfarer and busy body'. We hence dismiss the writ petitions on Patna High Court CWJC No.6034 of 2023 dt.26-09-2023

the reasoning stated above and the Public Interest Litigation,

also on the ground of abuse of process of Court with cost of Rs.

50,000/- (fifty thousand) imposed on the petitioner in the Public

Interest Litigation, payable to the Bihar State Legal Services

Authority, which shall be recovered by the Authority resorting

to procedure for recovery of arrears due on land revenue.

26. The writ petitions stand dismissed with cost

imposed only on one of the petitioners.

                                                                   (K. Vinod Chandran, CJ)

                      Partha Sarthy, J.         I agree.


Sunil/PKP                                                             (Partha Sarthy, J)
AFR/NAFR                AFR
CAV DATE                21.09.2023
Uploading Date          26.09.2023
Transmission Date