Telangana State Public Service ... vs B. Prashanth
2023 Latest Caselaw 2767 Tel

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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

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

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

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

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

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

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,

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

W.P. (Civil) No.1083/2021, dated 04.10.2021

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

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

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

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

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

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

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

(2020) 19 SCC 430

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

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

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

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

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

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

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