SPA/55/2022
2022 Latest Caselaw 2944 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL
          HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                             AND
                HON'BLE SRI JUSTICE R.C. KHULBE

                      14TH SEPTEMBER, 2022
              SPECIAL APPEAL No. 55 OF 2022

Between:

Nitin.
                                                                 ...Appellant
and

State of Uttarakhand and others.
                                                           ...Respondents

Counsel for the appellant.          :   Mr. Bhupesh   Kandpal,    the   learned
                                        counsel.

Counsel for the respondent nos. 1   :   Mr. S.S. Chaudhary, the learned Brief
and 2.                                  Holder for the State of Uttarakhand.

Counsel for the respondent no. 3.   :   Mr. Pankaj    Purohit,    the   learned
                                        counsel.

JUDGMENT : (per Sri Vipin Sanghi, C.J.)

              The present Special Appeal, which has been

lying under office objections since April, 2022, has been

listed by the Registry on account of the defects not

being removed. We have heard the learned counsel for

the appellant on merits, while overlooking the office

objections, and we proceed to judgment.


2.            The present Special Appeal is directed against

the      common       judgment,         rendered      in   several       Writ

Petitions, by the learned Single Judge, including Writ

Petition (S/S) No. 940 of 2020 "Pawan Nath Goswami
 & others v. State of Uttarakhand & others". By the

impugned judgment dated 04.12.2020, the learned

Single Judge has dismissed the said Writ Petitions.


3.        The appellant before us was not a party to the

said Writ Petitions.   However, he claims that he is

similarly placed as some of the writ petitioners, whose

Writ Petitions have been dismissed by the impugned

judgment and, therefore, he has preferred the present

Special Appeal.


4.        One of the objections raised by the Registry is

that the appellant has not applied for leave to appeal

against the impugned judgment.


5.        The writ petitioners had preferred the said

Writ Petitions to assail the decision taken by the

respondent-authorities, in the light of the Office Order

dated 13.08.2019 passed by the Secretary (Power), as

well as the report dated 20.06.2018 submitted by a

Committee, to cancel the examination conducted by the

Uttarakhand Subordinate Service Selection Commission

(UKSSSC), in pursuance of the advertisement dated

21.09.2016, inviting applications to fill up the posts of

Junior Engineer (Electrical and Mechanical Group) in


                            2
 Power Transmission Corporation of Uttarakhand Limited

and Uttarakhand Power Corporation Limited, on finding

that   the   same   was   vitiated,   as   secrecy   of   the

examination process had been breached.


6.            The submission of the appellant is, and of

the writ petitioners was, that they were not, in any way,

involved in the irregularities, which were found.         The

irregularities were found only in respect of candidates of

one coaching institution, namely, Genius Education

Point, Malviya Nagar, Roorkee and, thus, the claim of

the appellant, like the writ petitioners, is that the

appellant should not be made to suffer, and the entire

examination should not be cancelled.



7.           A perusal of the impugned judgment shows

that the learned Single Judge took note of the sequence

of events, leading to the final decision to cancel the

entire examination. Issues with regard to the purity of

the examination process were raised before this Court in

earlier proceedings, pursuant to which enquiries were

conducted, firstly by a Committee headed by the

Additional District Magistrate (Finance and Revenue),

which submitted its report on 20.06.2018 to the District


                             3
 Magistrate, Haridwar, and, thereafter, by the Secretary

(Energy), State of Uttarakhand in compliance of the

judgment and order dated 25.03.2019 passed in Writ

Petition (S/S) No. 354 of 2018, "Jagdish Chand

Pandey and others v. State of Uttarakhand and

another".


8.          The learned Single Judge found that the

nature of the irregularities were such that it was not

possible to remove the chaff from the grain, as the

examination process itself was tainted at its very core.


9.          The submission of the learned counsel for the

appellant is that the enquiry conducted by the Additional

District Magistrate (Finance and Revenue) found the use

of Mobile Phones in the process of moderation, which

breached the secrecy of the examination process.

However, there is nothing to say that the said breach of

secrecy, in any way, impacted the complete result of the

examination, or that the petitioners were beneficiaries of

the same.


10.         We have heard the learned counsel for the

appellant, and perused the enquiry report prepared by

the Additional District Magistrate (Finance and Revenue)


                             4
 dated 20.06.2018.           The relevant portion of the same

reads as follows :-

          "bl    izdkj iz'uxr ekeys eaS ,d ckr Li"V :i ls tkap esa vkrh gS fd
          ds0,y0 iksfyVsfDud dkyst :M+dh ds 3 v/;kid isij lsaVj ds :i esa
          jgs gSa rFkk :M+dh fLFkr dksfpax laLFkku thfu;l IokbaV ds 66 vH;fFkZ;ksa
          esa ls 32 vH;FkhZ ds0,y0 iksfyVsfDud dkyst :M+dh ls gh i<+s gq, gSaA
          eksMjs'ku ds le; eksMjs'ku ds v/;kidksa }kjk eksckbZy dk iz;ksx
          eksMjs'ku dh 'kqfprk dks Hkh lafnX/k cukrk gSA"

11.       We have also perused the order passed by the

Secretary (Energy) dated 13.08.2019.


12.       Since the use of the Mobile Phones in the

process of moderation has been found to result in a leak,

and breach of secrecy, which could not be clearly

identified, and a clear instance of breach and secrecy

was brought before the Enquiry Committee in relation to

the aforesaid training institute - which could only be

treated as one instance of such breach, we are of the

view that the decision taken by the respondents to

cancel the entire examination process could not be said

to be arbitrary or irrational.                   The decision of the

Examining Body, in this regard, has to be respected,

unless a very clear case emerges, where candidates,

who may have benefitted from the irregularities, may be

segregated from those, who have not so benefitted, and

that too only in those cases, where the decision to

                                      5
 cancel the examination in its entirety may be put to

challenge on grounds of arbitrariness or irrationality.

However, in our view, that cannot be said to be the

position in the case in hand.


13.        We, therefore, do not find any merit in the

present Special Appeal and the same is, accordingly,

dismissed.


14.        In sequel thereto, pending application, if any,

also stands disposed of.


                                   ________________
                                    VIPIN SANGHI, C.J.


                                       _____________
                                        R.C. KHULBE, J.

Dt: 14th September, 2022 Rahul