Bihar Public Service Commission & Anr
Vs. Vinoy Kumar Singh & Anr [2003] Insc 349 (4 August 2003)
M.
B. Shah & Dr. Ar. Lakshmanan. Dr. Ar. Lakshmanan, J.
This
appeal was filed by the Bihar Public Service Commission (hereinafter referred
to as "the Commission") against the judgment and order dated
05.12.1994 of the High Court of Judicature at Patna passed in Letters Patent
Appeal No. 147 of 1988 whereby a Division Bench allowed the said appeal of
respondent No.1/writ petitioner (Vinoy Kumar Singh) and consequently set aside
the judgment and order dated 28.08.1988 of the learned Single Judge of the High
Court dismissing the writ petition filed by the writ petitioner and came to the
conclusion that the authorities of the Commission are not authorized to take any
steps after publication of the result of the examination. The Court held that
it is not open to the Authorities of the Commission to issue a show-cause
notice and to take any action after the conclusion of the examination unless
there is any specific rule permitting the Authorities to do so. The Bench also
held that no action can be taken against the candidate for committing unfair
means committed by him in the course of the examination. Thus the High Court
came to the conclusion that in the absence of any rules or executive
instructions, the entire exercise of the Commission is vitiated by illegality
and procedural impropriety. The Division Bench further came to the conclusion
that the principles of natural justice have also not been properly observed inasmuch
as the respondent's request to inspect and examine the answer books of other
candidates and the specimen signature of the Invigilator thereon was denied.
The Division Bench finally came to the conclusion that the learned Single Judge
of the High Court had himself tried to form an opinion about the alleged
misconduct of the writ petitioner and hence the learned Single Judge has
committed an error of law.
In
view of the aforesaid conclusion and findings, the Division Bench set aside the
order dated 22.09.1986 of the Commission debarring respondent No.1/writ
petitioner from the examination and directed the Commission to treat the
candidate/writ petitioner as a successful candidate. However, it refrained from
giving any direction to the Commission for appointing the writ petitioner to
the post of Deputy Superintendent of Police or any other post as prayed for as
they felt that such a direction was beyond the scope of the writ petition.
In
order to appreciate the various contentions raised by the Commission in this
appeal, it is necessary to recite the facts in brief.
The
Commission invited applications in the prescribed proforma from eligible
graduate candidates for appearing in the 31st Combined Competitive Examination
conducted for filling up various Civil Posts. The written examination was to
commence w.e.f. 12.02.1983. Respondent No.1, being a graduate, applied for the
post of Deputy Superintendent of Police as also for Deputy Collector in the
prescribed proforma. The Commission after preliminary scrutiny and having found
respondent No.1 eligible, allotted him Roll No. 16306 and also issued him an
Admit Card in order to enable him to appear in the said written examination
which was to commence from 12.02.1983. Respondent No.1 was required to appear in
General Science, General Knowledge and General Hindi papers which were
compulsory subjects. The result of the successful candidates was announced and
published by the Commission and respondent No.1 was one of the successful
candidates. Respondent No.1, being successful in the written examination, was
called upon by the Commission to appear for an interview on 08.04.1985.
Accordingly,
respondent No.1 appeared in the viva voce test on 08.04.1985.
On
12.08.1985, respondent No.1 was called upon to show cause by 30.08.1985 as he
was accused of having committed unfair means in the General Knowledge Paper of
the 31st Combined Competitive Examination and which the Commission after due
consideration, had prima facie found correct.
"(A)
The main answer-sheet as also additional answer-sheets of General Knowledge
Paper contains forged signature of the Invigilator which is found corroborated
by a comparison of the signature of the Invigilator on the answer-sheets of
other candidates of that room/hall;
(B)
From a perusal of the answer-sheet, it appears that the entire answer-sheet is
based on materials smuggled from outside; and
(C) On
the main page of the answer-sheet, there are ink marks which is different ink
than one used in the answer-sheets.
It was
further stated that in case, his show-cause to the aforesaid charges is not
received by 30.8.85 through Registered Post, then it will be presumed that he
has nothing to say in the matter. "The final result was declared by the
Commission on 13.08.1985. To the show-cause notice, respondent No.1 submitted
his reply. The Commission, after considering the explanation to the show cause
of respondent No.1 and the other materials, vide order dated 22.09.1986 decided
to cancel the answer-sheet of the General Knowledge Paper of the said
examination. The Commission also decided that respondent No.1 will stand
debarred from the said examination.
Respondent
No.1, being aggrieved, filed a writ petition before the High Court. The learned
Single Judge of the High Court dismissed the same and came to the conclusion
that the charges do disclose use of unfair means and respondent No.1 correctly
understood the charges and furnished explanation therefor. The learned Single
Judge after perusing the answer- book of respondent No.1 and other candidates
and comparing the signature of the Invigilator came to the conclusion that they
do not tally and that the difference is glaring to the bare eyes. However, the
learned Single Judge came to the conclusion that the charge regarding use of
smuggled materials has not been proved in the absence of any material relied
upon or produced in the Court.
However,
in any event, the learned Single Judge held that the first charge levelled
against respondent No.1 stands established.
Being
aggrieved respondent No.1 filed Letters Patent Appeal No. 147 of 1988 before
the Division Bench of the High Court and the Division Bench vide its impugned
judgment allowed the same and as stated earlier, set aside the judgment and
order dated 28.08.1988 of the learned Single Judge and quashed the order dated
22.09.1986 of the Commission debarring the candidature of the first respondent
from the 31st Combined Competitive Examination and directed the Commission to
treat respondent No.1 as a successful candidate. The Division Bench came to the
conclusion that denial of inspection by the Commission of the specimen
signatures of the Invigilator in question and the answer-books of the other
candidates constitute a violation of the principles of natural justice. The
Division Bench also came to the conclusion that the Commission is not
authorized to take any steps after publication of the result of the
examination. The Division Bench also held that the application of the rules is
confined to cases where detection of unfair means is done in the course of
conducting of the examination in the examination hall and that there is no rule
or executive instruction which empowers the Commission to issue show-cause
notice after the result has been published of a successful candidate who has
been interviewed and asked to submit his option in connection with a
competitive examination. In conclusion, the Division Bench held that the entire
exercise by the Commission in purporting to cancel the first respondent's
examination in absence of any rule or executive instruction is vitiated by
illegality and procedural impropriety. The Division Bench relying on Rule 15A
of the Bihar Civil Services (Executive Branch) and the Bihar Junior Civil
Service (Recruitment) Rules, 1951 came to the conclusion that the Commission
being the constitutional functionaries have to act within the four corners of
the rules in the matter of conducting the examination and in publication of the
results and all other allied matters and that the authorities of the Commission
are not authorized to take any steps after publication of the result of the
examination.
Aggrieved
by the impugned judgment of the Division Bench, the above appeal has been filed
in this Court.
We
heard Dr. Rajeev Dhawan, learned senior counsel for the appellant -Commission
and Mr. M.N. Rao, learned senior counsel for respondent No.1.
Learned
senior counsel for the appellant took us through the pleadings and the
judgments rendered by the High Court and also all the Annexures and the rules.
According to the learned senior counsel for the appellant, the interpretation
put by the Division Bench will have devastating and startling effect if it is
to be held that the Commission has no power to take action against a candidate
who had committed unfair means in the examination after the conclusion of the
examination or beyond premises of the examination hall.
He
would further submit that the Division Bench has failed to appreciate that the
use of unfair means is not confined to copying or impersonating another
candidate or being impersonated by any other person or communicating with any
person for the purpose of getting help or for aiding any other candidate which
are necessarily to be in the examination hall and at the time of examination.
According to the learned senior counsel for the appellant, adoption of unfair
means need not be necessarily confined in the examination hall alone but will
include any unfair means adopted at any stage even after the conclusion of the
examination such as getting his original answer-sheets substituted or addition
or additional answer-sheets in collusion with the staff of the Commission which
necessarily shall be after the conclusion of the examination but shall
nevertheless be unfair means.
He
invited our attention to the statutory rule i.e. the Bihar Civil Services
(Executive Branch) and the Bihar Civil Services (Recruitment) Rules, 1951.
He
further submitted that the power of the Commission to conduct examinations is
conferred under Article 320 of the Constitution and, therefore, the power of
the Commission is not controlled by the limitations imposed, if any, by any
statutory provisions.
Dr.
Rajeev Dhawan further submitted that the Division Bench also failed to
appreciate that the learned Single Judge in order to satisfy himself had himself
seen the answer-sheet of respondent No.1 and compared the signatures of the
Invigilator thereon with other answer-sheets and the difference in the
signature of the Invigilator on the answer-sheet of respondent No.1 was so
glaring that it came to the conclusion that the present answer-books were not
at all written in the examination centre and this answer-book has been
subsequently substituted for the one written in the examination centre and in
that event, there will be no question of Invigilator's noticing the unfair
means at the time of using the same in the examination hall which is also
corroborated from the answers given which appears to be based on the smuggled
materials. Dr. Rajeev Dhawan drew our attention to the grounds of appeal in
Letters Patent Appeal No. 147 of 1988 filed in the Patna High Court by
respondent No.1 and pointed out that it was not the case of respondent No.1
that the learned Judges of the Division Bench had not undertaken the exercise
of perusal of the records by themselves as did by the learned Single Judge. A
perusal of the grounds of Letters Patent Appeal would show that respondent No.1
has not raised any grounds in that regard.
Per
contra Mr. M.N. Rao, learned senior counsel for respondent No.1 submitted that
the written examination was held on 12.02.1983 and the result was declared
after the efflux of two years on 08.03.1985 and that respondent No.1 was a
successful candidate and as a sequel to the publication of the result,
respondent No.1 was asked to appear in the oral interview on 08.04.1985 and the
respondent appeared for oral interview and gave his first choice for the post
of Deputy Superintendent of Police and second choice for the post of Deputy
Collector. He submitted that this sequence of events and lapse of over two
years from the date of examination is not consistent with the statement that
any complaint was made or was pending against the respondent as stated in paras
7 and 8 of the special leave petition. He submitted that on receipt of the
charge-sheet, respondent No.1 filed an application before the Special Executive
Officer of the Commission for allowing him to see certain records and to
furnish him specimen signatures of Invigilator but the access of these
documents was denied and no specimen signatures were furnished and, therefore,
the principles of natural justice were violated and adequate opportunity was
denied to the first respondent. He also denied that the answer-sheet was based
on material smuggled from outside. He also submitted that no adverse inference
can be drawn from the facts stated in the special leave petition that on the
main page of the answer- sheet there are ink marks which are in different ink
than the one used in the answer-sheets. According to the learned senior counsel
for the respondent, the interpretation by the Division Bench of the High Court
is consistent with the rules. He has further contended that respondent No.1 was
never charged for adopting unfair means in the General Knowledge paper and,
therefore, the impugned order is bad. He has further contended that after
publication of the result of the written test, two years after the examination
was held showing respondent No.1 was a successful candidate, the Commission was
not justified in rejecting the answer papers of the General Knowledge. Mr. Rao
relied upon a decision of this Court in the case of Haryana Urban Development
Authority and Another vs. Roochira Ceramics and Another (1996) 6 SCC 584 (page
586 para 4) and submitted that the power under Article 226 is the power of judicial
review and that the High Court can only examine the procedural correctness and
cannot go into the merits of the controversy like an appellate authority. He
also relied on a judgment of this Court in the case of Sterling Computers
Limited vs. M/s M & N Publications Limited and Others etc. (1993) 1 SCC 445
at 458 and submitted that while exercising the power of judicial review, the
Court is concerned primarily as to whether there has been any infirmity in the
"decision making process" and by way of judicial review the Court
cannot examine the details of the terms of the contract which have been entered
into by the public bodies or the State and that the Court have inherent
limitations on the scope of any such enquiry.
We
have perused the records. In our opinion, the argument advanced by the learned
counsel for the appellant merits acceptance. We are of the opinion that the
Commission has jurisdiction to find out malpractices. In the instant case, the
Chief Examiner reported to the Commission about the adoption of unfair means by
the writ petitioner, respondent No.1 in the General Knowledge Paper. Therefore,
the Commission vide its memo No. 56 dated 12.08.1985 called upon respondent
No.1 to show cause by 30.08.1985 as he was accused of having committed unfair
means in the General Knowledge paper. It is also seen from the records that the
Commission on 13.08.1985 published and declared the final result of the
examination and a request thereafter was made by respondent No.1 to the Special
Executive Officer of the Commission requesting to allow him to see the
answer-sheets of the other candidates who were appearing along with him in the
said hall as also the specimen signatures of the Invigilators who were
invigilating the said examination in the said hall. Accordingly, on 15.08.1985,
respondent No.1 was allowed to see his answer-book of the General Knowledge
paper. The Commission, after considering the explanation offered by respondent
No.1 and other materials, vide memo No. 109 dated 22.09.1986 decided to cancel
the answer-sheet of the General Knowledge Paper of respondent No.1 of the said
examination and also decided further to debar him from the said examination. It
is also seen from the judgment and order of the learned Single Judge that the
answer-books of the first respondent in General Knowledge along with few other
answer-books of other candidates were produced for inspection of the Court
during the course of hearing and that on 23.05.1988, after perusal of the
answer-books, an order was recorded to the effect that some droppage of ink was
found on the cover page of the answer- book and that the signature of the
invigilator on the main answer book and the additional answer papers appears to
be of one Mr. R.P. Sao and that the answer book number of other candidates,
namely, 66452, 66453, 66454, 66455 and 66456 have been produced to show that
the signature of Mr. R.P. Sao on those answer books are wholly different than
R.P. Sao's signature on the answer-book of respondent No.1 and they do not
appear to tally with those found in the answer-books of other candidates. The
learned Single Judge has also rejected the explanation of respondent No.1
offered in this regard. The learned Judge has clearly found that the principal
answer book and the additional answer book contain the signature of Mr. R.P.
Sao but Mr. R.P. Sao's signature on the answer books of the other candidates
who were sitting in the same room is wholly different and, therefore, it is
crystal clear that the present answer book was not at all written in the
examination centre and that the answer book had been subsequently substituted
for the one written in the examination centre and in that event there would be
no question of the invigilators noticing the use of unfair means at the time of
using the same in the examination hall. In this background of facts, we are of
the opinion that the decision of the Commission in cancelling the answer paper
of respondent No.1 and the reasoning given by the learned Single Judge in this
regard cannot at all be faulted with. In our view, it is true that there is
some delay in issuing the show-cause notice. The delay also, in our opinion,
cannot at all be faulted with. Things which may go unnoticed at one point of
time may be noticed subsequently and the same delay in noticing the
contumacious act at a later stage cannot at all be termed as illegal. The
Commission is entrusted with the task of conducting examinations for the very
many public services under the State and the Commission is conducting
examinations and interviews for lakhs and lakhs of people every year. While
undertaking this process, the delay may occur due to various unavoidable
reasons and at the same time this Court cannot close its eyes for the actions
initiated by the Commission of the grave charges levelled against respondent
No.1 herein though belatedly. Respondent No.1 was given ample opportunity to
submit his explanation and the Commission after considering the entire
materials decided to cancel the answer-sheet of the General Knowledge Paper of
the said examination and also to debar respondent No.1 from the said
examination.
Rule
15 A of the Bihar Civil Services (Executive Branch) and Bihar Junior Civil
Service (Recruitment) Rules, 1951 is set out below:
"15A.
If any candidate is found guilty of –
(i) resorting
to any irregular or improper means for obtaining admission to the examination;
or
(ii)
impersonating another candidate or being impersonated by any person at the
written or viva voce examination; or
(iii) submitting
fabricated document or documents which have been tampered with; or
(iv) making
statements which are incorrect or false; or suppressing material information;
or
(v) communication
with any person for the purpose of getting help or for aiding any other
candidate; or
(vi) using
any other unfair means in the examination hall; or
(vii) unruly
behaviour in the examination hall or violating any instruction issued by the
Commission; he may be expelled from the examination hall by the Commission or
by any person authorised by them in this behalf.
In
such cases, the Commission may also invalidate his answer books or deduct such
marks as they consider fit and in addition to rendering himself liable to
criminal prosecution, the candidate may be debarred either permanently or for a
specified period –
(a) by
the Commission from admission to any examination or appearance at any interview
held by the Commission for selection of candidates; and
(b) by
the State Government from employment under Government."
It is
clear from the perusal of the said rule that the Commission is entitled to
initiate action against any candidate if the candidate is found guilty of
resorting to any irregular or improper means for obtaining admission to the
examination or using any other unfair means in the examination hall (clause vi)
if any candidate is found guilty he may be expelled from the examination hall
or the Commission may also invalidate his answer-books or may debar the said
candidate either permanently or for a specified period. The Division Bench in
their judgment while interpreting the above rule has observed that there was no
allegation against respondent No.1 of adoption of any unfair means in the
course of examination and the Commission after two years of publication of the
result initiated action against respondent No.1. The interpretation given by
the Division Bench of the rule is not correct. Clause (iii) of the Rules
specifically provides that if a candidate is found guilty of submitting
fabricated document or documents, which have been tampered with or as provided
in Clause (vi) found to have used any other unfair means in the examination
hall, he can be dealt with appropriately under the Rules.
A
perusal of the show cause notice issued to respondent No.1 in Memo No.
56/P.S.C./C.C.E. dated 12.08.1985 clearly go to show that the charge against
respondent No. 1 was for adoption of unfair means in the 31st Combined
Competitive Examination. We have already extracted the charges against
respondent No.1. By issuing the said show-cause notice an opportunity was given
to respondent No.1 to offer his explanation with regard to the charges. The
proceedings dated 22.09.1986 (annexure-2) clearly reveal that the explanation
offered by respondent No.1 dated 15.04.1986 with regard to the charges had been
considered in detail by the Commission and the Commission after due
consideration has decided to cancel the answer- sheet of the General Knowledge
Paper and also decided to treat respondent No.1 as debarred from the said
examination. The Authorities of the Commission have, in our opinion, acted
within the four corners of the rules, regulations and executive instructions.
They have adhered to the rule of law.
The
Division Bench has characterized the entire exercise by the Commission in cancelling
the respondent's examination as vitiated by illegality and procedural
impropriety. We are unable to appreciate the above observation made by the
Division Bench. In our opinion, the Courts can certainly examine whether the
decision making process was reasonable, rationale and not arbitrary on the
facts and circumstances in each case. There has been no infirmity in the
decision making process by the Commission. We, therefore, hold that the
impugned action initiated by the Commission in cancelling the examination of
respondent No.1 and debarring him is well-founded and calls for no
interference. The grievance of respondent No.1 that he was not allowed to see
the answer-books of other candidates in the concerned subject nor the specimen
signature of the Invigilators of that centre were produced before the Court are
shown to the first respondent. In this regard, respondent No.1 has miserably
failed to request the Division Bench to see the answer- books by themselves and
also permit him to peruse the same. Such a request made by Mr. M.N. Rao before
us at this distance of time cannot at all be countenanced.
The
appeal filed by the Commission stands allowed and the order of the Division
Bench is set aside. However, there will be no order as to costs.
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