HIGH COURT OF JAMMU & KASHMIR AND LADAKH
(AT JAMMU)
Reserved on: 18.08.2023
Pronounced on: 31.08.2023
Vinkal Sharma and others …. Petitioner/Appellant(s)
Through:- Mr. Rohit Matoo, Advocate.
Mr. Abhishek Gupta, Advocate.
V/s
UT of J&K and others …..Respondent(s)
Through:- Mr. Amit Gupta, AAG.
Mr. Abhinav Sharma, Sr. Advocate
with Mr. Sidhant Gupta, Advocate.
Mr. Pranav Kohli, Sr. Advocate with
Mr. Rahul Sharma, Advocate.
CORAM: HON’BLE MRS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
01. There can be no better prologue to this judgment than the words of George Orwell: "If you want to keep a secret, you must also hide it from yourself."
02. By this petition, the petitioners herein are seeking a fair process of recruitment with absolute secrecy, not only by the recruiting agency but also by the agency conducting the examination. They have raised this Orwellian concern about the alleged possibility of modern technologybeing misused and abused by respondent Nos. 2 and 3.
03. The petitioners, who are 40 in number and are aspirants, have responded to the advertisement for various examinations to be conducted by the Jammu and Kashmir Service Selection Board (hereinafter to be referred to as „JKSSB‟). The petitioners, during the pendency of the petition, have already participated in two examinations, i.e., Junior Engineer (Civil), Jal Shakti Department and Sub-Inspectors, Home Department. This Court has been called upon to examine the apprehensions with respect to the alleged abuse or misuse by respondent No. 2, i.e., M/s Aptech Limited.
04. The petitioners have called into question the contract given by respondent No. 1 in favour of respondent No. 2 pursuant to e-Tender Notice No. 19 of 2022 dated 30.09.2022, for the conduct of various examinations through online Computer Based Test (hereinafter to be referred to as „CBT‟)in favour of respondent No. 2 on the ground that respondent No. 2 has a tainted past record and has also been blacklisted once.
05. The petitioners have also challenged the contract given by respondent No. 1 in favour of respondent No. 3, pursuant to e-Tender Notice No. 20 of 2022 dated 17.10.2022, for selection of service provider for review/audit of examination process of CBT in favour of respondent No. 3.
Factual matrix:
06. In the year 2021, the tender was allotted by respondent No. 1 for conduct of its various examinations through CBT mode in favour of NSEIT Ltd. Company and after the complaints of various irregularities and malpractices were pointed out by the aspirants in the conduct of exam, the mode was shifted from CBT to Optimal Mark Recognition (OMR) mode. Accordingly, fresh tenders were floated for conduct of examinations based on OMR mode on 07.12.2021. The tender was allotted to MeritTrac Services Pvt. Ltd., overlooking the fact that it was already blacklisted.
07. The result of three examinations conducted by MeritTrac Services Pvt. Ltd., i.e., Junior Engineer(Civil), Jal Shakti Department, Sub-Inspectors, Home Department and Finance Account Assistant (FAA) were scrapped, owing to various malpractices, cheating and irregularities in which the CBI has already filed its charge-sheet.
08. The mode of examination was shifted from OMR to CBT and fresh e-Tender Notice No. 18 of 2022, dated 05.09.2022, was issued by respondent No. 1, for the conduct of examinations through CBT mode in which one of the conditions in affidavit was that the agency must not be previously blacklisted. The said condition of the affidavit is reproduced as under
“3. The firm has never been blacklisted in the past by any Govt./Private Institution of the country and there is no case pending in any Investigation agency.”
09. Later the corrigendum No. 01 dated 14.09.2022 was issued and this condition was changed to that the agency must not be blacklisted „as on date‟. The said amendment is reproduced below:
“9. At Annexure C-Affidavit (page No. 38), Condition no. 3 is recasted as "The Firm/ Agency is not involved in any ongoing investigation by any investigating agency related to conduct ofbCBT exams. Further, Firm/ Agency is not blacklisted/ debarred by any govt. Body/ Govt Institution/ Board/ PSU of the country as on date”.
10. The aspirants raised concern over the corrigendum issued and approached respondent No. 1, accordingly, the e-Tender Notice No. 18 of 2022 was cancelled and fresh e-Tender Notice No. 19 of 2022 dated 30.09.2022, was issued with the same condition as in Corrigendum No. 01 dated 14.09.2022. Condition No. 2.8 of the Evaluation Criteria of e-Tender No. 19 of 2022 being relevant is reproduced as under:
Affidavit- The agency must certify that –
1. It is not under a Declaration of Ineligibility for corrupt or fraudulent practices with any Government departments/agencies/ministries or PSU‟s and is not blacklisted by any government departments/agency/Ministries or PSU‟s.
2. If successful, the bidding agency will undertake assignment in accordance with the scope of work and provide a dedicated, well qualified team for the purpose.
3. All the documents enclosed are true and nothing has been fabricated.
11. The tender has been allotted to respondent No. 2, being the lowest bidder.
12. It is stated by the petitioners that M/s Aptech Ltd. has already been involved in various malpractices and irregularities and has been blacklisted by the Uttar Pradesh Power Corporation Limited (UPPCL). It is stated that after this, it was also involved in malpractices in the Rajasthan Police Constable Recruitment Exams, which were cancelled. Later, large-scale anomalies were also found in the exams of the Assam Irrigation Department and the Allahabad High Court paper leak of Assistant Review Officers and Review Officers. The examinations of the Delhi University LLB Course conducted by M/s Aptech Ltd. was also cancelled due to leak of examination papers and the said firm was imposed a fine of Rs. 10,00,000/- by the Delhi High Court.
13. The petitioners filed a representation on 04.11.2022 before respondent No. 1, stating irregularities and malpractices being conducted by respondent No. 2 in past and sought cancellation of the allotment of tender in favour of respondent No. 2. It is also stated by the petitioners that tender for audit of the CBT mode examinations has also been allotted in favour of a tainted agency, which was recently fined a $100 Million penalty for cheating on CPA Ethics Exams and for misleading the investigation.
14. It is stated that the nature of conducting public examinations requires secrecy and fairness, as the future of millions of aspirants depends upon the examination and if respondent No. 2 conducts the examination for respondent No. 1, then fairness in the selection process and anomalies cannot be ruled out. It is stated that the selection process to be initiated by respondent No. 1 is against the basic principles of fairness and equality. The conduct of public examinations by Government or any of its instrumentalities is a matter of trust and utmost faith and the aspirants cannot repose any confidence in a blacklisted agency for conducting a selection process.
15. Per contra, respondent No. 1 has raised a preliminary objection with respect to the locus standi of the petitioners. It is stated that the JKSSB is the prime recruiting agency in the Union Territory of Jammu and Kashmir and has been making constant efforts to improve the efficacy of the recruitment process by infusing technology-based interventions like CBT mode of examination, which is relatively more secure and transparent than the traditional OMR-based test. The CBT mode of examination reduces human involvement in the process, thereby decreasing the chances of paper leakage, as the cumbersome process of printing and transportation of examination material involved in OMR-based examination is eliminated. Major examination-conducting agencies like the Staff Selection Commission (SSC), Railway Recruitment Board (RRB), Institute of Banking Personnel Selection (IBPS), National Testing Agency (NTA) etc. have all shifted to CBT mode of examinations.
16. In view of the factum of the constitution of the Review Committee by the Government and keeping in view the fact that the said decision has neither been challenged by the petitioners nor by the aspirants, this Court deems it appropriate to dispose of the writ petition to a limited extent as indicated above by directing as under:
(i) The Review Committee constituted in terms of Government Order No. 487-JK (GAD) of 2023 dated 22.04.2023, shall submit its report within a period of ten days from the date of passing of this judgment.
(ii) The Chief Secretary shall take a decision on the basis of the report/recommendations made by the Review Committee within a period of ten days thereafter.
(iii) The decision of the Chief Secretary shall be communicated to the Secretary, JKSSB, who is directed to proceed strictly in accordance with the decision taken by the Government.
(iv) However, till the final decision is taken by the Government,
the JKSSB shall not proceed with the selection process.
17. Disposed of accordingly.
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