High Court · 2012

We have heard Mr B Pathak, learned counsel for the petitioners and Mr MK Choudhury, Senior Advocate assisted by Mr HK Das, Advocate for the respondents.

3. The factual background in its bare essentials would provide the setting. In the year 2008, the Railways issued the aforementioned Employment Notice for recruitment to Group-D posts under it. According to the petitioners, being eligi ble in terms thereof they offered their candidature and having been declared suc cessful in the Physical Efficiency Test (PET) conducted by the Railways, they a ppeared in the written examination held on 16.10.2011 in which in all 53,992 can didates participated. The examination was conducted in 140 centers spread over v arious towns within the territorial limits of the Railways including Katihar (Bi har), Siliguri, Alipurduar, Coochbehar (West Bengal), Rangia, Guwahati, Lumding, Tinsukia and Dibrugarh (Assam). The examination was a centralized procedure in which same questions were integrated in four sets nomenclatured differently so much so that the same questions were allotted varying serial numbers setwise and the answers thereto were to be provided in Optical Mark Reader Sheets by black ball point pens. According to the petitioners, they faired well in the examinati on and were confident to be declared successful in the same. However, after the written test was over, they came to learn of some agitation and media reports to the effect that there had been leakage of the question papers in course of the examination and that the concerned authorities of the Railways had assured to co nduct an enquiry into the same. However, as no remedial step as promised was tak en, the candidates including the petitioners approached this Court with Writ Pet itions being WP(C) Nos. 5506/2011, 5850/2011 and 6529/2011 questioning the valid ity of the examination process. Though initially these petitions were entertaine d and restraint orders in the interim qua the process were passed, eventually by order dated 5.1.2012 the petitions were closed with the observation that having regard to the issues raised the Hon’ble Central Administrative Tribunal, Gauhat i Bench, Guwahati had the exclusive jurisdiction under the Administrative Tribun als Act, 1985 to adjudicate the same. It was thereafter that the petitioners app roached the learned Tribunal with the Original Applications from which the judgm ent and order impugned herein has arisen.

4. As the pleaded case of the petitioners before the learned Tribunal is th e same, for the sake of brevity the essential pleadings would be culled out from the proceedings of Original Application No. 31/2012. The essence of the allega tions by the petitioners before the learned Tribunal which, according to them, h ad vitiated the written examination, is contained in Paragraph 4.7 thereof (Orig inal Application) which is extracted hereinbelow for ready reference: (cid:28) That applicants further came to know that the question booklets/ papers with a nswers have been leaked out before the written examination, also were in circula tion during the examination. Thereafter, the applicants came to know that one of such copy (photo copy) of said booklets/ papers has been found outside Rangia e xamination centre in Rangia. On inquiry it came to light that such test paper/ b ooklet was faxed to Rangia from a fax bearing number 0361-2489171 at 11.47 am on the very day of the examination i.e. 16.10.2011 at 11.47 am. It is pertinent to mention here that it was faxed during the examination hours itself for enabling some candidates to have undue advantage over others, as the examination was up to 12.30 pm and such candidates got ample time to fill up the OMR Sheet provided for recording the answers. From the code attached with the fax no. (i.e. 0361) it is clear that the fax was sent from Guwahati, that too, at a time when the ex amination was going on. It is learnt and reasonably believed that leakage of que stion & answer set was there in different places of the area covered under the j urisdiction of NF Railway and where the examination were going on. The question- answer set had reached some candidates before and also during the examination ho urs. (cid:29).

5. According to them, as in terms of the procedure adopted by the R ailways used and unused booklets were to be obligatorily accounted for and that none was allowed to be taken out of the examination hall, the circulation of the booklet faxed to Rangiya as above was an unimpeachable evidence of pilferage of the questions, thus, incurably invalidating the examination. They referred to d emonstrations by the candidates including blockade of railway track and the assu aging assurance of the Divisional Railway Manager, Rangiya Division to conduct a n enquiry into the alleged episode.

6. The Railways in their written statement in the original proceedi ngs while stoutly denying the allegations levelled by the petitioners vis-à-vis the written examination in toto assailed the maintainability of the challenge in ter alia on the ground of non-impleadment of the successful candidates in the ex amination as well as estoppel, the petitioners having voluntarily participated i n the written examination without any demur. According to the Railways, the writ ten examination was conducted on 16.10.2011 for filling up 3641 vacancies in Gro up-D posts in which 53,992 candidates were called to participate. They affirmed that the examination was eventually conducted on the same date in 140 centers as referred to by the petitioners. They also confirmed that the question papers we re in four series with the same questions assorted with different serial numbers , thus, ruling out the possibility of any malpractice during the examination. Wh ile stating that the Optimal Mark Reader process of evaluation of the answers wa s also a full proof mode to occlude the feasibility of any tampering in the proc ess, they asserted that the final evaluation was done through computerized high technological process to obviate the possibility of any manipulation and infirmi ty.

7. They averred that on the declaration of the results the petition ers were found to be unsuccessful having scored much below the minimum pass mark which was nowhere near the cut off marks in their respective categories. The an swering respondents elucidated in details about the deputation of the supervisor y staff of the Railways to oversee the conduct of the examination in all the cen ters and the steps taken by them to ensure full proof security to prevent any le akage of question papers. According to them, sealed boxes containing room wise packets of question papers were transported by the confidential agency in sealed container with tamper proof locks and handed over to the Overall Town in charge on 14.10.2011, whereafter, the sealed boxes were kept in the Cash & Pay office of the Town and under the security of RPF (Railways Protection Force) armed guar ds on 24 X 7 basis. They stated further that on the date of the examination i.e. 16.10.2011 the sealed boxes were handed over to the Centre Coordinators for fur ther transportation and distribution to the Railway Officer-in-Charge of the cen tre at the examination venues. According to them, all the examination in-charge were satisfied that the seals of the boxes were intact while receiving the same. They endorsed that the roomwise sealed packets were opened in the exam rooms i n presence of the candidates and due endorsement of the authorities concerned we re made to certify that those were opened in their presence. That necessary secu rity arrangements were made for smooth conduct of the examination on 16.10.2011 with adequate police/ security personnel at the centers was also stated. The ans wering respondents categorically denied the allegation that a question booklet/p aper along with the answers during the written examination was found outside one of the centers at Rangiya as alleged by the petitioners. According to them, all used question booklets along with the unused ones were collected after the exam ination and the total number thereof has been accounted for. That there was no r eport of any question booklet missing from any of the centers and, more particul arly, at Rangiya had been underlined.

8. According to the answering respondents, the Fax number from whic h the question booklet had been allegedly dispatched also did not belong to the Railways. Referring to the copy of the question booklet appended to the Original Application it was averred as well that it was not a Fax copy thereof. They exp lained that once the examination was over the question booklets were no more con fidential documents and the used as well as unused question booklets were therea fter simply collected back and accounted for and that it was not impossible for any person to make a copy of one of these after three months of the examination. That the copy of the question booklet appended to the Original Application was an incomplete one with first four pages thereof missing was pointed out to assai l the genuineness thereof and also the impossibility of correlating the same wit h the examination held on 16.10.2011 or any other competitive examination conduc ted by the Railways. The respondents asserted that on a cumulative consideration of a 9. ll above, the authorities decided against holding of any enquiry as the allegati ons were without any substance and that the preliminary inputs demonstrated in u nassailable terms that the examination had been conducted without any flaw whats oever. Extracts of some of the relevant contemporaneous records pertaining to op ening of the cartons containing the question papers in presence of the candidate s were also appended to the written statement. In their rejoinder the petitioners, however, reiterated and reaf 10. firmed the allegations as made in the Original Application. The learned Tribunal by the decision impugned negated the challenge to the validity of the written e xamination. In course of the adjudication it recapitulated from the pleadings th e stage-wise progress of the written examination in the following terms: (cid:28)The written examination was conducted as per schedule. There was no disturbance in the examination hall. The question papers were printed n 4(four) series by j umbling the sequence of questions so that candidates even seated in adjacent sea ts do not receive the same question. For example, question no.1 of 1st series ma y appear at Sl. No. 50 in the 2nd series, question no. 75 in the 3rd series may appear in Sl. No. 100 in the 4th series and so on. Said procedure was following to dilute the possibility of cheating in the examination as well as to safeguard the interest of the meritorious candidates and to maintain transparency. The an swers were to be recorded in OMR sheet having carbonless duplicate copies. The a nswers and other details like roll number, question booklet series etc. were dar kened by pen on original OMR sheets and the impression would automatically appea r on the duplicate sheets. Immediately after the examination, the original and d uplicate sheet were separated and sealed in separate sheets. The duplicate sheet s are available with the administration and can be verified with the original. T he final evaluation is done through computerized high technological process of s canning to dilute the possibility of any manipulation and infirmity. Every exami nation centre was allotted with one Railway officer to act as the Center in Char ge and other 3(three) Railway supervisory staff were also allotted to assist the Railway officer at the examination centre in all manner in addition to the usua l staff and teachers of the school/ college for conducting the examination. For every town, namely, Katihar, Silighri, Alipurduar, Coochbehar, Rangiya, Guwahati , Lumding, Tinsukia and Dibrugarh, one senior Railway Officer was nominated to a ct as the Overall Town-in-Charge and under it, there were several Railway office rs nominated to act as Town officers. One town officer was nominated for every g roup of 5-6 centers depending upon the distances & location of the centers. Furt her, Railway officers were nominated to act as Centre Coordinators-mainly to dis tribute question papers to the centers. One Centre Coordinator was nominated for a group of centers varying between 2 to 6 depending upon the distances and loca tions of the centers. (cid:29).

11. With reference to the copy of the question booklet annexed to t he Original Application, it recorded the observations of the Railways to the eff ect that it was an incomplete one and that it did not bear any fax number to sub stantiate the allegations as made by the petitioners. It also noted that the Ori ginal Application had been filed on 22.12.2011 and that by that time it was not difficult for one to obtain a xerox copy of the question booklet. It noted as we ll that no candidate was found guilty of cheating and that no untoward incident had been reported from any of the examination centers. That it was thus not feas ible to assume on the basis of the incomplete booklet that there was a leakage o f the question paper was recorded. Absence of details by the petitioners about t he question booklet allegedly found outside an examination hall was noticed as w ell. The learned Tribunal was of the view, having regard to the dictum incumbit probation qui dicit non qui negat, that the factum of leakage ought to be establ ished beyond any shadow of doubt to warrant cancellation of the examination. Tha t no cogent material was adduced in that regard was underlined. The learned Trib unal examined the records pertaining to the examination produced by the Railways and on a scrutiny thereof refused to adjudge the process relatable thereto to b e invalid contending that no interference was permissible on the basis of conjec tures and surmises.

12. Mr Pathak while reiterating the petitioners’ contention as above has also drawn our attention to a document stated to be containing the answers to the questions in the booklet found in circulation outside the examination hal l at Rangiya. In course of the arguments he also referred to another question bo oklet embodying answers inscribed by pencil. According to Mr Pathak, the Railway s though had assured the candidates, did not conduct any enquiry deliberately to cover up their lapses and the anomalies and, thus, made a mockery of a public p articipatory process warranting interference of this Court.

13. Mr Choudhury in reply urged that not only the imputation of lea kage of the question paper is unfounded, the same being omnibus, vague and beref t of supporting materials, the learned Tribunal was fully justified in rejecting the assailment of the written examination and that this Court in the exercise o f its writ jurisdiction would not interfere therewith. Referring to the records relating to the written examination, the learned senior counsel has maintained t hat it would be apparent therefrom that the written examination was also strictl y in conformity with the modalities fixed therefor and in absence of any complai nt from any quarter of any shortfall or lapses in the conduct thereof, no furthe r enquiry was construed to be essential. The learned senior counsel reiterated t hat the challenge is devoid of any merit and at this distant point of time the s election being long over, any interference would lead to irreconcilable disorien tations with consequential chaos.

14. We have carefully analysed the pleadings of the parties and the arguments advanced. We have examined as well the copy of the question booklet an nexed to the Original Application filed before the learned Tribunal and laid bef ore us. The facts pertaining to the norms prescribed for conduct of the written examination are not in dispute and, therefore, do not call for reiteration. A pl ain perusal of the copy of the question booklet allegedly found to be in circul ation outside the examination hall of one of the centers at Rangiya does not dis close any endorsement thereon to conclude that the same had been faxed on the d ate of the examination and in course thereof from the Fax number as referred to in the Original Application and in the writ petitions. Besides, the question boo klet is incomplete inasmuch as it starts from page No.5 and the first four pages thereof are missing. This document is also not a question booklet in the full form as admittedly, according to the petitioners, this pertains only to the Engl ish portion thereof. In absence of any better proof forthcoming from the petitio ners, at the first instance it is difficult to assume the premise that a complet e question booklet or any part thereof relating to the written examination was i n circulation outside the examination hall at Rangiya and, that too, during the examination hours.

15. Apart from the fact that the selection process was initiated in the year 2008 and has since been completed and appointments on the basis thereof made, the petitioners before this Court noticeably are not espousing a cause in a representative capacity. There is no material on record to repudiate the plea of absence of any allegation of cheating by any candidate or complaint of any m alpractice in any of the examination centers. The steps taken by the Railways fo r the conduct of the written examination and in particular to ensure the safety and security of the question papers as recited in their written statement are m atters of record and there being no overwhelming evidence to the contrary, cann ot be brushed aside as afterthoughts.

16. On being queried by us, Mr Pathak has admitted that no reference before the learned Tribunal had been made either in the pleadings of in course of the arguments of the document now laid before this Court and claimed to conta in answers to the questions in the offending booklet. He has admitted as well th at no allusion had also been made of the question booklet containing answers in pencil writing earlier. That these are improvements before this Court is obvious and in absence of pleadings in connection therewith before the learned Tribunal , we construe it inappropriate and inexpedient to take note thereof. Moreover, t hese cannot be reconciled with the imputation made in the original proceedings b efore the learned Tribunal, thus, in effect adversely impacting on the credibili ty and reliability of the case of the petitioners. The explanation provided by t he Railways of the possibility of a copy of the question booklet being available after the examination was over is also not implausible. The allegations as a wh ole are fleeting and omnibus. Having regard to the nature of the process underta ken and sought to be challenged, in absence of unimpeachable evidence in support of the anomalies impugned, interference therewith prompted by speculations and inferences is wholly uncalled for.

17. We have carefully perused the records laid before us and are sat isfied that the norms and prescriptions formulated by the Railways in connection with the written examination had been duly complied with. The records reveal th at before concluding against holding any further enquiry, the concerned authorit ies were satisfied from the inputs obtained, amongst others, from the examinatio n centers that no anomaly had either been noticed or reported and that the writt en examination had been conducted under the cautious vigil and surveillance of t he authorities without any hitch and/or complaint from any quarter.

18. On a cumulative consideration of all above and having regard to the constricted power of judicial review, we are of the unhesitant opinion that no interference with the impugned judgment and order is called for. The learned Tribunal having rejected the challenge on a careful consideration of all relevan t aspects, no intervention in the exercise of this Court’s power under Article 2 26 of the Constitution of India is warranted.

19. The petitions are dismissed. No costs.