Devashish Singh Lat wal - Pet it ioner v. Reser ve Bank of I ndia and Ot her s

Judgment

( p e r H o n ’ b l e Ju s t i ce Sr i M a n o j K u m a r Ti w a r i ) Reserve Bank I ndia issued Advert isem ent bearing No. 1A/ 2019- 20, invit ing applicat ions for appoint m ent as Officer Grade- B. However, t he select ion was held by t he I nst it ut e of Banking Personnel Select ion ( in short , “ I BPS” ) / respondent no. 3. Pet it ioner responded t o t he said Advert isem ent . The select ion process consist ed of Phase- I and Phase- I I exam inat ion, followed by int erview.

2. According t o pet it ioner, he qualified Phase- I exam inat ion, and he was perm it t ed t o appear in Phase- I I exam inat ion, which was held on 01.12.2019 at different not ified cent ers wit hin t he count ry. According t o him , he scored 212.75 m arks out of 300 in Phase- I I exam inat ion, which was m uch m ore t han t he m arks scored by t he last candidat e declared successful, yet he was not called for int erview. According t o him , aft er declarat ion result post- int erview, downloaded t he m ark- sheet from t he official websit e of 1 Reserve Bank of I ndia, and t he m arks scored by him in Phase- I I exam inat ion were t hen revealed t o him , and t hen he also cam e t o know t hat he was declared t o be ineligible for int erview. I t is furt her his case t hat he sent e- m ail t o respondent nos. 1 & 2 and in response t o t he said e- m ail, pet it ioner was inform ed vide order dat ed 11.11.2020 t hat I nst it ut e of Banking Personnel Select ion ( I BPS) t he out sourced exam inat ion conduct ing body, which checks t he possibility of candidat es using Unfair Means in t he exam inat ion, as part of well- est ablished post- exam processing using analyt ical t ools. He was furt her inform ed t hat during analysis of t he said exam inat ion, I BPS has report ed pet it ioner ’s nam e t o have been found resort ing t o Unfair Means. Thus feeling aggrieved, pet it ioner filed t his Writ Pet it ion, seeking t he following reliefs: - “ ( i) To issue a writ , or der or dir ect ion in t he nat ure of cert iorari for quashing t he phase- I I exam inat ion r esult dat ed 18.12.2019 ( Annexur e No. 4) and t he final result dat ed 19.10.2020 ( Annexure No. 5) issued by r espondent no. 2 in r espect of R.B.I . Grade- B ( DR) General- 2019 Exam inat ion as advert ised vide adv ert isem ent dat ed 20.09.2019, so far as t he nam e of t he pet it ioner is not included in bot h t he said result s and for quashing t he order dat ed 11.11.2020 ( Annexure No. 8) passed by respondent no. 1 w her eby t he repr esent at ion of t he pet it ioner has been rej ect ed. ( ii) To issue a writ , order or dir ect ion in t he nat ure of m andam us com m anding t he respondent s t o declar e t he pet it ioner qualified in t he phase- I I exam inat ion in respect of R.B.I . Grade- B ( DR) General- 2019 Exam inat ion as adv ert ised vide adv ert isem ent dat ed 20.09.2019 and t o direct t he r espondent s t o conduct an int erview of t he pet it ioner in pursuance of his perfor m ance in phase- I I exam inat ion in respect of t he afor esaid exam inat ion and t o t her eaft er declar e t he final result .”

3. Separat e count er affidavit s have been filed by Reserve Bank of I ndia and I BPS.

4. Reserve Bank of I ndia, in it s count er affidavit , st at ed t hat pet it ioner was found t o have used Unfair Means by t he out sourced exam inat ion conduct ing body by applying int ernat ionally used and accept ed form ula for det ect ing use of Unfair Means in t he obj ect ive t est s. I t was furt her st at ed t hat select ion process 2 concluded, and t he select ed candidat es have already j oined. The form ula applied by I BPS for det ect ing cases of Unfair Means is described in paragraph no. 11 of t he count er affidavit , filed by Reserve Bank of I ndia. Paragraph 11 of t he said count er affidavit is reproduced below: - t he t he abov e “ 11. That considerat ions while est ablishing a case for use of unfair m eans, t he I BPS considers t he following t wo im port ant crit eria: t hat cases based on I BPS cat egories A .

1. The pair of candidat es has 12 or m or e quest ions wit h ident ical wr ong answ er s in a t est ( i.e. I WW 12 or m or e) . 2.The num ber of quest ions wit h differ ent r esponses is sm all i.e. 5 or less in t he t est ( Mism at ches 5 or less) . The above crit eria leav e out som e candidat es w ho m ight have r esort ed t o unfair m eans but t hat m ay hav e v ery high score on t he t est ( s) . For exam ple, pair scoring 39 or above in a t est of 50 it em s will have 11 or less quest ions w rongly answered, in t his case I WW cannot exceed 11. I n order t o exam ine whet her high scoring candidat es have r esort ed t o unfair m eans, differ ent crit eria ar e used. These pairs of candidat es ar e picked up who have 90% or m ore or abov e quest ions ( 45 out of 50) wit h m at ching answers. This group is consider ed on t he following t wo crit eria; B. I WW

1. I WW 5 or m or e ( for 50 it em s t est ) ( Pr obabilit y; 0.00000095) 2. t est ) ( Probabilit y; 0.0000000037) . 3. Mism at ch 5 or less ( for 50 it em s t est ) 4. Mism at ch 7 or less ( for 75 it em s t est ) it em s m or e ( for 75 7 I t can be concluded t hat t he candidat es under crit eria ( A) have used unfair m eans beyond all r easonable doubt s. I t can be infer red based on t he v ery low pr obabilit y of such an ev ent occurring by chance wit h good degr ee of accur acy t hat t he candidat es under crit eria ( B) hav e r esort ed t o use of unfair m eans. A phot ocopy of t he r elevant part of Det ect ion of Use of Unfair Means/ Malpract ices in Obj ect iv e Test s is annexed as Annexur e No. CA- 3 t o t his affidavit .”

5. I BPS has filed it s count er affidavit and a supplem ent ary affidavit . I n t he supplem ent ary affidavit , it is st at ed t hat pet it ioner and one anot her candidat e, nam ely, Khaj an Chandra Tiwari were seat ed next t o each ot her and t here were t welve quest ions in Phase- I I exam inat ion, for which bot h of t hem had given ident ical wrong answers. I t furt her st at ed t hat I BPS cat egorizes t he cases depending on num ber of ident ical wrong answers and candidat es wit h t welve or m ore quest ions, wit h ident ical wrong answers, 3 Cat egory-A, which indicat es use of Unfair Means beyond all reasonable doubt s. Paragraph Nos. 5 t o 10 t he supplem ent ary affidavit filed by I BPS are reproduced below: - “ 5. That t he answering respondent no. 3, I BPS, has r eached t o t he conclusion of using unfair m eans by t he pet it ioner only on t he basis of analyzing his responses ( answers) on t he basis of form ula and m et hod adopt ed and applied by I BPS in r espect of all candidat es uniform ly who appear ed in t he said exam inat ion held online. Ther eupon, on analyzing t he responses ( answers) of individual candidat es t o det ect pat t ers of sim ilarit y of right and wrong answers and in t he analyt ical procedur e adopt ed by I BPS in t his regard, it was infer red/ concluded t hat t he r esponses of t he pet it ioner w er e shared and scor es obt ained cannot be said t o be genuine/ valid. t he pet it ioner wit h ot her

6. That I BPS has adopt ed a syst em at ic pr ocedur e for det ect ion of unfair m eans while analyzing pat t ers of sim ilarit y of right and wrong answers of t he candidat es. A brief nar rat ion of t he pr ocedur e for bet t er appreciat ion of t he case of t he answ ering r espondent in t his regard is given below: ( a) I BPS has sy st em bases capabilit y of ident ifying cases of use of unfair m eans bases on an int ernat ionally accept ed m et hod. The responses of each candidat e are com pared wit h t he responses of t he rem aining candidat es and m at ched for ident ical responses. The sy st em generat es r eport of all pairs of cases which have ident ical r esponses m ainly ident ical wr ong r esponses. This r eport is crit ically review ed by a high power com m it t ee appoint ed by I BPS. The com m it t ee consider s t he following in addit ion t o ident ical w rong answers while deciding on report ing unfair m eans and a final report is prepared only aft er t he com m it t ee r eviews t he ot her fact or s support ing t he analysis: - ( i) Evidence of any random / pat t er m arking; I dent ical m at ches of “ int erm it t ent ” and “ end” skipped ( ii) quest ions; ( iii) I t em s which ot herw ise show differ ent answ er across cent r e; The abov e m ent ioned m et hod of ident ifying t he use of unfair m eans is an int ernat ionally accept ed pract ice. ( b) While analyzing t he r esponses having alt er nat e choices of A, B, C, D and E wit h A as t he right answer, possible ident ical wr ong answ er s of t wo candidat es ar e BB, CC, DD, EE. For a pair of candidat e t o get anyone of t hese four ident ical wr ong answ ers, eit her BB or CC or DD or EE is 1/ 16 i.e. 0.0625 or ( 0.25) 2. This pr obabilit y becom es ( 0.25) 24 for 12 ident ical wr ong answers. For t he high m at ch group, since t he num ber of t he wr ong answer would be m uch lower, t he m et hod has been t uned t o det ect such cases which have 90% of higher m at ches wit h 5 ident ical wrong answers. This scient ific and t heor et ical m et hod, which is t im e t est ed and using by I BPS for last m or e t han 3 decades for det ect ion of use of unfair m eans, is applied in ev ery t est . That I BPS cat egorizes

7. t he above considerat ions while est ablishing a case for use of unfair m eans, I BPS consider s t he following t wo im port ant crit eria: t he cases bases on A . 1 . The pair of candidat es has 12 or m or e quest ions wit h i d e n t i c a l w r o n g a n s w e r s i n a t e st ( i.e. I W W 12 or m or e) . 2 . sm all i.e. 5 or less in t he t est ( Mism at ches 5 or less) . The num ber of quest ions wit h different r esponses is The above crit eria leav e out som e candidat es w ho m ight have r esort ed t o unfair m eans but t hat m ay hav e v ery high score on t he t est ( s) . For 4 exam ple, pair scoring 39 or above in a t est of 50 it em s will have 11 or less quest ions w rongly answered, in t his case I WW cannot exceed 11. I n order t o exam ine whet her high scoring candidat es have r esort ed t o unfair m eans, differ ent crit eria ar e used. These pairs of candidat es ar e picked up who have 90% or m ore or abov e quest ions ( 45 out of 50) wit h m at ching answers. This group is consider ed on t he following t wo crit eria; B. I WW 7 or m or e

1. I WW 5 or m or e ( for 50 it em s t est ) ( Pr obabilit y; 0.00000095) 2. ( Pr obabilit y; ( for 75 0.0000000037) 3. Mism at ch 5 or less ( for 50 it em s t est ) 4. Mism at ch 7 or less ( for 75 it em s t est ) it em s t est ) I t can be concluded t hat t he candidat es under crit eria ( A) have used unfair m eans beyond all r easonable doubt s. I t can be infer red bases on t he v ery low pr obabilit y of such an event occurring by chance wit h good degr ee of accur acy t hat t he candidat es under crit eria ( B) hav e r esort ed t o use of unfair m eans. C. I n addit ion t o adopt ing st at ist ical appr oach, following aspect s ar e also analyzed which proves t he use of Unfair m eans bey ond doubt : a) Seat ing ar rangem ent is seen. b) I t is also assessed if ot her candidat es ar e also det ect ed on t he sam e quest ions/ it em s. c) Analysis of whole ex am , it em s ( Quest ion) and it em analysis is also seen.

8. That it is relevant t o m ent ion t hat t he abov em ent ioned For m ula and m et hod for ident ify ing and inferring t he use of unfair m eans is of int ernat ional st andard and is perfect ly scient ific and has been adopt ed by ot her such Agencies conduct ing various On- line Exam inat ions eit her for t he purposes of r ecruit m ent s or as Academ ic Exam inat ions in Universit ies et c.

9. That since all m aj or com pet it ive Obj ect iv e- t ype exam inat ions are held on- line t hr oughout I ndia for t he purpose of recruit m ent in Govt . and Non- Govt . Organisat ions and also in t he Exam inat ions held by Universit ies et c., t her efor e, it has been not iced by all in t he Societ y t hat various candidat es have adopt ed various new m et hods wit h t he help of so m any lat est advanced elect ronic dev ices, t o do cheat ing and t he Exam inat ions and are using unfair m eans while answering t he quest ions On- line. t aking up

10. That I BPS concluded t hat t he Pet it ioner has resort ed t o unfair m eans on t he basis of below m ent ioned analysis: i. Ther e w ere t hr ee candidat es under t he unfair m eans analysis report which w er e in pair s of t w o as under: Sr . N o Pa i r 1 2 Devaahish Lat wal and Khaj an Chandra Tiwari Devashish Lat wal and Anm ol Kum ar Out of t hese only t he Pet it ioner had qualified as per t he cut - off scor es while t he ot her wer e non- qualified. ii. The pair in Sr. 1 of t he abov e t able was a ver y st r ong case and was report ed by I BPS as ‘Use of unfair m eans is est ablished beyond all r easonable doubt s.’

iii. Furt her, it was found t hat t he pet it ioner and Mr. Khaj an Chandra Tiwari as in Sr . No. 1 w ere not j ust sit t ing in t he sam e LAB/ room but also seat ed im m ediat ely beside each ot her ( Khaj an Chandra Tiwari) –Seat num ber 145 and Devashish 5 Lat wal Seat No. 146) as would be evident from seat ing pat t er. A copy of seat ing pat t er is being annex ed as Annexur e No. SCA- 1 t o t his supplem ent ary count er affidavit . iv. Addit ionally, as per t he unfair m eans analy sis r eport , t her e was no ot her pair which had I WW 12 or m or e and m ism at ches 6 or less. v. As a nat ur e pr ocess, I BPS also check ed t he analysis by split t ing t he t est in t w o part s i.e. Part I - t he first 35 quest ions car rying 2 m arks each and Part I I - t he rem aining 30 quest ions car rying 1 m ark each. Here t o t her e was no ot her pair in Part I wit h I WW 8 or m or e and m ism at ches 2 or less. The decision of suggest ing t he cancelling of candidat es of t he pet it ioner was t aken purely on t he abnorm al sim ilarit y of his responses wit h Mr . Khaj an Chandra Tiwari and t heir seat ing arrangem ent .”

6. Mr. Siddhart ha Sah, learned counsel appearing for I BPS/ respondent no. 3 subm it s t hat pet it ioner and one Mr. Khaj an Chandra Tiwari were sit t ing next t o each ot her, and t hey had given ident ical wrong answers t o as m any as t welve quest ions. He furt her subm it s t hat anot her candidat e, nam ely, Mr. Anm ol Kum ar, who was also sit t ing in t he sam e room , t he pet it ioner, had also given ident ical wrong answers, however, he concedes t hat such ident ical wrong answers were given only in respect of seven quest ions, which only creat es a doubt regarding use of Unfair Means, and it does not fall in Cat egory-A, which indicat es use of Unfair Means beyond all reasonable doubt s. He furt her subm it s t hat I BPS consist s of expert s, who have evolved a scient ifically proven m et hod of ident ifying cases of use of Unfair Means and t here was a st ipulat ion m ade in t he Advert isem ent t hat such m et hod would be applied for det ect ing cases of use of Unfair Means. Thus, he subm it s t hat it is not a case, where pet it ioner was t aken by surprise, by applying t he aforesaid m et hod and pet it ioner applying pursuant t o t he Advert isem ent , despit e t he said st ipulat ion m ade t herein, will be t aken as his consent 6 for use of t he aforesaid m et hod for det ect ion of cases of Unfair Means.

7. Mr. Arvind Vashist ha, learned Senior Advocat e appearing for t he pet it ioner subm it s t hat pet it ioner was not heard by I BPS, while form ing an opinion against him t hat he used Unfair Means in t he exam inat ion. He furt her subm it s t hat t he m et hod applied for det ect ion of cases of Unfair Means is not fool proof and such m et hod is not applied by any ot her Select ing Body. He furt her subm it s t hat m erely because t here are ident ical wrong answers t o t welve quest ions is not sufficient for form ing an opinion t hat a candidat e had used Unfair Means in t he exam inat ion, and it m ay also be a coincidence.

8. Per cont ra, Mr. Siddhart ha Sah, learned counsel I BPS/ respondent no. 3 subm it s t hat pet it ioner cannot t hese obj ect ions, aft er part icipat ing in t he select ion held pursuant t o t he Advert isem ent No. 1A/ 2019- 20, in which, it was clearly m ent ioned t hat t he aforesaid m et hodology will be used for det ect ion of cases of Unfair Means. He furt her subm it s t hat I BPS consist s of expert s and opinion of expert s cannot be subj ect ed t o j udicial review, especially in academ ic m at t ers.

9. We find subst ance in t he subm ission m ade by learned counsel for I BPS/ respondent no. 3. Every candidat e was inform ed by Reserve Bank of I ndia t hat a scient ific m et hod would be applied for det ect ing cases of use of Unfair Means. Pet it ioner responded t o t he Advert isem ent and part icipat ed t he select ion, t herefore, he cannot now t urn around and quest ion t he use of t he said m et hodology, when he is non- suit ed for 7 appoint m ent on t he ground t hat he used Unfair Means. Pet it ioner has not alleged m alice, or ill- will against any individual officer, t herefore, he cannot cont end t hat he was t arget ed for ext raneous reasons. The m et hodology for det ect ing use of Unfair Means was applied across t he board t o all candidat es, and pet it ioner was not t he only one t o be subj ect ed t o such scrut iny, t herefore, we do not find any scope for int erference.

10. Law is well set t led t hat in academ ic m at t ers, opinion of expert s has t o be respect ed. Since a soft ware was used for det ect ing cases of use of Unfair Means and by applying t he soft ware, an opinion was form ed by t he Select ing Body t hat it is a case of use of Unfair Means and pet it ioner ’s case fell in Cat egory-A, due t o sim ilarlit y of wrong answers t o t welve quest ions wit h Mr. Khaj an Chandra Tiwari, which signifies use of Unfair Means beyond all reasonable doubt as per t he form ula, t herefore, any int erference by us wit h t he select ion process would be unwarrant ed.

11. Accordingly, t he Writ Pet it ion ( S/ B) No. 1 of 2021, fails and is, hereby, dism issed. _______________________________ M A N OJ K UM A R TI W A RI , J. __________________________ A SH I SH N A I TH A N I , J. Dt : 13 t h May, 2025 Shiksha SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24 b5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542 D7FF0A9BED00E67B5283D205F18FE29BDF5DD 9, cn=SHIKSHA BINJOLA 8