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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 19TH DAY OF SEPTEMBER 2013

PRESENT

THE HON’BLE MR.JUSTICE N KUMAR

AND

THE HON’BLE MR.JUSTICE V.SURI APPA RAO

WRIT PETITION NOS.23839-23859/2010 (S-KAT)

BETWEEN:

1. Sunil Kumar P. S/o Puttaswamaiah, Aged about 26 years, Residing at No.117/B, East Colony, Railway Quarters, KGF Main Road, Bangarpet, Pin-563 114.

2. Chandra Shekar B.

S/o R.S. Byalanjanaiah, Aged about 24 years, Residing at No.23, 4th Block, Jarak Bande Police Quarters, Krishnananda Nagar, Nandini Layout, Bangalore – 560 096.

3. Hari Rao D. S/o Davendra Rao,

Aged about 25 years, Residing at No.22, 2nd Block, Jarak Bande Police Quarters, Krishnananda Nagar, Nandini Layout, Bangalore – 560 096.

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4. Ranganatha G S/o Govindappa S., Residing at C/o Chandru Mobile Agency, Post – Yermarus, Tq. Dist. Raichur – 584 134.

5. Krishnamurthy G.S. S/o Siddaramaiah,

Aged about 27 years, Residing at No.92, 4th Block, Kuvempu Sankeerna, KSRP Police Quarters, Koramangala, Bangalore – 560 034.

6. Madhu D. S/o Doddasiddaiah, Aged about 22 years, Residing at No.62, 1st Main, 3rd Cross,

Lakshmidevinagar, Nandini Layout Post, Bangalore – 560 096.

7. Chandra Shekar S/o Thukaram, Aged about 25 years, Residing at Bangla Tanda Post, Hoskera, Tq. Shahapur Dist., Gulbarga – 585 309. 8. Satish H.B. S/o H.N. Basavarajappa, Aged about 27 years, Residing at Halenahally 2, Halkurke Post, Tiptur Taluk, Tumkur District Pin-572 202. 9. Nagendra Kumar V.D. S/o Parthasarathi, Aged about 25 years, Residing at No.825, 1st Cross, 4th Main Road, BEML 3rd Stage, Raja Rajeshwari Nagar, Bangalore – 560 098.

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10. Chethan Kumar D.R. S/o Ramanna D.C. Aged about 23 years, Residing at Ramanna D.C. D.R. Goopal, Holalakere Post, Arasikere Taluk,

Hassan District – 573 126. 11. Santhosha H.V.

S/o Veerabhadrappa, Aged about 24 years, Residing at Veerabhadrappa M., Halkurike at Post, Tiptur Taluk, Tumkur District – 572 202.

12. Arakesha J. S/o Javrayagowda,

Aged about 24 years, Residing at Burudugunte Village, Nagamangala Taluk, Mannahalli Post, Mandya District – 576 432.

13. Shakshevali P.

S/o Nabisab, aged about 38 years, Residing at Kamapli Police Station, Kampli Post, Hospet Taluk, Bellary District-583 132.

14. Ravishankar A.M.

S/o Manjunath, Aged about 27 years, Residing at Belavadi, Belavadi Post, Chikmagalur District, Chikmagalur Taluk-577 146.

15. Lakshmikanth V.T.

S/o Thimmaiah S. Aged about 28 years, Residing at M.V. Hatti, Yalanadu Post,

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Huliyar HO, C.N. Halli Tq., Tumkur District – 572 218.

16. Govind S/o Gurunath,

Aged about 24 years, R/at Chamanal Tanda Post, Chamanal Shahapur Taluk, Gulbarga District.

17. Naveen Ganachari

S/o Shrishail, Aged about 25 years, Working in Govindpur Galli, Ward No.5, TQ. Mudhol Dist., Bagalkot – 587 313.

18. Harish Y.R. S/o Rajanna R.,

Aged about 25 years, Residing at No.42, Versova Layout, C.V. Raman Nagar, Bangalore – 560 093.

19. Sandeep Nayak S/o Amaresh, Aged about 26 years,

Working in : 8-11, 182/12, Panchamuki Colony, Raichur – 584 103.

20. Raghavendra N.

S/o Narayanappa T.R. Aged about 23 years, Residing at No.172, 4th Cross, Batawadi, Tumkur – 572 103.

21. Mallesha B.R. S/o Ramanayaka,

Aged about 26 years, Residing at Hosa Budanuru Village, Hale Budanuru Post, Mandya District-571 402. …PETITIONERS

(BY SRI. K. SUBBA RAO, SR. COUNSEL FOR

SRI. L. MAHESH, ADV.)

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AND: 1. The State of Karnataka,

Rep. by its Secretary, Home Department, Vidhana Soudha, Bangalore – 560 001.

2. The Deputy Inspector General of

Police (Training and Recruitment), Member Secretary, Police Sub Inspectors Recruitment Committee, Carlton House, Palace Road, Bangalore.

3. Sri. Narendra Babu M.R.

S/o K. Rajanna, Aged about 25 years, Resident of No.315, R.T. Nagar, II Block, Bangalore – 3.

4. Sri. Siddaraduha R. Badiger,

S/o Ramappa Badiger, Aged about 27 years, Resident at Post Belageri, Taluka Gokak, Post : Belgaum.

5. Sri. Manju B.P. S/o Puttasiddaiah,

Aged about 27 years, Bevoor Village and post, Channapatna Taluk, Ramanagara District.

6. Sri. Vikas S. S/o Shivanna M.K.

Aged about 23 years, No.10, Opp. Of Mini Vidhana Soudha, Kuvempu Nagar, Ramanagar – 571 511.

7. Sri. Manjegowda

S/o Shivalingegowda,

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Aged about 26 years, R/o 54, Soumya Layout, Dasarahalli, Bangalore.

8. Sri. Manjegowda H.G.

S/o Govindegowda, Aged about 26 years, Hulikere, Nuggehalli (Hobli), C.R. Patna Taluk, Hassan District – 573 131.

9. Srinivasa D.L. S/o Linganna D.V.

Aged about 32 years, No.140, 18th ‘A’ Main, Indiranagar, HAL II Stage, Bangalore – 560 008.

10. Sri. Shivaputrappa Tirakappa

Magod, Major, No.389, 2nd Floor, 7th Cross, Further Extension Viveknagar, Bangalore-560 047.

11. Sri. Annaiah K.T. S/o Thimmappa K.

Aged about 28 years, Kulenur Aralikatta Post, Channagiri Taluk, Davanagere District.

12. Sri. Annaiah M.R.

S/o Ramakrishnappa, Aged 27 years, Manjalanagar Village, Yedarur Post, Srinivasapur Taluk, Kolar District-563 138.

13. Sri. Naveen G.M. S/o Mallikarjun,

Aged about 25 years, No.54, 38th Main, J.P. Nagar, 6th Phase, Bangalore – 560 078.

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14. Sri. Ranikumar Dharmatti,

Aged about 26 years, R/o R.K. Hegde Nagar, Yamanur Block, Room No.69, Bangalore – 560 045.

15. Sri. Venkatesha B.S.

S/o Subbanna, Aged about 39 years, No.1/1, 2nd Cross, 2nd Main, Azadnagar, Chamarajpet, Bangalore – 560 078.

16. Sri. Ravi G.K. S/o Kalegowda,

Aged about 25 years, Gittahunase Village and post, Maralavadi Hobli, Kanakapura Taluk, Ramanagara District.

17. Sri. Doddappa J. S/o Beerappa,

Aged about 27 years, R/o Kadadinne, Taluka Manvi, District – Raichur.

18. Sri. Ananda H.M. S/o Madaiah,

Aged about 26 years, R/o Halehalli, Bekkalale Post, Koppa Hobli, Maddur Taluk, Mandya District.

19. Sri. Prakasha B.K. S/o Kenchappa,

Aged about 26 years, Bevinamaradadoddi Village, Alanatha Post, Kodihalli Hobli, Kanakapura Taluk, Ramanagara District-562 119.

20. Sri. S.B. Naveen Gowda

S/o Bettaramu Sathnur

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Village and Post, Mandya Taluk.

21. Sri. Anjan Kumar V.

S/o Venkatachalaiah C., Aged about 26 years, No.305, Behind St. Mary’s Convent, T. Dasarahalli, Bangalore – 560 057.

22. Sri. Suresh S. S/o Shivananjaiah,

Aged about 24 years, No.3759/6/1, 4th Main, D Block, Subramanya Nagar, Bangalore.

23. Sri. Mallikarjuna B.

S/o Basavarajappa, Aged about 27 years, Abbalagere Post, Shivamoga Taluk, District Shivamogga-577 225.

24. Sri. Ravikumar H.K.

S/o Krishnappa H.R. Aged about 25 years, R/o No.5/B, 2nd Main, BML Layout Vittal Nagar, Chamarajpet, Bangalore – 560 026.

25. Ravishankar

S/o N.S. Rao, Aged about 27 years, No.315, R.T. Nagar, 1st Block, Bangalore – 560 032. …RESPONDENTS

(BY SRI. V. LAKSHMINARAYANA, ADV. FOR C/R-4-8, 12,

13,16, 20, 21 & 25, SRI. H. KANTHARAJ, ADDL. ADVOCATE GENERAL FOR SMT. S. SUSHEELA, AGA

FOR C/R-2 AND FOR R-1, R-3, 9, 10, 11, 14, 15, 17, 18, 19, 22, 23 & 24 ARE SERVED)

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THESE WRIT PETITIONS ARE FILED UNDER

ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS, CDs BOTH PRODUCED BY THE PETITIONERS AND THE RESPONDENTS AND PERUSE THE SAME AND QUASH THE IMPUGNED ORDER DATED 16.7.2010 IN APPLICATION NOS. 5928 TO 2933, 5935 TO 5938, 5940 TO 5944, 5947, 5949, 5956, 5957, 5959-5960/2009 VIDE ANNEXURE ‘A’ PASSED BY THE KARNATAKA ADMINISTRTIVE TRIBUNAL, BANGALORE AS THE SAME IS CONTRARY TO THE LAW LAID DOWN BY APEX COURT; ETC. . THESE WRIT PETITIONS COMING ON FOR HEARING THIS DAY, N KUMAR J., MADE THE FOLLOWING:

O R D E R

These writ petitions are preferred against the

order passed by the Karnataka Administrative

Tribunal, which has declined to entertain the

applications filed by these petitioners who had sought

for re-examination pertaining to Question Paper No.2

in the examination conducted for the post of Police

Sub-Inspector (Civil).

2. Notification dated 10.06.2009 was issued calling

for applications for the post of Police Sub-Inspectors

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(Civil). The total number of posts to be filled was 400.

Out of which 40 posts reserved for women, 40 posts

reserved for in-service candidates and 320 posts was

earmarked for open category. In fact, examination to

be conducted for two papers. Paper 1 contains

essays, translation and duration is one and half

hours. Paper 2 is an objective test where both

questions and answers are given and the candidates

have to tick the correct answers. In fact, the

examination was scheduled to be held on 11.10.2009.

Because of leakage of question paper, the authorities

cancelled examination and it was re-scheduled on

15.11.2009. The examination was conducted in

seven centres through out the Karnataka. One such

centre was Gulbarga, where at four places the

examination was conducts. The examination for

paper 1 was between 10.00 A.M. and 11.30 A.M.

Paper 2 was between 3.00 p.m. and 4.30 p.m.

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3. It is not in dispute that on 15.11.2009 in the

centre at Poojya Doddappa Appa Engineering College,

Gulbarga, the examination was conducted in 40

rooms. In seven rooms instead of giving paper No.1,

Paper No.2 was given to the candidates. Realising the

mistake immediately question papers were taken

back. In the process there was a commotion. To see

that no injustice is done to candidates in those seven

rooms the examination of Paper No.1 was conducted

between 11.15 A.M. and 12.45 P.M. Thereafter,

Examination of Paper No.2 was conducted between

3.00 P.M. and 4.30 P.M. These irregularities was

broadcasted in TV9. It is also relevant to point out

the conduct of the examination in all centres through

out is videographed.

4. On coming to know of this leakage of second

paper these petitioners made a representation on

27.11.2009 pointing out to the Authorities the

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leakage of question paper and the consequent

disclosure of such information contained in the

question papers which has seriously affected their

interest and they sought for re-examination. The

request was not acceded to. Therefore, they filed an

application before the Karnataka Administrative

Tribunal on 14.12.2009 seeking for a direction to

conduct re-examination. The Tribunal after hearing

both the parties directed the authorities by an order

dated 16.12.2009 to consider the representations of

the applicants made on 27.11.2009 within two weeks

from the date of certified copy of the order of the

Tribunal. The said order of the Tribunal was

challenged by these petitioners before this Court in

W.P. Nos. 1721-1742/2010. Before the said writ

petitions were heard finally, in pursuance of the

direction issued by the Tribunal the Government

examined the representation and came to the

conclusion that the applicants’ allegations had no

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basis and therefore, they issued an endorsement

dated 01.01.2010 to that effect. Taking note of the

said endorsement, this Court allowed the aforesaid

writ petitions by its order dated 01.02.2010 remanded

the matter back to the Tribunal to consider the case

on merits. As the matter was sent back to the

Tribunal the endorsement issued by the Government

also came to be quashed. After such remand, the

Tribunal considered the grievance of the petitioners

on its merits.

5. The Tribunal framed the following Points for

consideration :

1) Whether the facts and circumstances show

that sanctity of the examination was

breached in this case ?

2) Whether the mistakes which occurred in

conducting the examination were so grave as

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to render the examination nullity or requiring

re-examination ?

6. In order to appreciate the aforesaid points, the

Tribunal called upon the 2nd respondent – The Deputy

Director General of Police (Training and Recruitment)

to display in the open Court the video recording of the

examination in the seven rooms to ascertain whether

there could have been any malpractices or any

opportunity of leakage of questions. The Tribunal has

recorded in the order what they have seen. After

viewing the video, the Tribunal came to the

conclusion that in the seven rooms a mistake has

occurred but it has recorded a definite conclusion

that there was no time for any candidate to go

through the questions in question Paper No.2, which

they could have communicated to anyone. In fact,

because of the persistent submission of the Counsel

for the petitioners, once again the video recording of

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two rooms in Block No.3 Room L-2 was viewed.

Therefore, they have recorded a finding that when the

cover was opened by the Invigilator, he detected the

mistake and without distributing the question papers

he has put them into the cover. A Police Officer came

to recover the packet. Only one bundle had been

opened that was along with other bundle returned. It

was in Block 3 Room L-2. In respect of Block 9 Civil

Block, video recording showed that after the cover

was opened, a Police Officer took back the cover

outside. Then after referring to the various

Judgments of the Apex Court, which was relied on, it

recorded a finding that there was no possibility of

candidates going through the question paper which

could have facilitated disclosure of the questions. The

assertion of the applicants and the affidavits filed by

them that for about twenty (20) minutes, question

paper No.2 was scanned by some of the candidates,

that some of them communicated the questions and

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possible answers by means of SMS and talk on

mobiles is unacceptable. Therefore, they recorded a

finding that there was any breach of sanctity of the

examination nor was there any valid ground to

presume that there was leakage of questions. On

Point No.2 recorded a finding that on the whole they

find that the lacuna in the examination conducted or

pointed out only shows some lapse on the part of the

examination machinery which in the present case we

find not intentional, but accidental. Such accidental

mistakes are not sufficient to cancel the examination

when the damage caused by such lapse does not

affect the validity of the examination and does not

affect the person who complained about it. By a

reasoned order, they declined to interfere with the

selection process and declined to pass orders for re-

examination. Aggrieved by the said order, these writ

petitions have been filed.

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7. Sri. K. Subba Rao, learned Senior Counsel

appearing for these petitioners, contends the law of

the point is well settled. The purpose of competitive

examination is to select the most suitable candidates

for appointment to public services. Therefore, if the

sanctity of the examination process is not maintained,

it vitiate the selection process and consequently it

would affect the public interest. When admittedly in

this case, there was a leakage of question paper No.2

and there is a possibility of the said information being

misused, the authorities ought to have ordered for re-

examination by cancelling the examination held in

respect of question paper No.2. He further submitted,

in a matter of this nature strict proof of pleadings and

evidence could not be insisted upon as in the nature

of things the applicants would not be able to furnish

all the particulars. The applicants immediately after

the examination have taken steps to air their

grievances. Therefore, the Tribunal was not justified

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in rejecting their claim on the ground that they did

not put forth their claim in terms of Clause 14(n) of

the Notification which has no application to the facts

of this case. In support of his contention, he also

relied on several judgments of the Apex Court and

sought, for cancellation of the examination and for a

direction for re-examination. The learned Counsel

appearing for the other petitioners adopted the said

arguments.

8. Per contra, the learned Additional Advocate

General Sri. Kantharaj appearing for the State

contended what transpired in seven rooms on

15.11.2009 in the Gulbarga Centre is not disputed.

But it is not a deliberate act, it is an accidental

mistake, which did not result in breach of the sanctity

of the examination. The arguments that the

candidate was permitted to take mobile inside and

through the mobile they sent SMS to others disclosing

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the contents of question Paper No.2 through out the

state is not substantiated by any acceptable evidence

and it is only an imaginary and therefore, he

submitted the Tribunal was justified in rejecting the

claim made by these petitioners.

9. Sri. V. Lakshminarayana, Learned Counsel

appearing for the successful candidates contended

that these petitioners participated in the selection

process they are estopped from challenging the

selection process. They approached the Court only

after coming to know that they were not selected and

therefore, they have no locus-standi to challenge the

selection. Even otherwise on merits, he contended so

called irregularity happened only in seven rooms in

Gulbarga Division, immediately the mistake is

rectified. These petitioners are not from the said

region at all. In no way their interest is affected by

this irregularity and therefore, no case for interference

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with the order passed by the Tribunal is made out.

He also submitted that there is no leakage at all.

10. In the light of the aforesaid facts and the rival

contention, the point that arise for our consideration

in these writ petitions is as under :

“Whether the admitted irregularities in

conducting the examination in seven halls

out of forty halls in one College at Gulbarga

is sufficient to cancel the examination

through out the State and order for re-

examination” ?

11. The material on record discloses that in one of

the Centres i.e., Gulbarga, examination was

conducted in Poojya Doddappa Appa Engineering

College. The examination was conducted in 40 rooms.

About 1000 candidates took the examination in that

College. In seven rooms of the said College,

immediately after the commencement of distribution

of question papers in the morning session, the

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question paper bundles contained question paper

no.2 and not question paper no.1. Immediately steps

were taken to retrieve the question papers which had

been distributed to some of the candidates. The

matter was reported. On instructions from the

higher-ups question paper no.1 was later distributed.

Taking into consideration the loss of time to those

candidates examination timing in those seven rooms

was rescheduled i.e., from 11.15 a.m. to 12.45 p.m.

The news spread out in the city that some of the

inmates had read questions in question paper No.2

which had been disclosed by them through messages

from mobiles. There was hue and cry and much

publicity was given on the Gulbarga Centre by the

T.V. including demonstration by some organization

protesting the bungling in the examination. The

authorities had made arrangements for video

recording of the examination in all the centres and

therefore in those seven rooms also video recording

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was available. When reliance is placed on the said

videos, the Tribunal asked the second respondent to

arrange for display in the open Court. It was done.

After watching the videos, the Tribunal has noted

down the following facts on viewing the said recorded

version:

(i) Block-1 AUD-1 Roll Nos.212001 to 212040: Answer sheets are distributed. Thereafter,

within a minute form the time the

invigilator begins to distribute question

papers, it is detected that the question

paper related to afternoon session.

Therefore, question paper are retrieved

immediately.

(ii) Block-03 L-2

Roll Nos.202081 to 212120:

Immediately at the time of distribution of

the question papers, it is detected by the

invigilator that it was question paper no.2.

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Therefore, the invigilator puts back

question papers into the cover.

(iii) L-6

Roll Nos.212241 to 212280:

After the distribution of question papers to

four persons, it is detected that it was

afternoon session question paper and

immediately question papers are retrieved.

(iv) Civil Block-09 I Floor Roll Nos.212321 to 212360: Recording does not show any distribution

of question papers. Only the cover

containing the question paper is taken

back.

(v) 09-B Roll Nos.212341 to 212360: Within a minute of commencing the

distribution of question papers it is

detected that it was question paper No.2.

Question papers distributed to about eight

to ten candidates are taken back.

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(vi) 10 PG Block Roll Nos.212361 to 212400: Question papers are not distributed. Infact

on detecting the mistake, it is being

assured that loss of time would me made

up by giving grace time to write answers.

(vii) Block-II Roll Nos.212401 to 212440: Within a minute from the commencement

of distribution of question papers, it is

detected that it is a paper of afternoon

session. After displaying that it is question

paper No.2, the invigilator collects back the

question papers already distributed and

puts them into the cover and seals it.

Candidates’ signature are taken.

12. In fact, before this Court also, an application is

filed requesting the Court to view the aforesaid videos.

The petitioners herein are not disputing what has

been set out by the Tribunal in its order after viewing

the recorded version. Therefore, we do not see any

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justification to accede to the request to view the

videos over again.

13. From what is recorded above, it is clear after the

question papers and the answer sheets were

distributed, within a minute the Invigilator noticed

that the question paper related to the afternoon

session. Therefore, the question papers were

retrieved immediately. The Invigilators put back the

question papers into the cover. In fact the question

papers were distributed only to a few of the

candidates and in some rooms question papers were

not even distributed. The Invigilators have put back

the question papers into the cover and sealed it. The

candidates’ signatures are also taken. This recording

clearly establishes that at 10.00 a.m. on 15.11.2009

in the seven rooms instead of distributing question

paper No.1, question paper No.2 was distributed and

immediately on realizing the mistake they were all

26

collected back and put in a cover. Thereafter the

candidates in those seven rooms were permitted to

answer question paper No.1 between 11.15 a.m. to

12.45 p.m. At this stage, it is relevant to notice none

of the candidates in the seven rooms have any

grievance whatsoever regarding this mistake

committed by the Invigilators nor the candidates who

are writing the examination in the remaining 33

rooms have any grievance.

14. In fact, in Gulbarga, examination was

conducted at four Colleges. None of the candidates

who wrote the examination in three Colleges also have

any grievance regarding this mistake. In order to

make sure that this mistake has effected any

candidates interest to its prejudice, to our query the

learned Government Advocate has made available the

records. The said record discloses the total candidates

who took the examination is 19,220. The total

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number of candidates who took the examination in

Gulbarga Centre in four Colleges is 2,506. The

number of candidates who took the examination in

the aforesaid Poojya Doddappa Appa Engineering

College is 1000. The number of candidates now

selected from Gulbarga Centre is hardly 63. The

number of candidates who are selected, who wrote

the examination in those seven rooms is only No.4.

Out of the 40 posts earmarked for in-service

candidates in the Gulbarga Division only four

candidates are selected. Out of them two are from the

candidates who wrote the examination in the

aforesaid College. It clearly demonstrates assuming

the above act to be construed as a leakage, it has

neither helped the candidates who wrote the

examination in the seven rooms or in the remaining

33 rooms in the said College or in all these 2506

candidates who took the examination in four Colleges

in Gulbarga. Therefore the allegation that the

28

candidates to whose hand the question paper has

been given went through the questions, sent SMS to

their friends to enable them to fare better and this is

a mischief which is done by the policemen to help the

in-service candidates and therefore the sanctity of the

examination has breached, is without any substance.

15. In this background, the Tribunal after viewing

the videos has categorically recorded a finding that

there was no time for any candidate to go through the

question in question paper No.2 which they could

have communicated to anyone. The said finding is

fully justified from the material evidence on record.

Further, it also recorded a finding that there was no

possibility of candidates going through the question

paper which could have facilitated disclosure of the

questions later and the assertion of the applicants

and the affidavits filed by them, that for about 20

minutes question paper No.2 was scanned by some of

29

the candidates, that some of them communicated the

questions and possible answers by means of SMS and

talked on mobiles is unacceptable. This finding is to

be viewed in the background of the aforesaid facts

that persons who saw the questions, who knew the

answers, who communicated to others could not pass

in the examination. The results speak for itself. The

Tribunal has fairly recorded a finding that there is a

lacunae in the conduct of the examination in these

seven rooms, but it was of the view that it only

showed some lapse on the part of the examination

machinery and it is not intentional but accidental.

Further, it held such accidental mistakes are not

sufficient to cancel the examination when the damage

caused by such lapse does not affect the validity of

the examination and does not affect the person who

complains about it. Therefore, we are of the view that

the said findings recorded by the Tribunal is based on

30

undisputed material on record and cannot be found

fault with.

16. Insofar as the law governing these aspects is

concerned, the Hon’ble Apex Court in the case of

Union of India and others Vs. Anand Kumar

Pandey and others reported in (1994) 5 SCC 663

has held :

“The purpose of a competitive examination is to

select the most suitable candidates for

appointment to public services. It is entirely

different than an examination held by a College

or University to award degrees to the candidates

appearing at the examination. Even if a

candidate is selected he may still be not

appointed for justifiable reason”.

17. In the said case the examination was conducted

by the Railway Ministry. After malpractices were

brought to their notice a decision was taken that 35

candidates of Centre No.115 be subjected to a fresh

written examination. It was further decided that

31

marks already obtained by them in the viva voce

examination would be taken into account. It was

further directed to complete the first examination

within a period of one and a half months. The said

decision was approved by the Minister-in-charge. It is

when that re-examination was challenged. The

Hon’ble Apex Court held the authorities rightly

refused to make appointments on the basis of the

written examination wherein unfair means are

adopted by the candidates.

18. In the case of Union Public Service

Commission Vs. Jagannath Mishra reported in

(2003) 9 SCC 237 approving the judgment of the

Apex Court in the case of Prem Parkash Kaluniya

Vs. Punjab University reported in (1973) 3 SCC 424

where there was copying it would be difficult to get

direct evidence and so long as an enquiry is held to be

fair and it affords the candidate adequate opportunity

32

to defend himself, the matter should not ordinarily be

examined by Courts with the same strictness as

applicable to criminal charges. It further held, where

the findings are based on probabilities and

circumstantial evidence, such findings cannot be said

to have been based on no evidence that was also a

case where the examination was cancelled and the

successful party was denied the employment and the

Hon’ble Apex Court declined to interfere with the

action taken by the authorities.

19. In the case of B. Ramanjini And Others Vs.

State of A.P. and Others reported in (2002) 5 SCC

533 , the Hon’ble Supreme Court held in the conduct

of the examination, a fair procedure has to be

adopted. Fair procedure would mean that the

candidates taking part in the examination must be

capable of competing with each other by fair means.

One cannot have an advantage either by copying or

33

by having a foreknowledge of the question paper or

otherwise. In such matters wide latitude should be

shown to the Government and the courts should not

unduly interfere with the action taken by the

Government which is in possession of the necessary

information and takes action upon the same. The

courts ought not to take the action lightly and

interfere with the same particularly when there was

some material for the Government to act one way or

the other.

20. Again the Apex Court in the case of Chairman,

All India Railway Recruitment Board and Another

Vs. K.Shyam Kumar and Others reported in (2010)

6 SCC 614 dealing with a case where the report of the

enquiring authority indicated that 100 to 200

candidates were suspected to have obtained answers

for the questions three hours before the examination

through some middlemen who had arranged the

34

answers by accepting huge bribe. Apart from the

serious allegations of impersonation in respect of 62

candidates it was stated on close scrutiny of the

answer sheets, at least six candidates had certainly

adopted unfair means to secure qualifying marks in

the written test. The report says that investigation

prima facie established leakage of question papers to

a sizable number of candidates for the examination

held on 23-11-2003. Further, it was also noticed that

leakage of question paper was preplanned and

widespread and the possibility of the involvement of

the Railway/RRB staff and also outsiders could not

be ruled out and hence, recommended that the

matter be referred to CBI.

21. In that context, the Hon’ble Apex Court held the

High Court was in error in holding that the materials

available relating to the leakage of question papers

were limited and had no reasonable nexus to the

35

alleged largescale irregularity. Even a minute leakage

of the question papers would be sufficient to besmear

the written test and to go for a re-test so as to achieve

the ultimate object of fair selection.

22. These are all cases where the authorities had

taken action either of cancelling the results of the

written examination on the proved malpractice or

they have cancelled the appointments made on the

basis of the results of such examination. The Apex

Court has consistently held these are matters for the

authorities to look into and once it is shown that the

authorities have acted in a fair manner, it is not for

the Courts to interfere with their action which is in

conformity with fair procedure and upset those

orders. Therefore, the role of the Courts is very much

limited and only the Courts can interfere when strong

grounds are established from the material on record.

36

23. The Apex Court in the case of East Coast

Railway and Another Vs. Mahadev Appa Rao and

Others reported in (2010) 7 SCC 678 held whether

the competent authority ought to have conducted an

enquiry into or verification of the allegations before

passing an order of cancellation is a matter that

would depend upon the facts and circumstances of

each case. It may often depend upon the nature,

source and credibility of material placed before the

authority. It may also depend upon whether all such

exercise is feasible having regard to the nature of

controversy, the constraints of time, effort and

expense. But what is absolutely essential is that the

authorities making order is alive to the material on

the basis of which it purports to take a decision. It

cannot act mechanically or under an impulse, for a

writ court judicially reviewing any such order cannot

countenance the exercise of power vested in a public

authority except after due and proper application of

37

mind. Any other view would amount to condoning a

fraud upon such power which the authority exercising

the same holds in trust only to be exercised for a

legitimate purpose and along settled principles of

administrative law. Sufficiency or otherwise of the

material and so also its admissibility to support a

decision the validity whereof is being judicially

reviewed may even otherwise depend upon the facts

and circumstances of each case. No hard-and-fast

rule can be formulated in that regard nor do we

propose to do so in this regard.

24. According to the Apex Court in the case of

Sadananda Halo And Others Vs. Momtaz Ali

Sheikh And Others reported in (2008) 4 SCC 619

appreciating the difficulties experienced by these

authorities who are conducting these competitive

examinations has held that it is settled law that in a

writ petition challenging these irregularities in

38

conducting examination a roving enquiry on the

factual aspect is not permissible while testing the

fairness of the selection process wherein thousands of

candidates were involved. The Hon’ble High Court

should have been slow in relying upon such

microscopic findings. It was not for the High Court to

place itself into the decision of a fact finding

commission, that too, more particularly at the

instance of the petitioners who are unsuccessful

candidates. The High Court should, therefore, have

restricted itself to the pleadings in the writ petition

and the say of the respondents. Unfortunately, the

High Court took upon itself the task of substituting

itself for the Selection Committee and also in the

process assumed the rule of an appellate tribunal

which was not proper. It was also observed that it is

also a settled position that the unsuccessful

candidates cannot turn back and assail the selection

process.

39

25. In the light of the aforesaid statement of law

declared by the Apex Court in those judgments, it is

clear the power of judicial review is very much

limited. When the authorities took note of the

irregularities malpractices and cancelled the

examination or the results of such examination, the

High Court or any judicial Tribunal should be very

slow to interfere with such decisions. Similarly, when

the authorities accepted the irregularities and

demonstrated that it is a bonafide mistake, accidental

and no malafide intentions or bad motives could be

attributed and in the process if no one is affected,

then the Court should be slow again to interfere with

the decisions of the authorities which are taken after

due consideration all aspects leading to the conduct

of the examination and the announcement of results.

When the candidates have not committed any mistake

or indulged in any malpractice such as mass copying

40

and by inadvertent mistake of a invigilator as in this

case instead of handing over question paper No.1

question paper No.2 was handed over and

immediately the mistake was realized and the

question papers were withdrawn and that too in

respect of hardly about few 100 candidates an

examination conducted for 19,200 candidates in

seven centres throughout the State of Karnataka

cannot be annulled. It would result in grave injustice

to those candidates, waste of public money and is

also against the public interest. As observed by the

Supreme Court, these are the petitioners who were

not successful in the examination, who are in no way

affected by these irregularities which is conducted in

some corner of the State and when the candidates

who took the examination from the Centre where this

irregularity was noticed, were not benefitted by this

irregularity, no malafides could be attributed to the

41

authorities and such an examination cannot be

cancelled.

26. In fact one of the arguments was this leakage

has resulted in inservice candidates getting good

marks and getting employment. As set out above, the

total number of posts is 400, 40 is reserved for

women only 40 is reserved for inservice candidates.

In Gulbarga where this irregularity happened only

four inservice candidates are selected and only two

in-service candidates are selected in the College

where this irregularity happened. These facts shows

there is no substance in the said allegation.

27. In that view of the matter, when the Tribunal

has taken pains to consider the entire material on

record and has taken trouble viewing the videos and

at the request of the counsel for the applicant again

viewing the video of two rooms and has meticulously

set out what they have seen in those videos and when

42

they have arrived at a finding based on that material

which is just and proper and supported by the legal

evidence on record, no fault could be found with the

said finding.

28. Under these circumstances, we do not see any

justification to interfere with the well-considered

order passed by the Tribunal. Accordingly the

appeals are dismissed. No costs.

Sd/- JUDGE Sd/- JUDGE RBV/JT/-