Asib Hussain vs The Union Territory Of Jammu And Kashmir & Ors.

The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -

The applicant has filed the present Original Application questioning the selection and appointment to the posts of Fireman/Fireman Driver in the Fire and Emergency Services Department, J&K, pursuant to Advertisement Notice No. 01 of 2013 dated 12.03.2013. The principal challenge is directed against the written examination conducted on 20.09.2020, the resultant select list dated 03.10.2020 and Order No. 823 of 2020 dated 04.10.2020, whereby appointments were accorded to the selected candidates.

The case of the applicant, in brief, is that pursuant to Advertisement Notice No. 01 of 2013, applications were invited for filling up the posts of Fireman and Fireman Driver. Being eligible, the applicant submitted his candidature for the post of Fireman and participated in the selection process.

The recruitment process has had a chequered history. The selection initially undertaken pursuant to the advertisement could not attain finality on account of certain discrepancies noticed during the process. The Government terminated the recruitment process, which action came to be challenged before the Hon'ble High Court of Jammu & Kashmir. Vide judgment dated 02.11.2017, the Hon'ble High Court interfered with the termination of the advertisement notices and left it open to the competent authority to undertake the process of selection afresh from the first phase.

Thereafter, a de novo recruitment process was undertaken through a Transparent Recruitment Process. Candidates were subjected to the Physical Standard Test/Physical Endurance Test and the successful candidates were called for the written examination held in December, 2018. The said examination was also questioned before the Hon'ble High Court on allegations of mass copying and other irregularities. Pursuant to the directions of the Hon'ble High Court, the matter was examined by the competent authority and, vide Government Order No. 880-Home of 2019 dated 01.08.2019, the written examination was cancelled and a fresh written examination was ordered.

The fresh examination, after being rescheduled, was ultimately conducted on 20.09.2020. The result/select list was declared on 03.10.2020 and Order No. 823 of 2020 dated 04.10.2020 was thereafter issued according sanction to the temporary appointment of the selected candidates.

The principal grievance of the applicant is that the written examination dated 20.09.2020 did not constitute a fair and transparent selection exercise. According to him, though the examination was scheduled to commence at 11:00 a.m., the question paper and its answers had allegedly become available and were circulating through WhatsApp before commencement of the examination. In support thereof, reliance has been placed upon screenshots purportedly showing circulation of the question paper prior to the scheduled examination.

The applicant has further sought to question the selection on the basis of the number of candidates belonging to District Budgam who found place in the Open Merit selection list. According to the applicant, the unusually high number of selected candidates from the said district, when considered along with the alleged circulation of the question paper, raises a serious doubt regarding the sanctity of the examination.

The applicant has also referred to the substantial difference between the cut-off marks for the posts of Fireman and Fireman Driver despite a common written examination having been conducted. Another circumstance relied upon is the speed with which the appointments were made after declaration of the result. It is contended that the select list was issued on 03.10.2020 and Order No. 823 of 2020 was issued on the very next day, i.e. 04.10.2020, which was a Sunday/public holiday. On the strength of these circumstances, the applicant seeks setting aside of the selection and a direction to the respondents to conduct the examination afresh.

The respondents have resisted the Original Application. They submit that the allegations regarding leakage of the question paper are wholly unsubstantiated and that elaborate safeguards were adopted to maintain confidentiality and transparency. According to them, the examination was conducted simultaneously at various centres at Jammu, Srinagar and Kargil under the supervision of the respective Chief Superintendents. The examination centres were under CCTV surveillance and the question papers were kept in sealed, tamper-evident packets and opened at the centres in the presence of independent witnesses.

As regards the WhatsApp screenshots relied upon by the applicant, the stand of the respondents is that such material surfaced only after declaration of the select list. According to them, enquiry through available technical means revealed that the date and time reflected on such screenshots were capable of being manipulated/morphed through an Android application. The respondents, therefore, deny that the screenshots constitute reliable evidence of leakage of the question paper before commencement of the examination.

The respondents have also disputed the allegation concerning District Budgam. They submit that 893 candidates belonging to Budgam appeared in the examination, out of whom 125 candidates were selected, resulting in a selection percentage of approximately 14%. According to them, several other districts had a higher selection percentage and, therefore, the mere absolute number of candidates selected from Budgam cannot lead to an inference of manipulation or favouritism. This very argument regarding Budgam was considered in O.A. No. 61/901/2020, where the Tribunal found that the statistics furnished by the respondents did not support the allegation of corrupt practice and that the inference of paper leakage merely because candidates from Budgam had secured high marks was too far-fetched.

In relation to the difference in cut-off marks between Fireman and Fireman Driver, the respondents submit that the two are separate posts having different pools of eligible candidates. For Fireman Driver, possession of the requisite HGV driving licence was an additional condition. Only 145 candidates became eligible after the driving test and 144 participated in the re-examination, whereas 6,488 candidates appeared for the post of Fireman. The difference in the degree of competition, according to the respondents, adequately explains the variation in cut-off marks. The same explanation was accepted by this Tribunal in O.A. No. 61/1229/2020.

The respondents have further pleaded that the recruitment process was conducted transparently and on merit and that no illegality can be inferred merely because the appointment order was issued immediately after publication of the select list. They have also taken the plea that the applicant, after having participated in the selection process with knowledge of the criteria, cannot challenge the same merely because he did not find place in the select list.

We have heard learned counsel for the parties and have carefully gone through the pleadings and material placed on record.

The question which essentially falls for consideration is whether the allegations raised by the applicant disclose such illegality, fraud or widespread malpractice in the examination held on 20.09.2020 as would justify setting aside the entire selection process and appointments made pursuant thereto.

At the outset, we find that the controversy raised in the present Original Application is not res integra. The very same recruitment process has already been subjected to judicial scrutiny by this Tribunal in O.A. No. 61/901/2020, Sahil Sharma & Ors. v. UT of J&K & Ors. and O.A. No. 61/1229/2020, Imran Mehraj & Ors. v. UT of J&K & Ors., both pronounced on 10.11.2021. O.A. No. 61/901/2020 itself related to the selection of Fireman/Fireman Driver pursuant to Advertisement Notice No. 01 of 2013 and sought quashing of Order No. 823 of 2020 as well as declaration of the written examination dated 20.09.2020 as null and void on allegations that the question paper had become available in the public domain before the examination.

Similarly, in O.A. No. 61/1229/2020, the applicants had sought quashing of the same selection list arising out of Advertisement Notice No. 01 of 2013, quashing of Order No. 823 of 2020 dated 04.10.2020 and a direction to re-conduct the written examination on the allegation that the question paper had been leaked before commencement of the examination. Thus, not merely the recruitment process but even the principal foundation of challenge in those proceedings was substantially identical to the challenge raised before us.

The allegation regarding circulation of the question paper through WhatsApp before commencement of the examination was specifically examined in O.A. No. 61/1229/2020. The respondents therein had explained that the Facebook/WhatsApp material surfaced after declaration of the select list and that, upon enquiry, the date and time reflected in the screenshots were found capable of manipulation through an Android application. The Tribunal considered the rival contentions on the alleged pre-examination leakage while adjudicating the matter.

The allegation relating to the larger number of candidates selected from District Budgam also stands examined. In O.A. No. 61/901/2020, after considering the district-wise statistics, this Tribunal observed that Budgam had the largest number of candidates appearing in the selection process and that 125 candidates were selected from the said district. The statistics furnished by the respondents had remained unrebutted and were held insufficient to establish that the selection process was riddled with corrupt practices.

We find no reason to arrive at a different conclusion in the present case. A statistical circumstance, without reliable material establishing its nexus with manipulation of the examination, cannot by itself constitute proof of malpractice. Selection of a larger absolute number of candidates from a particular district assumes little significance unless the number of candidates who participated from that district and their comparative performance are also taken into consideration.

The challenge based upon different cut-off marks for Fireman and Fireman Driver is equally untenable. The material demonstrates that the two posts constituted separate categories and the pool of eligible candidates for Fireman Driver was significantly smaller because of the additional driving licence requirement. In O.A. No. 61/1229/2020, this Tribunal specifically accepted the explanation that 144 candidates participated in the re-examination for Fireman Driver whereas 6,488 candidates appeared for Fireman and that the different degree of competition naturally resulted in different cut-offs.

To the extent the applicant questions the selection criteria, that issue too stands answered. In O.A. No. 61/1229/2020, this Tribunal noticed that although the original advertisement contemplated a different distribution of marks, the revised criteria comprising PET and a 100-mark objective/OMR written examination had been introduced and publicised much prior to the written examination. The candidates participated in the examination with knowledge thereof. The Tribunal consequently rejected the challenge raised after participation in the selection process.

It is well settled in the context of challenges to large-scale recruitment that cancellation of an entire selection process is an extreme consequence. Mere suspicion, conjecture or isolated irregularity cannot furnish sufficient basis for invalidating the candidature and selection of a large number of persons who have participated in the process. There must be cogent material showing that the illegality was of such magnitude and was so pervasive that it destroyed the credibility of the selection process as a whole and that it is not reasonably possible to separate the tainted from the untainted.

The earlier decision of this Tribunal concerning the same recruitment is particularly significant in this regard. In O.A. No. 61/901/2020, after considering the material relating to the recruitment process, the Tribunal found no material demonstrating such deficiency or flaw in the examination as would warrant cancellation of the entire exercise. It was further observed that even assuming some flaws to be correct, it had not been established that the irregularities were all-pervasive and beyond correction so as to justify scrapping the entire recruitment process.

We are conscious of the fact that an earlier decision concerning the same recruitment process would not prevent interference if the applicant were able to place before the Tribunal some new, cogent and reliable material demonstrating an illegality which had escaped consideration in the earlier proceedings. However, no such distinguishing material has been brought to our notice in the present case. The allegations regarding WhatsApp circulation of the question paper, candidates from Budgam, variation in cut-off marks and the manner in which the selection was finalised substantially reproduce the very grounds already examined by the Tribunal.

The circumstance that Order No. 823 of 2020 was issued on 04.10.2020 immediately after declaration of the select list also does not, by itself, establish fraud or manipulation. Administrative expedition cannot be equated with illegality unless some statutory requirement is shown to have been violated or the haste is supported by other reliable evidence demonstrating mala fides. No such material has been placed before us.

The Court/Tribunal, while exercising the power of judicial review over a recruitment process, is concerned with the legality and fairness of the decision-making process. It cannot annul a completed selection merely on the basis of suspicion or possibilities. Where allegations of fraud, manipulation or leakage are made, they must be supported by material of sufficient probative value, particularly when acceptance of such allegations would result in displacement of a large number of selected candidates.

In the present case, the applicant seeks cancellation of an entire recruitment exercise and consequential appointments. Such a drastic relief necessarily requires correspondingly strong material. The WhatsApp screenshots relied upon by the applicant, particularly in the face of the respondents' specific stand regarding their authenticity and the consideration of the same allegation in the earlier proceedings, cannot by themselves constitute sufficient material for recording a finding that the question paper was leaked before the examination and that the entire examination stood compromised.

There is yet another important consideration. Judicial discipline and consistency require that substantially identical disputes arising out of the same selection process should ordinarily receive the same treatment unless a material distinguishing feature is demonstrated. Two Benches dealing with the same recruitment process cannot arrive at contradictory conclusions on identical allegations merely because the challenge has been brought by different unsuccessful candidates. The earlier decisions of this Tribunal have examined the validity of the very examination and the very selection which are sought to be reopened in the present proceedings.

We, therefore, find that the applicant has failed to make out any distinguishing factual or legal circumstance which would justify taking a view different from the one already taken by this Tribunal in O.A. No. 61/901/2020 and O.A. No. 61/1229/2020. The challenge raised in the present Original Application is substantially covered by the aforesaid decisions.

Before parting with the matter, we deem it appropriate to observe that recruitment to public posts must not only be fair and transparent but must also inspire confidence amongst the participating candidates. Although, for the reasons recorded hereinabove, the material placed before us is insufficient to establish that the examination in question stood vitiated by leakage of the question paper or any other all-pervasive malpractice, the allegations regarding circulation of purported question papers/answers through WhatsApp and other electronic platforms cannot be viewed lightly. With rapid advancement of technology and instant messaging platforms, the authorities conducting public examinations are required to adopt commensurately robust safeguards. We, therefore, direct the competent authorities to ensure that, in all future recruitment examinations, an effective and technologically secure mechanism is put in place for maintaining confidentiality of question papers, secured transmission and custody thereof, controlled access, adequate CCTV surveillance, digital audit trails and prompt examination of any complaint regarding leakage or electronic circulation of examination material. Appropriate preventive and remedial protocols shall also be evolved so that any such allegation can be immediately verified and, wherever wrongdoing is detected, responsibility may be fixed and action taken in accordance with law. These observations are made with a view to strengthening the integrity and credibility of future recruitment processes and shall not be construed as a finding that any leakage or malpractice stood proved in the present selection.

In view of the foregoing discussion, we are of the considered opinion that no case is made out for quashing the written examination conducted on 20.09.2020, the resultant select list dated 03.10.2020 or Order No. 823 of 2020 dated 04.10.2020. Consequently, no direction for holding a fresh written examination can be issued.

Accordingly, the Original Application is dismissed, being devoid of merit and also being substantially covered by the decisions of this Tribunal in O.A. No. 61/901/2020 and O.A. No. 61/1229/2020, both decided on 10.11.2021. The selection and appointments already made pursuant to the recruitment process shall remain undisturbed.

Pending M.A(s), if any, shall also stand disposed of.

There shall be no order as to costs.