Ranjay Kumar Sharma & Ors vs Bihar Staff Selection Commission

The writ applications have been filed by the petitioners who apprehended cancellation of their candidature in the process of selection under advertisement number 06060114, being the first Intermediate Level Combined Competitive Examination for appointment of inter-level posts. The writ petition was filed for a declaration that cancellation of their candidature is illegal; and for consequential directions upon the respondent-Commission to declare the petitioners as genuine and successful candidates in the process of selection.

The admitted position is that the petitioners emerged successful in the preliminary test and, therefore, were allowed to appear in the main examination followed by counselling, on being successful in the main examination; and physical test/typing/shorthand/measurement for certain posts.

It is also not in dispute that the Commission followed a procedure to prevent impersonation in the process of selection. The same involved biometric fingerprint and screening of the candidates at the time of entry into the examination hall for taking the preliminary test and the main examination. This biometric data was preserved.

On 04.12.2021, the Commission notified the list of 14410 candidates successful in the main examination. Instructions were issued to the candidates for counselling on 07.12.2021. It was specifically mentioned that the candidates appearing for counselling would be subjected to biometric fingerprint verification, from the biometric data of the candidate/s taken and preserved at the time of preliminary test and main examination. Only those candidates, whose biometric data matches, were to be allowed for counselling/verification of their certificates. It was also categorically provided that appropriate action would be taken against candidates in whose cases there is a mismatch between the biometric data at the time of counselling with that which had been preserved at the earlier stages.

At the time of counselling, biometric mismatch occurred with the biometrics of 187 candidates, including the petitioners. Therefore, they were prevented from participating in verification of their certificates. The authorities also lodged a criminal case bearing S.K Puri P.S Case No. 352 of 2021 under section 419/420 I.P.C read with Section 10 of the Bihar Examination Act against these 187 candidates, including the petitioners

This is the background in which the petitioners have approached this Court by filing the instant writ proceedings.

In CWJC No. 2548 of 2022, this Court on 05.04.2022 directed the Commission to communicate the decision of cancellation of the petitioners’ candidature. In compliance thereto, the Commission issued an order dated 13.04.2022, from which it is clear that the petitioners’ candidature has not been cancelled yet. Their candidature has been made subject to the result of investigation in S.K Puri P.S Case No. 352 of 2021.

The petitioners, thereafter, have brought on record a later notice dated 27.06.2022 whereby two of the candidates were provisionally selected, even though they were also accused in S.K. Puri P.S Case No. 352 of 2021 and their names figured along with the petitioners in the earlier order dated 13.04.2022.

In view of this development, the counsels representing the petitioners in the three cases have unanimously confined their relief to claiming parity with the two candidates who are beneficiaries of order dated 27.06.2022, reserving their right to legal remedy in respect of the allegations pending in the criminal case/s.

The petitioners allege discrimination against the Commission for provisionally selecting 2 out of 187 candidates who are also facing criminal prosecution for biometric mismatch at the time of counselling, in S.K Puri P.S Case No. 352 of 2021; and at the same time, keeping the candidature of remaining 185 candidates including petitioners, subject to result of investigation in the criminal prosecution.

The petitioners’ counsels have submitted that biometric mismatch in case of the petitioners is nothing but a bona fide technical glitch. It is submitted that a biometric mismatch may have occurred due to various other circumstances. The biometric mismatch is not because the petitioners have resorted to any impersonation. It is highly improbable and perverse to think that the petitioners, knowing well that they shall be subjected to biometric verification at the stage of counselling, would go for counselling in place of someone else. It is equally impossible that if the petitioners had used someone to appear for them at the preliminary test or main examination, then they would go themselves for counselling knowing well that they were going to be subjected to biometric verification at the time of counselling.

They have also placed on record various print-outs of the mismatch report to demonstrate that biometric mismatch occurring is either due to technological glitch or because the officer/authority who was recording the biometric data has committed some errors at the time of recording. It is emphatically submitted that the petitioners are bona fide candidates. They have proven their mettle by qualifying in preliminary test and main examination, and therefore the allegation at the stage of counselling is clearly unsustainable in fact as well as in law. It is also submitted that in 2nd Graduate Level Combined Examination under advertisement number 07070114 conducted by the same Commission, they had made provisional recommendation in favour of some candidates who were made accused in a criminal case, subject to final outcome of the investigation in Agam Kuan P.S. Case No. 44 of 2017.

The learned counsel for the Commission, however, submits that in terms of the instructions contained in the notice dated 07.12.2021 inviting candidates, petitioners have no right to claim for being allowed to participate in counselling and get their certificates verified.

Insofar as the two candidates who are beneficiaries of provisional selection under important notice dated 27.06.2022, the Commission has come out with an explanation that after biometric mismatch occurred, all 187 candidates, including the petitioners were subjected to a second biometric verification on the date of counselling itself. In the second biometric verification, biometric mismatch was not reported for two candidates. Accordingly, a second biometric report was generated for these two persons and it was considered appropriate to allow them for counselling and their result was provisionally published under notice dated 27.06.2022. The remaining candidates did not succeed in second biometric verification process. Therefore, no report was generated for the remaining candidates.

This Court gave an opportunity to the counsel for the Commission to verify weather report of the petitioners’ second verification process on the date of counselling for the remaining candidates, including the petitioners had been kept digitally stored so that the petitioners could examine the same. The answer after instructions from respondent-Commission is in the negative.

The Commission has acknowledged the fact that the first verification on the date of counselling was incorrect, but only for the two candidates, and has accepted the second verification. It is under such circumstance that those two candidates have been provisionally selected by the Commission by publishing an “Important Notice” dated 27.06.2022, which reads as follows:

It is also an admitted position that these two persons continue to be accused in the criminal proceedings arising out of S.K Puri P.S Case No. 352 of 2021. Even otherwise it is an admitted position that at present the petitioners’ biometric mismatch is only at the stage of first information report.

This Court would, therefore, conclude that keeping the petitioners’ candidature subject to result of the criminal investigation, while allowing two other similarly situated as the petitioners to be provisionally selected vide order dated 27.06.2022 is unsustainable. The only ground on which the Commission proposes to sustain keeping of petitioners’ candidature subject to result of the criminal investigation, is the fact that their second biometric verification on the date of counselling also failed. Such assertion of the respondent-Commission, however, is not supported by any preserved biometric data showing the result of the second verification process. Whereas in the case of the two candidates who have been provisionally selected, second verification reports in their favour have been preserved.

This Court does not appreciate such an approach adopted by the respondent-Commission. If the second verification process undertaken on the date of counselling was with a purpose to re-verify the biometrics, the respondent-Commission was required to preserve the report of the second verification process of all 187 candidates, including petitioners, digitally or by taking print-outs to ensure transparency in the process of second biometric verification.

Unfortunately, that has not been done. The Commission thus has failed to maintain transparency in the second biometric verification process on the date of counselling. It would have been a different matter had the Commission brought the report of the second verification of all the candidates showing that all, but two candidates, have failed in the second biometric verification. Otherwise, there is no basis to support the Commission’s stand that the petitioners are not similarly situated and, not entitled to equal treatment in the selection process, with the two candidates who are beneficiaries of the important notice dated 27.06.2022.

This Court is thus inclined to treat the petitioners similarly situated as the other two candidates who have been provisionally selected. There is no distinction based on any verifiable material between the two candidates who are beneficiary of important notice dated 27.06.2022, and the instant petitioners. Decision of the respondents is not based on any intelligible differentia between the petitioners and the two candidates provisionally selected. Also no purpose would be served by treating the petitioners differently and deny them provisional recommendation, subject to same terms and conditions as contained in important notice dated 27.06.2022.

Petitioners are thus entitled to be treated similarly and be provisionally recommended, subject to result of the criminal case. The authorities should issue orders in favor of the petitioners, similar to order dated 27.06.2022 issued in respect of the other two candidates, provisionally recommending the petitioners.

The writ petitions stand allowed.