HC directs Govt to constitute high level Committee headed by not less than retired High Court Judge to enquire into conduct of JKSSB

STATE TIMES NEWS

JAMMU: Justice Wasim Sadiq Nargal of Jammu & Kashmir and Ladakh High Court in a landmark judgment directed Govt to constitute a high level Committee headed by not less than a retired High Court Judge to enquire into the conduct of Jammu and Kashmir Service Selection Board for the their brazen irregularities/illegalities in changing the terms/conditions of the tender, also as to what weighed with them to award a contract to conduct an examination by an organization which has previously facilitated malpractices in public examinations and accordingly appropriate action be initiated against those found guilty.
Justice Wasim Sadiq Nargal while allowing the petition, observed that the contract awarded by JKSSB in favour of M/s Aptech Limited pursuant to e-NIT No.19 of 2022 dated 30.09.2022 for conduct of its various examinations through computer based tests mode is quashed. Consequently, all the exams viz Junior Engineer-civil (Jal Shakti Department) and Sub Inspector (Home Department) held by respondent No.1 through respondent no. 2 in furtherance of the aforementioned “award of contract to conduct examinations” are also set aside/cancelled at whatever stage they are as on date.
Justice Wasim Sadiq Nargal also said that by its own act of omission and commission, the functioning of Jammu and Kashmir Service Selection Board does not inspire confidence in holding public examinations. It has become incumbent on all stake holders to review the functioning of the Board.
The writ petition has been filed on behalf of the petitioners Vinkal Sharma and others, who claim to be the aspirants, who have responded to the advertisement for various examinations to be conducted by the Jammu & Kashmir Services Selection Board (JKSSB) and the two such examinations are Junior Engineer (civil), Jal Shakti Department and Sub Inspector (Home Department) to which all the petitioners have responded to and applied. The petitioners are seeking direction to respondent No.1 not to conduct the examination through respondent No.2 (M/s Aptech Limited), blacklisted in the past, which contract was given to respondent No.2 and as per the petitioners, the examinations are tentatively scheduled to be conducted from 05.12.2022 to 20.12.2022. Petitioners further seek a direction to appoint some other agency, which is not previously blacklisted for conducting such examinations through Computer Based Test Mode (CBTM) involving public employment. According to the petitioners, prior to this, respondent No.1 has previously floated a tender for empanelment of agency for conduct of its various examinations through Optical Mark Recognition (OMR) mode exams vide e-NIT No.01 of 2021. In that tender, one ND Info Systems Private Limited was the successful bidder but respondent No.1 awarded the contract to one Merit Trac Services Pvt. Ltd. overlooking the fact that in pre-qualification evaluation for e-NIT No.01 of 2021, the Merit Trac Services Private Ltd. clearly and in unambiguous terms mentioned itself to be a blacklisted firm. The Merit Track Services Pvt. Ltd. conducted the examinations of Junior Engineer (Civil) (Jal Shakti Department) on 20.03.2022 and Sub Inspector (Home Department) on 29.03.2022 and also Finance Account Assistant exam. The malpractice occurred during the aforesaid examinations and the examination conducted by the said Merit Trac Services Pvt. Ltd. was compromised as papers were leaked, as a consequence of which these two examinations among others were scrapped by respondent No.1. It has been brought to the notice of the Court that the matter at presently is being investigated by the Central Bureau of Investigation (CBI) and recently the CBI has filed charge-sheet in these matters. The further case of the petitioners is that since the contract was given to a blacklisted agency, this was the precise reason that malpractices occurred and the matter at presently is being investigated by the CBI.
Justice Wasim Sadiq Nargal after hearing both the sides observed that there is no denying of the fact that JKSSB is a premier recruiting agency in the Union Territory of J&K having mandate of undertaking recruitment in a fair and transparent manner to the non-gazetted positions including Class-IV vacancies as referred to it by various government departments and has the power/authority to hold examination/interviews including skill tests wherever required for carrying out the recruitment to various posts. From the record, which has been produced by respondent No.1, it is apparent that the SSB is trying to make efforts to improve the efficacy of recruitment process by infusing technology-based interventions like CBT mode of examination which is more secure and transparent than the traditional OMR based tests. From the record, it is apparent that respondent No.1 has taken a decision on 10.08.2022 for authorizing the JKSSB to undertake end to end process including setting of question papers in computer bases test through authorized agency. Pursuant thereto, a meeting was held under the chairmanship of the Chief Secretary in which a decision was taken that the JKSSB shall conduct all the examinations through CBT mode only. The CBT mode of examinations reduced human involvement in the process thereby decreasing the chances of paper leakage as cumbersome process of printing and transportation of examination material involved in OMR bases examinations is eliminated.
High Court further said that major recruiting agencies like the Staff Selection Commission, Railway Recruitment Board have also switched to CBT mode of examination. From the record, it is apparent that in the note-sheet, the SSB has admitted that the recent developments, which has led to the cancellation of the examination for the post of Sub Inspector (Home Department and enquiry in the examination for Accounts Assistant (Finance) and Junior Engineer (Jal Shakti Department) has seriously dented the image and raised eye brow about the efficacy of the recruitment method adopted by the SSB and, accordingly, the SSB has taken a decision to have audit of the entire recruitment process as well as agencies involved in conduct of examinations for respondent No.1. The record further reveals that the SSB deliberated upon the issue and decided to discontinue the conduct of CBT examination through NSEIT Ltd in view of the subsequent developments leading to the cancellation of examination for the post of Sub Inspector (Home Department) and enquiry into the examination of Account Assistants (Finance) and Junior Engineer (Jal Shakti Department) and the decision of the Board was conveyed to the aforesaid agency NSEIT on 24.08.2022. The record further reveals that respondent No.1 constituted a tendering committee for finalizing a comprehensive Tender Document and for floating an e-Tender for conducting the computer based tests by the J&K Services Selection Board.
The record further reveals that pursuant to the issuance of e-NIT No.18 of 2022 dated 05.09.2022, the tendering Committee constituted vide order No.260 dated 25.08.2022 held a pre-bid meeting with prospective bidders on 12.09.2022, which is evident from the communication dated 09.09.2022. Pursuant thereto, from the record note of the pre-bid meeting, it is apparent that the prospective bidders highlighted various issues including pre bid queries on various clauses and items included in the Tender Document as uploaded by respondent No.1 The record note further reveals that the queries were deliberated upon by the members of the tendering committee and the copies of the Pre-Bid queries were retained by the Tendering Committee for its decision, to be recorded against each pre-bid query on 13.09.2022.
High Court after gone through the original record with regard to the pre-bid queries of M/s Aptech and other agencies and subsequent decision thereof. The record nowhere reveals that what weighed with the authorities to change the terminology of the affidavit and what weighed with the authorities to re-cast the condition No.3 of the Affidavit by virtue of a corrigendum and subsequently issuance of a fresh tender dated 30.09.2022 vide e-Tender Notice No.19 of 2022.
Justice Wasim Sadiq Nargal fater gone through the record minutely observed that how and under what circumstances, the conditions were tailor-made for respondent No.2 is not forthcoming from the record and what weighed with respondent No.1 to carry out changes is also not borne from the record. The record further reveals that on 29.09.2022 tenders received against e-NIT No.18 of 2022 were opened and it was found that four agencies, namely, Eduquity Career Technologies Pvt. Ltd., Ava Systems, Cygnus Information Solutions Pvt. Ltd and Aptech Ltd had participated and on the same day a decision was taken to cancel the tenders and floating of fresh tenders recommended.
On 22.10.2022, Tenders received against e-NIT No.19 of 2022 were opened and it was found that five agencies namely Ava Systems, Diversified Business Solutions Pvt. Ltd., Aptech Ltd., Cygnus Information Solutions Pvt. Ltd. And Eduquity Career Technologies Pvt. Ltd. had participated. Eligibility document submitted by the agency were evaluated and it was found that all three agencies have submitted deficient documents and two agencies namely Aptech and Edquity has submitted all the required documents and accordingly were declared eligible for stage 2, Technical evaluation and presentations. On 25.10.2022, Both the stage 1 qualified agencies were evaluated technically and presentations were taken from them. The technical stage result was issued on 28.10.2022 wherein respondent No.2 obtained 63/70 and Eduquity obtained 66.5/70. On 31.10.2022, Financial bids of both the agencies opened and as per the tender conditions Aptech obtained 30/30 and Eduquity obtained 23.9875/30 points. Final cumulative score obtained by Aptech and Eduquity were 93 and 90.4875 respectively. The Aptech was declared successful as per the tender conditions. On 03.11.2022, Final negotiations on quoted rates held with Aptech Ltd and award of contract in favour of Aptech Ltd. is recommended by the Govt. constituted Purchase Committee of JKSSB. On 04.11.2022, Contract was awarded in favour of Aptech Ltd. and Letter of Intent was issued. On 05.12.2022, Exams of Junior Engineer (Civil) Jal Shakti Department scheduled to be conducted on 5th and 6th December, 2022 in four shifts across different centres in the Union Territory and admit cards (first stage) have been issued. On 07.12.2022, Exams of Sub Inspector Home Department is Scheduled to be conducted from 7th December to 19th December, 2022 in 22 shifts across different centres in the Union Territory.
High Court further observed that from a perusal of the record, it appears that the SSB in view of the recent developments, has admitted its fault and accordingly, a conscious decision was taken for serious audit of the entire recruitment process as well as the agencies engaged/empanelled for conduct of examination by the JKSSB, wherein it was observed that the candidate’s faith was the paramount importance and a decision was taken that the Board shall conduct all the examinations through CBT mode only while taking the decision to float fresh tender for empanelling the most suitable agency for conducting the examinations.
It is not so even, respondent No.2, whose action are being investigated by the premier agency of the Country i.e. CBI and the challan has also been produced with regard to the recruitment of Sub Inspectors and Junior Engineer in Jal Shakti Department, respondent No.1 has yet again altered/changed the terms and conditions of the NIT with a view to favour their own blue-eyed persons i.e. respondent No.2 by annulling/cancelling the earlier tendering process and initiating fresh process again by issuing a fresh tender by way of changing the conditions, which were tailor-made just to give benefit to respondent No.2 so that respondent No.2 is not ousted from the zone of competing or award of contract. The SSB has, in a way, altered the terms and conditions of the NIT by incorporating negative conditions and relaxing the terminology of the affidavit by incorporating that “The Firm/Agency is not involved in any ongoing investigation by any investigating agency related to conduct of CBT exams. Further, Firm/Agency is not blacklisted/debarred by any Govt. body. Institution/Board/PSU of the country as on date ” when in the earlier tender notice, which was cancelled, the terminology in the affidavit was that “the Firm has never been blacklisted in the past, by any Govt./Private Institution of the country and there is no case pending in any Investigating Agency”.
Court further observed that since respondent No.2 was already blacklisted in the past and there was a case pending with the investigating agency, the aforesaid condition was relaxed with a view to shower undue benefit on respondent NO.2 and the conditions were tailor-made so that respondent No.2 is not ousted from the consideration zone or award of contract.
The entire action of the SSB by relaxing the aforesaid conditions smacks foul play and leads to an irresistible conclusion that the SSB was bent upon to engage a previously blacklisted/tainted agency when already SSB’s actions are being investigated/enquired by the CBI for awarding contract to a tainted agency in the past. By way of aforesaid action, the fundamental rights of all the participants, which are guaranteed by Article 16 of the Constitution have been infringed i.e. their right to participate in a fair and transparent manner selection process has been infringed by the impugned action on part of SSB by awarding contract in favour of a tainted agency. It goes without saying that right to participate in a selection process does not mean a mere minimal participation in a process, but which is fair and transparent and not loathed with mala fide consideration. No rational whatsoever is forthcoming from the record supplied to this Court for withdrawing the earlier NIT and initiating the fresh tendering process by altering the terms and conditions of the NIT with a view to favour a tainted/blacklisted agency, Court observed.
Justice Wasim Sadiq Nargal holds that merely that respondent No.2 has excelled in financial bid will not be the sole criteria to award contract, when admittedly in the technical evaluation the Respondent No.2 was not upto mark. The public interest has to give way to commercial interest because in the present case it involves career of so many aspiring candidates, who will compete in the process of selection and the award of contract in such like cases can, in no way, be given to an agency, which is tainted and already blacklisted in the past.
In the present case, a blacklisted agency has been allowed to compete in the tendering process and the commercial interest has outweighed the public interest and, thus, the decision taken by respondent No.1 to award contract in favour of respondent No.2 cannot sustain the test of law, as there is every likelihood of biasness, favourtism and unfairness in the said process. What was the larger public interest in altering the terms and conditions of the NIT issued by respondent No.1, initially by way of a corrigendum and subsequently by way of issuing fresh NIT, is not borne out from the record nor any reason has been spelt out from the record supplied to this Court. Respondent No.2 has already been involved in various malpractices and irregularities and was blacklisted by UPPCL. Besides, respondent No.2 was also involved in malpractices in Rajasthan Police constable recruitment, in Irrigation Department of the State of Assam, Allahabad High Court NTA, UPPCL etc. Even High Court of Delhi has imposed fine of Rs.10,00,000/- on respondent No.2. While passing the aforesaid judgment, High Court of Delhi has observed that the organization resorting to or permitting malpractices at institutional level should be kept at bay by bodies conducting public exams. Yet inspite of the clear cut direction issued by the Delhi High Court, contract has been given to respondent No.2 without any justifiable cause. Respondent No.2 in the present case has been granted permission to conduct the examination on behalf of respondent No. 1 and the unfairness in the selection process and the anomalies keeping in view the past conduct of respondent No.2 cannot be ruled out, which will be against the basic principle of fairness and equity, as envisaged under Article 16 of the Constitution of India. The nature of conducting public examinations requires high degree of secrecy/fairness as future of lacks of aspirants would depend upon such examination. The conduct of public examination by the Government or any instrumentality like respondent No.1 is a matter of trust and utmost faith and what impression can be gathered if such contract is given to a agency, which was blacklisted in the past, to conduct the selection process where career of lacks of aspirants are at stake. It is pertinent to mention here that a fair and reasonable selection process is a fundamental requirement under Article 14 and Article 16 (1) of the constitution. Respondent No.1 ought to have acted in public interest outweighing the commercial interest even if it costs more to the State exchequer.
Justice Wasim Sadiq Nargal further observed that keeping in view the past incidents, which have occurred and are subject matter of investigation by the CBI, again respondent No.1 has given the contract to a tainted service provider to conduct the public employment examinations, this Court is completely agree with a view taken by Delhi High Court in a case titled M/s Aptech Limited, supra that organizations resorting to, or permitting malpractice at an institutional level should be kept at bay, by bodies (SSB in the present case) conducting public examination and such conduct ought not to be condoned. It would be a different matter if there are stray incidents where an employee, or some employees, may show weakness of character and indulge in isolated acts of malpractice. However, if such malpractices are adopted by an organization (M/s Aptech Limited) itself, or are facilitated by the organization itself, it is very different matter, and is indeed a serious matter since it reflects adversely on the intent of the management of the organization itself.
Justice Wasim Sadiq Nargal is of the opinion that the process adopted /decision made by the awarding contract to Respondent No. 2 (M/s Aptech Limited) is malafide and change of condition in tender was intended to favour Respondent No.2 and these decisions will have an effect on public interest as the Respondent No. 2 has been assigned to conduct examinations, wherein the selectees will be appointed to hold public posts, accordingly this writ petition is allowed and the contract awarded by respondent No.1 in favour of respondent No.2 pursuant to e-NIT No.19 of 2022 dated 30.09.2022 for conduct of its various examinations through computer based tests mode is quashed. Consequently, all the exams viz Junior Engineer-civil (Jal Shakti Department) and Sub Inspector (Home Department) held by respondent No.1 through respondent no. 2 in furtherance of the aforementioned “award of contract to conduct examinations” are also set aside/cancelled at whatever stage they are as on date and directed Govt to constitute a high level Committee headed by not less than a retired High Court Judge to enquire into the conduct of Jammu and Kashmir Service Selection Board for the their brazen irregularities/illegalities in changing the terms/conditions of the tender, also as to what weighed with them to award a contract to conduct an examination by an organization which has previously facilitated malpractices in public examinations and accordingly appropriate action be initiated against those found guilty.