Himanshu v. Delhi Skill and Entrepreneurship University

Delhi High Court · 14 Sep 2023 · 2023:DHC:7225

Chandra Dhari Singh

W.P.(C) 17595/2022

2023:DHC:7225

administrative petition_dismissed Significant

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The Delhi High Court upheld the cancellation of a recruitment examination by DSEU due to systemic irregularities, holding that such cancellation is justified to preserve the sanctity of the selection process and does not violate constitutional equality rights.

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W.P.(C) 17595/2022
HIGH COURT OF DELHI
Date of order :14th September, 2023

W.P.(C) 17595/2022 and CM APPL. Nos. 56254/2022 and
47514/2023 HIMANSHU ..... Petitioner
Through: Ms.Mudita Sharda and Ms.Gayatri Nandwani, Advocates (through VC)

VERSUS

DELHI SKILL AND ENTREPRENEURSHIP UNIVERSITY AND
OTHERS ..... Respondents
Through: Mr.Shivendra Singh and Mr.BikramDwivedi, Advocates for R-
1 and R-2 Ms.Laavanya Kaushik, Advocate for Ms.Avnish Ahlawat, SC for GNCTD

CORAM:

HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
CHANDRA DHARI SINGH, J (Oral)

ORDER

1. The petitioner vide the present petition under Article 226 of the Constitution of India seeks the following prayers:

“A. Issue a Writ Order or a direction in the nature of Certiorari for quashing and setting aside the impugned Notice dated26.10.2022 issued by Respondent No. I cancelling Computer Based Recruitment Test ('CBRT) held on 14- 15.07.2022 for 48 Posts of Junior Assistant/Office Assistant (Post Code-0111202101, Advt. no. 0111112021); and/or

B. Call for details of Committee Members on whose recommendation the Computer Based Recruitment Test ('CBRT) held on 14-15.07.2022 for 48 Posts of Junior Assistant/Office Assistant (Post Code-0111202101, Advt. no.01111/2021) has been cancelled; and/or

C. Copy of any other documents/records of Respondent

No.1basis which the Computer Based Recruitment Test ('CBRT)held on 14-15.07.2022 for 48 Posts of Junior Assistant/Office Assistant (Post Code-0111202101, Advt. NO. 01111/2021) has been cancelled; and a) Pass any other Order(s) that this Hon'ble Court may deem fit in interest of justice, equity and good conscience.”

2. The relevant facts of the present petition are recapitulated as follows: a) The Delhi Skill and Entrepreneurship University (hereinafter “DSEU”) invited applications for the post of Junior Assistant/Office Assistant vide advertisement dated 1st November 2021. A total of 42 vacancies were advertised and the closing date for submitting the online application form was 20th December 2021. b) The scheme of the exam was to be conducted in two tiers i.e., a written examination and a Computer Based Recruitment Test (hereinafter CBRT) upon clearing the same, the petitioner/candidate would be short listed for the Skill/Typing Test. Vide Notice dated 10th March 2022, DSEU communicated that the CBRT is to be held on 21st March 2022. Admit cards were issued to the petitioner who participated in the said exam. c) Vide Notice dated 26th April 2022, DSEU canceled the CRBT conducted on 21st March and subsequently vide notice dated 17th June 2022, DSEU declared that the CRBT would be conducted on 14th & 15th July, 2022 following which fresh admit cards were issued but the roll numbers of the petitioner remained the same as before. d) DSEU declared the list of candidates who were shortlisted for the Skill Test, which included the petitioner. e) The Skill/Typing Test was conducted by DSEU on 7th August 2022 and the petitioner participated in the same. f) DSEU declared the list of the selected candidates as well as wait listed candidates vide notice dated 23rd August 2022. A total of 48 candidates were selected and 156 were waitlisted. The petitioner was selected for the appointment of the post of Junior Assistant/Office Assistant. g) Subsequently, vide notice dated 26th October 2022 (hereinafter impugned notice), DSEU cancelled the CBRT as conducted on 14th & 15th July 2022. h) Two FIRs bearing No.0090 dated 14th July 2022 and 0044 dated 27th July 2022 were registered by DSEU by way of which it is clear that only three persons were allegedly suspected of cheating which makes it evident that there was no mass cheating. i) The petitioner made a representation and served a legal notice upon DSEU on 1st November 2022, however no response has been received for both. j) Being aggrieved by the inaction on behalf of the respondent, and the impugned notice dated 26th October 2022, whereby DSEU cancelled the CBRT which was conducted on 14th & 15th July 2022, the petitioner has preferred the instant petition.

3. Learned counsel appearing on behalf of the petitioner submitted that the impugned notice issued by DSEU is unfair, unjust and arbitrary, further, cancellation of the CBRT without any reasonable explanation has caused immense hardships to the petitioner and other candidates.

4. It is submitted that DSEU was already aware of the fact that there may have been malpractices on behalf of some of the candidates appearing for the CBRT, despite which DSEU went ahead and issued a list of short-listed candidates.

5. It is submitted that the petitioner's candidature has been cancelled without a justifiable reason as the act of cheating took place at a different exam centre altogether.

6. It is also submitted that the petitioner or any of the other candidates were not given a chance to be heard or provide an explanation to their case with regard to cancellation of CBRT, which is violative of the principle of natural justice.

7. It is therefore submitted that the impugned notice dated 26th October 2022 is in violation of Articles 14 &16 of the Constitution of India and is liable to be set aside.

8. Per Contra, learned counsel appearing on behalf of the respondents vehemently opposed the arguments advanced on behalf of the petitioner submitting that vide order dated 10th November 2022, this Court had issued a notice, thereby, restraining DSEU from taking steps to conduct a fresh CBRT for filling up the posts of Junior Assistant which is the subject matter of the impugned notice dated 26th October 2022 and the same has been complied with by the DSEU.

9. It is submitted that setting aside of the impugned notice dated 26th October 2022, is not justified as the decision-making process is not arbitrary and has been arrived at after due application of mind and with the purpose of preserving the sanctity of the recruitment process.

10. It is further submitted that the candidates i.e., petitioner herein cannot claim violation of the Fundamental Right of equality if the authority cancels the recruitment due to irregularities or unfair means detected in the recruitment process. The said irregularities are evident from the two FIRs registered bearing No.0090 dated 14th July 2022 and 0044 dated 27th July 2022, and the investigation of the same is still underway.

10. It is submitted that more than 90% of the candidates in the said recruitment process belong to one geographical location, which is highly unusual and casts a doubt of the integrity of the recruitment process.

11. It is, therefore, submitted that the impugned notice is not arbitrary and unjustified, and the present petition is liable to be dismissed.

12. Heard the parties and perused the record.

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13. It is the case of the petitioner that vide notice dated 1st November 2021, DSEU invited applications for the post of Junior/Office Assistant and the recruitment process of the same was to be conducted in two tiers i.e., a written examination followed by a CBRT and the candidates who cleared the CBRT would further have to appear in a Skill/Typing Test. The petitioner appeared for the CBRT and the same was cancelled twice and subsequently rescheduled by DSEU due to malpractices detected in the recruitment process. The third time the CBRT was conducted, the petitioner was short listed for the skill test and subsequently selected for the post of Junior/Office Assistant, however, the CBRT was cancelled for the third time vide impugned notice dated 26th October 2022 due to certain malpractices allegedly being detected in the examination process.

14. It is contended by the petitioner that the impugned notice was arbitrary and unjustified, and the DSEU’s action cancelling the entire examination is unreasonable and therefore, is in violation of Articles 14 & 16 of the Constitution of India.

15. The issue before this Court is whether or not DSEU’s action of cancelling the examination was justified in view of the fact that there were certain irregularities and malpractices detected during the examination process.

16. The Hon’ble Supreme Court in its judgment titled Sachin Kumar & Ors (Supra), held as follows:

“F. The position in law In deciding this batch of SLPs, we need not reinvent the wheel. Over the last five decades, several decisions of this Court have dealt with the fundamental issue of when the process of an examination can stand vitiated. Essentially, the answer to the issue turns upon whether the irregularities in the process have taken place at a systemic level so as to vitiate the sanctity of the process. There are cases which border upon or cross over into the domain of fraud as a result of which the credibility and legitimacy of the process is denuded. This constitutes one end of the spectrum where the authority conducting the examination or convening the selection process comes to the conclusion that as a result of supervening event or circumstances, the process has lost its legitimacy, leaving no option but to cancel it in its entirety. Where a decision along those lines is taken, it does not turn upon a fact-finding exercise into individual acts involving the use of malpractices or unfair means. Where a recourse to unfair means has taken place on a systemic scale, it may be difficult to segregate the tainted from the untainted participants in the process. Large-scale irregularities including those which have the effect of denying equal access to similarly circumstanced candidates are suggestive of a malaise which has eroded the credibility of the process. At the other end of the spectrum are cases where some of the participants in the process who appear at the examination or selection test are guilty of irregularities. In such a case, it may well be possible to segregate persons who are guilty of wrongdoing from others who have adhered to the rules and to exclude the former from the process. In such a case, those who are innocent of wrongdoing should not pay a price for those who are actually found to be involved in irregularities. By segregating the wrongdoers, the selection of the untainted candidates can be allowed to pass muster by taking the selection process to its logical conclusion. This is not a mere matter of administrative procedure but as a principle of service jurisprudence it finds embodiment in the constitutional duty by which public bodies have to act fairly and reasonably. A fair and reasonable process of selection to posts subject to the norm of equality of opportunity under Article 16(1) is a constitutional requirement. A fair and reasonable process is a fundamental requirement of Article 14 as well. Where the recruitment to public employment stands vitiated as a consequence of systemic fraud or irregularities, the entire process becomes illegitimate. On the other hand, where it is possible to segregate persons who have indulged in malpractices and to penalise them for their wrongdoing, it would be unfair to impose the burden of their wrongdoing on those who are free from taint. To treat the innocent and the wrongdoers equally by subjecting the former to the consequence of the cancellation of the entire process would be contrary to Article 14 because unequals would then be treated equally. The requirement that a public body must act in fair and reasonable terms animates the entire process of selection. The decisions of the recruiting body are hence subject to judicial control subject to the settled principle that the recruiting authority must have a measure of discretion to take decisions in accordance with law which are best suited to preserve the sanctity of the process. Now it is in the backdrop of these principles, that it becomes appropriate to advert to the precedents of this Court which hold the field.”

17. By way of case titled Sachin Kumar & Ors (Supra), the Hon’ble Supreme Court observed that even though the Courts have been dealing with issues related to examination process being vitiated, it has now become imperative to analyse whether such irregularities have taken place at a methodological level so as to corrupt the examination process. There are instances where the process loses its credibility and validity because it approaches or enters the realm of fraud. This is one end of the spectrum when the authority conducting the exam or convening the selection process determines that due to intervening circumstances or events, the procedure has lost its validity and there is no choice but to cancel it entirely.

18. It is a well settled principle of law that the selection process cannot be tainted. Maintaining the sanctity of the selection process is of utmost importance while conducting an examination of any kind. Any tampering with the same might result in suffering caused to the candidates who participate in such examination process with honesty, however, there may be certain situations wherein the nature of the irregularities may be varied making it impossible to determine the number of candidates involved in the said irregularity.

19. The above stated principles surrounding malpractices/irregularities have been discussed in a catena of judgments of the Hon’ble Supreme Court and High Courts. The Bombay High Court in case titled Sonali Shivram Duparev. Thane District Central Coop. Bank, 2023 SCC OnLine Bom 58, held as follows:

15. Coming to the last issue, in view of our findings that the recruitment process itself was irregular, should the entire examination or selection process conducted be cancelled or only of all those candidates, in whose case malpractice could have been committed have to be cancelled. Answer to that we find in the judgment of the Apex Court in Gohil Vishvaraj Hanubhai v. State of Gujarat, (2017) 13 SCC 621: 2017 Mah LJ OnLine (S.C.) 135. In that case, Scrutiny of the answer sheets (OMR) revealed that there were glaring aberrations which provided prima facie proof of the occurrence of large scale tampering of the examination process. One of the issue that came up for consideration was whether the entire examination process should be cancelled or only of those class who had resorted to malpractice. The Apex Court came to the conclusion that the entire examination process should be cancelled and that would not be violative of Article 14 of the Constitution of India, since all candidates would get opportunity to participate in fresh examination process. Paragraphs 21 to 30 of the said judgment read as under:

“21. Purity of the examination process - whether such examination process pertains to assessment of the academic accomplishment or suitability of candidates for employment under the State - is an unquestionable requirement of the rationality of any examination process. Rationality is an indispensable, aspect of public administration under our Constitution. The authority of the State to take appropriate measures to maintain the purity of any examination process is unquestionable. It is too well settled a principle of law in list of the various earlier decisions of this Court that where there are allegations of the occurrence of larse scale malpractices in the course of the conduct of any examination process, the State or its instrumentalities are entitled to cancel the examination. [81 This Court has on numerous occasions approved the action of the State or its instrumentalities to cancel examinations whenever such action is believed to be necessary on the basis of some reasonable material to indicate that the examination process is vitiated. They are also not obliged to seek proof of each and every fact which vitiated the examination process. 22. Coming to the case on hand, there were allegations of large scale tampering with the examination process. Scrutiny of the answer sheets (OMR) revealed that there were glaring aberrations which provide prima facie proof of the occurrence of a large scale tampering of the examination process. Denvins power to the State from taking appropriate remedial actions in such circumstances on the ground that the State did not establish the truth of those allegations in accordance with the rules of evidence relevant for the proof of facts in a Court of law (either in a criminal or a civil proceeding), would neither be consistent with the demands of larger public interest nor would be conducive to the efficiency of administration. No binding precedent is brought to our

notice which compels us to hold otherwise. Therefore, the 1st submission is rejected…”

20. In light of the above discussion, this Court is of the considerable view that it is regrettable that the candidates appearing for such competitive examinations examinations pertaining to recruitment have to resort to such methods in order to succeed in such examinations and as a result of the same innocent and sincere students become victims of such disorderly conduct of their colleagues. Such situations do not leave the State or its agencies with any other option but to cancel the examination altogether.

21. It is observed that it becomes extremely difficult for the agencies conducting such examinations to determine and identify exactly how many students have engaged in such malpractices and irregularities.

22. In the present case the CBRT, a computer-based examination was tampered with, which is evident by the two FIRs filed by DSEU, following which the examination had to be cancelled three times. The very integrity of the entire selection process was compromised and DSEU could not determine the extent to which the entire process was compromised and hence, had to resort to cancelling the entire examination process, in order to protect the sanctity of the recruitment process.

23. The entire facts and circumstances have been taken into consideration and in view of the same, it is hereby, held that the petitioner has failed to put forth such propositions that would warrant the interference of this Court under its writ jurisdiction.

24. In view of the above discussions of facts and law, this Court is of the opinion that a writ of mandamus or any other writ cannot be issued in this instant petition, as DSEU was well within its authority when it canceled the examination process, in order to maintain the sanctity of the same.

25. Based on the aforementioned discussions, the writ petition is accordingly, dismissed.

26. Pending applications, if any, also stand dismissed.

27. The order be uploaded on the website forthwith.

Himanshu v. Delhi Skill and Entrepreneurship University

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