Jammu August-31-2023:- In a petition 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 Moksha Khajuria Kazmi of Jammu & Kashmir and Ladakh High Court after hearing Rohit Matoo for the petitioners, whereas AAG Amit Gupta for the UT, disposed of the petition with the direction to the JKSSB not to proceed with the selection process till the final decision is taken by the Government.
Justice Moksha Khajuria Kazmi also directed Chief Secretary hall take a decision on the basis of the report/recommendations made by the Review Committee within a period of ten days thereafter.
Justice Moksha Khajuria Kazmi observed that though, the instant petition is only based on allegations and apprehensions but the appointments to public posts should be made strictly in consonance with Articles 14 and 16 of the Constitution of India. A fair and reasonable process is a fundamental requirement of equality of
opportunity. As on date, no prejudice has been caused to the petitioners but they have an apprehension of adverse consequences from the selection process conducted by the respondents. The grievance of the petitioners has already been taken note of by the Government by constituting the Review Committee to look into the conduct of JKSSB and M/S Aptech Ltd., in order to build confidence of the aspirants. The Review Committee should have submitted the report by now, which could have either washed away the apprehensions of the petitioners or enhanced faith in the respondents.
Court further observed that Apex Court in ‘Sachin Kumar and others vs. Delhi Subordinate Service Selection Board (DSSSB) and others’,held as under: “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 mal-practices and to penalize them for their wrongdoing, it would be unfair to impose the burden of their wrong-doing on those who are free from taint. To treat the innocent and the wrong¬doers 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.”
Court further observed that since the Government has already addressed the apprehensions alleged by the petitioners by constituting the Review Committee vide Government Order No. 487-JK (GAD) of 2023 dated 22.04.2023, therefore, it would be appropriate to direct the Review Committee to submit its report after deliberating into the issues in the said Government Order, as such, this Court is refraining from exercising its extraordinary jurisdiction under Article 226 of the Constitution of India.
High Court further observed that in view of the factum of the constitution of the Review Committee by the Government and keeping in view the fact that the said decision has neither been challenged by the petitioners nor by the aspirants, this Court deems it appropriate to dispose of the writ petition to a limited extent as
indicated above by directing as under that tehe Review Committee constituted in terms of Government Order No. 487-JK (GAD) of 2023 dated 22.04.2023, shall
submit its report within a period of ten days from the date of passing of this judgment. The Chief Secretary shall take a decision on the basis of the report/recommendations made by the Review Committee within a period of ten days thereafter. The decision of the Chief Secretary shall be communicated to the Secretary, JKSSB, who is directed to proceed strictly in accordance with the decision taken by the Government. However, till the final decision is taken by the Government, the JKSSB shall not proceed with the selection process, Court ordered. JNF