Govt asked to conduct inquiry into irregularities, illegalities
Strictures passed against premier recruiting agency of UT
Mohinder Verma
JAMMU, Dec 8: In a landmark judgment aimed at checking biasness, favouritism and unfairness in the functioning of the premier recruiting agency of the Union Territory of Jammu and Kashmir, High Court has quashed the contract awarded to previously blacklisted and tainted company by the Services Selection Board for conduct of examinations for the posts of Junior Engineer (Civil) Jal Shakti Department and Sub-Inspector Home Department.
Moreover, the High Court has set-aside and cancelled all the examinations being conducted in furtherance of award of contract at whatever stage they are as on date and directed the Government to constitute a high-level committee headed by not less than a retired High Court Judge to enquire into the conduct of J&K Services Selection Board for their brazen irregularities/illegalities in facilitating award of contract to a choicest company for conduct of examinations.
The judgment has been delivered by Justice Wasim Sadiq Nargal in a petition filed on behalf of the petitioners, 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 prayed before the High Court that Services Selection Board (SSB) should not be allowed to conduct the examination through M/s Aptech Limited, blacklisted in the past, and some other agency should be selected for conduct of examinations through Computer Based Test Mode (CBTM).
According to the petitioners, prior to this, SSB had previously floated a tender for empanelment of agency for conduct of its various examinations through Optical Mark Recognition (OMR) mode and in that one ND Info Systems Private Limited was the successful bidder but Board 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 examinations conducted by Merit Track Services Pvt Ltd were compromised as papers were leaked, as a consequence of which these two examinations among others were scrapped and matter at present is being investigated by the Central Bureau of Investigation (CBI), which recently filed charge-sheet in these matters.
In fresh NIT for conduct of these examinations again, it was clearly mentioned that the agency was under an obligation to submit a declaration that it has never been blacklisted in the past by any Government or private institution of the country and there is no case pending in any investigation agency.
Since M/s Aptech Limited did not fulfill this criteria, SSB with a view to award contract in favour of the agency, issued a corrigendum No.01 dated 14.09.2022 to e-NIT No.18 of 2022 dated 05.09.2022, wherein amongst other conditions, this clause in the affidavit was changed with a view to lift the rider for company to participate in the tendering process and ultimately contract was awarded in its favour.
It was specifically pleaded by the petitioners that M/s Aptech Limited has already been involved in various malpractices and irregularities and has been blacklisted by the UP Power Corporation Limited (UPPCL). The company was also involved in malpractices in Rajasthan Police Constable Recruitment Exam which was cancelled later on. Even Delhi High Court has also imposed a penalty of Rs 10 lakh on this company for their malpractices.
After hearing Advocate Abhishek Gupta for the petitioners, Deputy Advocate General Rahul Sharma for the SSB and Senior Advocate Abhinav Sharma with Advocate Sidhant Gupta for M/s Aptech Limited, Justice Wasim Sadiq Nargal observed, “I have 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 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”.
“How and under what circumstances, the conditions were tailor-made for M/s Aptech is not forthcoming from the record and what weighed with SSB to carry out changes is also not borne from the record”, High Court said, adding “by way of the mala fide exercise of power, right of the participants to participate in a selection process for a public post in a fair and transparent manner has also been infringed and thus, the petitioners, who are aspiring candidates for such positions have a locus to call in question the mala fide action of SSB and, thus, the writ petition filed by the petitioners is maintainable”.
Stating that in the present case the legitimate expectation of the aspiring candidates for participating in a fair and transparent recruitment process has been infringed, which can be the basis for judicial review, Justice Nargal said, “the entire action of the SSB by relaxing the 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 this action, the fundamental rights of all the participants, which are guaranteed by Article 16 of the Constitution, have been infringed. 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”, Justice Nargal said, adding “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”.
High Court further said, “the illegalities in the present case are not isolated individual acts of malpractice but systemic illegalities that raises serious questions regarding the legitimacy of the entire selection/tender process”, adding “State and its instrumentalities cannot treat unequal as equals as that would be in violation of Article 14 of the Constitution. The action of SSB to cancel the earlier tender notice was worse than the problem. Altering the terms and conditions of the tender document and the affidavit class, SSB, in a way, has put both categories, tainted and the rest at par, which is highly unjustified, arbitrary and unconstitutional being violative of Article 14 of the Constitution”.
“The public authority even in contractual matters like SSB is not having unfettered discretion but the same should be exercised reasonably. Merely that the SSB has certain elbow room available for use of discretion in accepting offer in contracts, the same is still bound by and ought to be done within the four corners of the requirements of law, especially Article 14 of the Constitution”, Justice Nargal said, adding “in such eventuality, the court can interfere when the policy or the decision with regard to the award of contract is arbitrary, discriminatory/ mala fide”.
The SSB, as per their own admission, was in the process of adopting confidence building measures amongst students and various aspirants as their action in the past was already under cloud and matter of investigation by the CBI but SSB has again perpetuated the illegality and procedural impropriety by way of awarding the contract to a company, which is a tainted and blacklisted agency, High Court said.
“Keeping in view the past incidents, which have occurred and are subject matter of investigation by the CBI, again SSB has given the contract to a tainted service provider to conduct the public employment examinations, I completely agree with a view taken by Delhi High Court in a case titled M/s Aptech Limited 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”, High Court said.
“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 Nargal said.
Stating that process adopted /decision made by the awarding contract to M/s Aptech Limited is malafide and change of condition in tender was intended to favour company and these decisions will have an effect on public interest, High Court quashed the contract awarded by SSB 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 test mode.
“Consequently, all the exams viz Junior Engineer-Civil (Jal Shakti Department) and Sub Inspector (Home Department) held by SSB through M/s Aptech Limited in furtherance of the award of contract to conduct examinations are also set aside/cancelled at whatever stage they are as on date”, High Court ordered and directed the Government 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.
“Further, I would like to say 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”, Justice Nargal said, adding “it has become incumbent on all stake holders to review the functioning of the Board”.
Follow our WhatsApp channel
